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.
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."
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.
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.
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."
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.”
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.
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.”
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.
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.
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.
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.
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:
From the Atlanta Journal-Constitution here, "Georgia rethinks its prison stance."
From the Kansas City Star here, "Tougher sentences boost cost of justice in Kansas; State officials consider early release, prevention methods in response to overcrowding and reduced funds."
From the Oregonian here, "Bring on the debate over corrections."
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.”
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.
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.
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.
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:
- ESPN analyst Jalen Rose (sort of) gets max jail sentence for drunk driving
- Documenting drunk driving sentencing disparities in Detroit
- Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough
- Effective commentary complaining about undue leniency for drunk drivers
- USA Today reports on national differences in punishment for drunk drivers
- Is it time for Texas to consider making drunk driving a potential capital offense?
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.
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."
Friday, November 11, 2011
New SLR Online gets started with great piece on "California's De Facto Sentencing Commissions"
I 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.
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.
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.
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."
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”
I 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.
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.
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.
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!)
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.
- A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!
- FAMM amicus brief assails life (with parole) sentence for woman who let teen touch breasts
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.
Monday, August 22, 2011
Why Iowa is a state to watch for sentencing fans and researchers (as well as political junkies)
From straw polls to caucuses, political junkies know that Iowa is a special state in the election season. But this recent article from the Des Moines Register, which is headlined "Hundreds of Iowa inmates could be released on ruling," highlights why sentencing fans also should be watching the state closely in the months ahead:
The Iowa Department of Corrections will have to parole or discharge hundreds and possibly thousands of Iowa inmates early - some of them dangerous - because of a recent Iowa Supreme Court ruling, a state official confirmed Thursday night.
Fred Scaletta, a spokesman for the department, said the department is recalculating the sentences of roughly 3,200 convicts whose time under corrections supervision is affected by the ruling last month. Officials plan to inform the Board of Corrections today at a meeting in Fort Dodge about the effects of the court decision.
The Iowa Supreme Court ruled unanimously in July that state law mandated that a convicted sex offender should receive credit for time served while under home supervision, even though he violated probation while at home....
Scaletta said that decision now applies to all defendants whose probation was revoked, regardless of their crime. "We just don't know how many there will be. We're having to do each defendant by hand," he said. "We're on it. We want to get this done as quickly as we possibly can." The department also must notify the defendants' victims.
A helpful reader altered me to this story and provided these follow-up statistics about the import and impact of what the Iowa Supreme Court has wrought:
The headline [of ther Register article] understates what is going to happen. The Iowa Department of Corrections is going to have to release the following (this is clipped from an email Iowa DOC sent to all County Attorneys last week):Currently in Prison = 2,152Currently in Prison and there are civil commitment issues needing addressed = 117Currently on Work Release = 165Currently on Parole = 1010Total = 3,444
They have said this will happen “immediately or within a short time.” [Because the Iowa] inmate count is 8775 ... within a short time the Iowa prison system is going to release approximately one quarter of the inmates ... [and] the parole rolls are going to drop by about 33%."
In other words, Iowa is about to have a court-ordered rapid experience with decarceration. I think all persons concerned with both mass incarceration and crime rates ought to be keeping a very close watch on how all this new freedom in Iowa plays out.
UPDATE: Thanks to commentor Robert for tracking down the Iowa Supreme Court opinion causing the commotion in the Hawkeye State. The unanimous opinion in Anderson v. Iowa, No. 09-0507 (Iowa July 29, 2011) (available here), gets started this way:
“Ours not to reason why, ours but to read, and apply. It is our duty to accept the law as the legislative body enacts it.” Holland v. State, 253 Iowa 1006, 1011, 115 N.W.2d 161, 164 (1962) (Thompson, J.). In this case we must decide whether a convicted sex offender incarcerated after revocation of his probation is entitled to credit against his prison sentence for time spent living at home under supervised probation wearing an electronic monitoring device on his ankle. The district court denied the credit, and a divided court of appeals affirmed. Although it is counterintuitive to count days living at home against a state prison sentence, we conclude the plain language of Iowa Code section 907.3(3) (2007), requires credit for the time Anderson was committed to electronic monitoring and home supervision during his probation. We therefore vacate the decision of the court of appeals, reverse the district court ruling, and remand for entry of an order providing that sentencing credit.
August 22, 2011 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack
Monday, August 15, 2011
The persistent challenges of sentencing reform efforts on display in Arkansas
This interesting local article from Arkansas, which is headlined "New sentencing law already being questioned; hearing set," spotlights that opponents of legislative sentencing reform rarely go away after enactment and will sometimes clamor for reform of reforms even before the ink is dry. Here is hw the piece starts:
Less than a month old, state prison reforms intended to ease overcrowding and slow the rise of prison costs are already being criticized as overly burdensome and, in come cases, too lenient. A legislative hearing is scheduled for Sept. 23 to field concerns. The most vocal critics are lawmakers who opposed legislation during this year’s regular session that became Act 570 of 2011.
“We knew all along that change scares people,” said Matt DeCample, spokesman for Gov. Mike Beebe, who pushed the new guidelines. “I doubt that they’re going to get much useful information, but we’re not going to resist anyone’s efforts to meet and talk about things.”
Critics complain some of new guidelines pose potential hardships for county sheriffs while others, including reducing the penalty for possession of less than a half-ounce of marijuana from a felony to a misdemeanor, are just not right. “I continue to believe that this is not the best route for us to take to reduce our prison costs,” said Rep. Nate Bell, R-Mena. He and Rep. David Sanders, R-Little Rock, asked for a hearing next month before the Legislative Joint Performance Review Committee.
Bell said it’s not too soon to start asking questions about the law, which took affect July 27. “It is too early to assess the affects of the law, obviously, but I believe that the folks that are directly impacted with having to implement it … ought to have their voices heard at this point,” he said.
Supporters of Act 570 say they welcome the opportunity to meet discuss the new law, but they questioned the timing. Sen. Jim Luker, D-Wynne, who sponsored the bill, said he hopes Bell and Sanders don’t revisit arguments against the law they raised during the session. “I could see this as being a positive if they want to know where we are,” Luker said. “Now if they’re coming at us from a totally negative point of view, if they are rejecting something before it’s even had the opportunity to be implemented, I think that’s rather short-sighted.”
The sentencing reforms were enacted in response to a 2010 study by the Pew Center’s Public Safety Performance project, which found that the state’s prison population has doubled in the past 20 years to more than 16,000 and that housing ever more inmates could cost the state $1.1 billion over the next decade. The reforms and new guidelines could save the state about $875 million over the next decade, the Pew study said.
Act 570 provides for lesser sentences for some nonviolent offenders and mostly drug-related crimes. The law also makes some nonviolent offenders eligible for parole earlier, with electronic monitoring as a condition of early release in some cases.
Tuesday, August 09, 2011
"Smart Reform is Possible: States Reducing Incarceration Rates and Costs"
Since President Richard Nixon first announced the "War on Drugs" 40 years ago, the United States has adopted "tough on crime" criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world. These past 40 years of criminal justice policy-making have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building. These policies have also come at a great expense to taxpayers. But budget shortfalls of historic proportions are finally prompting states across the country to realize that less punitive approaches to criminal justice not only make more fiscal sense but also better protect our communities.
This report highlights six traditionally "tough on crime" states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — that recently passed significant bipartisan reforms to reduce their prison populations and budgets. These states experienced declines in their crime rates while these new policies were in place. The report also highlights national trends in criminal justice legislation and offers a number of recommended ways that lawmakers in other states can reform their pre-trial, sentencing, parole, and probation systems. Smart Reform is Possible serves as an exciting and essential blueprint for states on the cusp of considering the reform of their corrections systems.
Wednesday, July 27, 2011
"Pa., N.J. officials question costs of tough sentencing"
The title of this post is the headline of this local article, which starts this way:
As states across the country struggle with anemic revenue, officials are taking a harder look at one subset of government that eats huge chunks of taxpayer money: prisons.
Corrections officials on both sides of the Delaware say the "get tough on crime" philosophy that has governed prison operations since the early 1980s must change. It's expensive and, in many cases, it's not working.
"The fact that our budget is $1.86 billion has a lot of people rethinking some of the assumptions we've made in the past," said John E. Wetzel, Pennsylvania's secretary of corrections. "When we over-incarcerate individuals -- and there is a portion of our population that we over-incarcerate -- we're not improving public safety. Quite the opposite."
Advocates of prison reform say Pennsylvania and New Jersey could be well-positioned for change. Both governors are Republican former prosecutors, credentials that buffer accusations that whittling down the prison population means going "soft" on crime.
And Govs. Corbett and Christie have picked corrections chiefs who support a more rehabilitative approach to corrections, a method that, studies show, can reduce recidivism.
Wetzel and New Jersey's corrections commissioner, Gary M. Lanigan, want to keep nonviolent offenders out of prison, diverting them to drug rehabilitation or other programs instead. "People are realizing that there is a huge cost to incarceration, and there's ways to do it smarter," Lanigan said. "There are people who belong in prison and there's people who are better served in the community."
Recidivism remains a problem nationwide; roughly half of those released in New Jersey and Pennsylvania return within three years.
But while New Jersey's prison population has declined 11 percent to 21,182 department inmates since its peak in 1999, Pennsylvania's population continues to increase. Since 1999, Pennsylvania's prison population has increased 41 percent, and the state now holds more than 51,000 people. In 2009, Pennsylvania incarcerated more people than any other state that year, according to the U.S. Department of Justice.
Tuesday, July 12, 2011
Another timely and terrific NASC conference in the works this summer
I am pleased to highlight the National Association of Sentencing Commissions' annual conference, which this year is being hosted by the Oregon Criminal Justice Commission and the Willamette University College of Law. This year's NASC conference is taking place in Portland, Oregon from July 31 -- August 2, 2011, and the conference is titled "Blazing a Trail to the Future." This year's agenda reveals how timely, thoughtful and forward-looking the program is for today's sentencing times, as evidence by this partial list of panel topics:
- Cost-Benefit Analysis in Criminal Justice
- Recidivism Research
- A New Look at Prosecutorial Discretion
- Examination of Mandatory Minimum Sentences
- Crime Perceptions and Media: Evidence Based Journalism?
I am very bummed that other summer commitments mean I will not be able to make it out to Oregon for this event, but I heartily recommend this conference to all serious sentencing practitioners and academics. When able to attend, I always learn more new stuff about sentencing reseaerch and also sentencing in the states from attending NASC conferences than from attending any other annual conference.
Thursday, June 30, 2011
"Sentencing-overhaul law to reduce Ohio's prison population"
The title of this post is the headline of this article in today's Columbus Dispatch. Here are the details:
The tough-on-crime cycle that began in the 1980s came full circle yesterday when Gov. John Kasich signed criminal-sentencing reform that could reduce the prison population by several thousand inmates in the next three years.
Former Attorney General Jim Petro, who was there to watch Kasich sign House Bill 86 into law, said he was relieved. "It didn't work then, and it isn't working now," Petro said of the crime crackdown that he supported as a Republican state lawmaker and enforced as attorney general from 2003 to 2007. He said the 1980s view of crime is too costly to maintain.
It is projected that the reform law will save taxpayers $46.3 million over three years, while reducing the prison population by about 7.5 percent. State prisons now hold 50,655 inmates, about 31 percent over the design capacity.
Legislative backers consistently said savings would reach $78 million, based on an estimate from a study done for the state by the Council of State Governments. But Carlo LoParo, spokesman for the Department of Rehabilitation and Correction, said the actual savings will be almost $46.3million. He said that's because not all elements proposed by the study ended up in the final version of the legislation.
The law will divert some nonviolent offenders, including drug offenders, to community programs; give inmates the chance to earn up to 8 percent credit off their sentences by completing treatment and training programs; and allow the release of inmates, with court approval, after they have served at least 80 percent of their sentences. The law also equalizes penalties for crack and powder-cocaine possession and raises the threshold for a felony theft charge to $1,000 from $500.
Kasich signed the bill in an Ohio Senate hearing room jammed with lawmakers and past and present prison officials. "I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands," Kasich said.
Ohio prisons director Gary C. Mohr called it "a day of hope." He said the law will keep nonviolent offenders out of prison where they now come into contact with -- and are negatively influenced by -- long-term offenders and violent gang members....
Other provisions of the law will require the prisons agency to issue a report justifying why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs and create an instant diversion program for shoplifters.
The bill also includes reforms related to youth offenders. "These reforms will mitigate placing kids on a conveyor belt to adult crime," said Judge Theresa Dellick of Mahoning County Juvenile Court.
June 30, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack
Thursday, May 19, 2011
In Arizona, there are "[m]ore conservatives joining push to change sentencing guidelines"
The quote in the title of this post is the headline of this effective lengthy article in from a local Arizona media outlet. Here are snippets from the reporting:
Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana. Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.
Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals. Losing contact with their families, communities and jobs contributes to this, they argue.
As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable....
The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.
Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision. “Anything that’s cheaper than what we are spending on incarcerated individuals now -- that’s just fiscal sense,” he said. “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”
Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject. “That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.
Tuesday, May 17, 2011
"Five Years for Opening a Bottle of Ketchup? Trying to Make Sense of New Jersey’s Patchwork Sentencing Guidelines"
The title of this post is the headline of this interesting new piece from The Jersey City Independent, which in turn reports on an interesting public policy report from the Drug Policy Alliance. Here is how the piece starts:
If you ever have to decide between opening a bottle of ketchup and placing it back on the supermarket shelf, or engaging in a fisticuffs with a consenting adult, go for the latter. Giving and taking punches in public might earn you a 30 day sentence, but popping that ketchup seal could cost you five years hard time. And if, by some chance of fate, you find yourself deliberating between attending a dog fight or punching someone in the eye, take a swing. The black eye will cost you 180 days in jail, but watching the dog fight could land you in prison for five years.
If the disparities between those sentences don’t seem rational, that’s because they aren’t. They are the product of decades of ad hoc legislative revision of the New Jersey criminal code that has resulted in overlapping charges, inconsistently graded offenses, and mandatory minimums whose penalties conflict with the values of New Jersey residents. Many of those irrationalities and redundancies have been compiled in “Crime and Punishment in New Jersey,” a new report published by the Drug Policy Alliance (DPA) that the group has been distributing in an attempt to create momentum for sentencing reform legislation.
In 1978, New Jersey, like the majority of states, adopted the Model Penal Code, a comprehensive code of criminal justice that was designed to incorporate most of the serious criminal activity a creative mind might engage in. In total, the version of the Model Penal Code adopted in New Jersey included 243 offenses and suboffenses, a large but not unmanageable number. But since then, Garden State legislators have added an additional 407 offenses and suboffenses. Which raises the question: Are New Jersey’s criminals so creative they have discovered 407 new ways to create mischief in 33 years, or has something gone wrong in the legislature?
According to the DPA, the fault lies with the legislature. In its study, the Alliance surveyed New Jersey residents about the seriousness of criminal offenses. They asked respondents to grade crimes by grouping them according to perceived seriousness. Respondents were also asked about what penalties should be assessed for crimes such as opening ketchup at the supermarket, watching a dog fight, or punching someone in the eye, and found that 90 percent of the time New Jersey residents believed the appropriate punishment was less severe than the criminal code currently calls for.
Often when respondents thought offenses were comparable (ketchup vs. fist fight; dog fight vs. black eye), the criminal code assigned wildly disparate penalties to them. “I think the big take-home message is really that voters’ positions on criminal sentencing are a lot more nuanced and reasonable than the general perception,” Roseanne Scotti says.
Scotti is the New Jersey state director of the DPA, and therefore most interested in the portion of the report that documents the public’s opinion of drug sentences. “I think most people have no idea you can get 10 or 20 years for a few marijuana plants in New Jersey,” she says, referencing one of the report’s findings.
Friday, May 06, 2011
Oklahoma on verge of joining states enacting significant prison and sentencing reforms
As detailed in this local article, which is headlined "Prison reform bill heads to Oklahoma governor,"in the Sooner State a "bill intended to relieve prison overcrowding and reduce the strain it places on the state budget is on the way to the governor." Here are the specifics:
The House of Representatives on Thursday approved House Bill 2131, which among other things would expand both the use of community sentencing programs and the electronic monitoring of low-risk, nonviolent inmates. It’s the first significant piece of legislation favoring alternative sentences for nonviolent offenders. Legislators over the years have passed “tough on crime” measures that have increased penalties and prison sentences, a key reason why Oklahoma’s incarceration rate routinely ranks in the top five nationally.
The state’s prison population has grown from 22,600 in 2000 to nearly 26,000, with the Corrections Department’s budget increasing from $366 million to $483 million. More than half of the state’s inmates are in prison for nonviolent offenses. The system is now at 96 percent capacity, but because of budget shortfalls, is staffed at 69 percent of authorized levels, according to the speaker’s office.
House Speaker Kris Steele, the author of the measure, said the bill is expected to save the Corrections Department at least $5 million a year. But those savings would occur over time as more nonviolent offenders are sentenced to community service or are monitored with electronic devices. Both methods are far less expensive than keeping inmates in prison.
In Oklahoma, it costs about $56 a day to incarcerate someone; by comparison, it costs about $3.50 a day to send an offender to supervised community sentencing and electronic monitoring costs about $4.75 a day, according to the speaker’s office. “We cannot afford to continue on the current path with our incarceration policies,” said Steele, R-Shawnee. “This bill shows we are serious about changing course to be smarter on crime.”
Thursday, May 05, 2011
Major Ohio sentencing and prison reforms close to becoming reality
As detailed in this local article, headlined "Sentencing overhaul would save state $78 million," Ohio is on the verge of enacting some significant criminal justice reforms. Here are the details:
House Bill 96, passed 95-2 yesterday by the Ohio House, is estimated to save the state nearly $78 million annually on prison costs, in part by diverting non-violent offenders to community programs and giving inmates credit off their sentences for participating in treatment and training.
In essence, the bill rolls back much of the "tough on crime" thinking that dominated state government for the past two decades -- resulting in a prison system with a nearly $2 billion biennial budget that is bulging with 31 percent more inmates than it was designed to hold.
Further, it provides the option of treatment instead of prison for low-level, nonviolent drug offenders, an option Ohio voters soundly rejected in a statewide ballot issue nine years ago.
The measure now heads to the Ohio Senate, where more tinkering is expected before it hits Gov. John Kasich's desk. The reforms were originally in Kasich's proposed two-year budget, but were pulled out this week to be considered as a separate measure. "These are common sense improvements that are badly needed, and I look forward to their quick passage in the Senate so I can sign them into law," Kasich said in a statement after the vote....
Rep. Loretta Heard, D-Columbus, said the bill will "slow down the revolving door in Ohio prisons." She said it will have "win-win outcomes for inmates and our communities."
On the other side of the aisle, Rep. Lynn Slaby, R-Akron, a former judge and prosecutor, said if he was "wearing my prosecutor's hat, I'd say, 'No, don't vote for it. We want to lock them all up and throw away the key. ' If I was wearing my judge's hat, I'd say, 'Don't vote for this because it takes away all my discretion, and you're trying to tell me how to do my job.'" But as a freshman legislator, Slaby said he was happy to vote for the bill "because it accomplishes so much."
Among many provisions, the bill would:
• Authorize the Ohio Department of Rehabilitation and Correction to seek court permission to release certain inmates who have served at least 85 percent of their sentences.
• Credit offenders, with certain exceptions, who complete education, drug treatment and job training programs with up to five days per month off their sentence.
• Increase to $1,000 from $500 the threshold for increased theft penalties.
• Sentence most child-support offenders to community programs, not prison.
• Equalize penalties for crack cocaine and powder cocaine possession.
Friday, April 15, 2011
Missouri prosecutors pushing to abolish state's sentencing commission and guidelines
This telling and disappointing sentencing reform storyout of Missouri provides further proof that prosecutors are generally fans of sentencing guidelines only when they serve prosecutorial interests (as they do in the federal system) and not when they serve judicial or defense interests (as they apparently do in Missouri). The story is headlined "Mo. House targets sentencing guidelines," and here are excerpts:
An obscure state agency has worked for years to devise a statistical model that helps judges decide which criminals to send to prison and which ones to place in community programs. The Missouri Sentencing Advisory Commission trumpets those criminal sentencing guidelines as a way to reserve prison space for the most violent offenders and to use community alternatives when they would best keep an offender from committing new crimes.
But prosecutors have long criticized the guidelines as cookie-cutter justice, and on Thursday, they scored a victory when the Missouri House voted to abolish the commission.
The bill's sponsor, Rep. Stanley Cox, R-Sedalia, said the agency's methodology was flawed and had the effect of promoting an agenda to reduce the prison population. "The end of this commission will, in fact, remove the inaccurate information that is communicated to our sentencing judges in the state of Missouri, whereby liberal judges are given cover to release from prison or reduce the sentence and give lighter sentences to the worst offenders, second offenders and violent offenders," Cox said.
The House passed the bill on a vote of 100-57. It now moves to the Senate, which has until May 13, the Legislature's mandatory adjournment, to decide whether to pass it.
The commission's supporters said that its guidelines weren't perfect but that they should be fixed rather than scrapped. The sentencing commission "does a lot of good and makes mistakes," said Rep. Chris Kelly, D-Columbia, chairman of the subcommittee that oversees the budget of the state's prisons. "It's bad to start throwing out tools" that can help manage the prison population, he said.
At issue is the state's development of "evidence-based" sentencing guidelines, which try to assess a criminal's risk of reoffending as an element in whether to send the person to prison. Legislators established the commission in 1993 to study sentencing practices, then amended the law in 2003 to ask the group to establish a system for sentencing recommendations.
Since 2005, judges have received reports that suggest a sentence, taking into account information such as the offender's age, work history, education and criminal history. The judges have discretion in whether to follow the guidelines or ignore them.
Missouri is among about 20 states that have such commissions. Supporters say sentencing guidelines help achieve consistency and control discrimination. Opponents say they ignore the circumstances of individual crimes and misrepresent data to arrive at "average" sentences.
The push to get rid of the commission — and the guidelines — comes from the Missouri Association of Prosecuting Attorneys. Platte County Prosecuting Attorney Eric Zahnd told a House committee that the guidelines had "no scientific foundation" and had resulted in "outrageously lenient sentencing recommendations."...
Jasper County Prosecuting Attorney Dean Dankelson branded the guidelines as unreliable, pointing to a study by Jeff Milyo, a social sciences professor at the University of Missouri. Milyo argued that the guidelines had the potential to mislead judges about the costs and benefits of alternative sentences. He said the formula ignored the cost to society when a convicted criminal on probation committed another crime.
However, other studies have credited the system with helping keep Missouri's prison population steady at about 30,500 inmates since 2005. In fact, the House's action came a day after a nonprofit group released a national study that singled out Missouri for "dramatic" progress in reducing the number of repeat offenders.
The percentage of Missouri offenders who returned to prison within two years dropped to 36.4 percent for those released in 2009, down from nearly half of those released in 2004, according to the study by the Pew Center on the States. The study gave credit to Missouri for mapping out "a meticulous plan for managing all but the most serious violators in the community" and for extensive training of probation and parole officers in how to use the new "risk assessment" tool.
"The fact is, it's being effective," said Mike Wolff, a Missouri Supreme Court judge who is also the longtime chairman of the state's sentencing commission. "The prosecutors don't like this because they have been traditionally the major if not the only source of information at sentencing time," Wolff said. "Having statistical information available doesn't particularly suit them."
Critically, as this article notes, the Missouri Sentencing Advisory Commission only produces information and advisory guidance; state sentencing judges have complete discretion to ignore the guidelines if and whenever a prosecutor can effectively argue in any individual case that a sentencing recommendation is too lenient. But rather than urge prosecutors to work harder toward achieving sentencing justice in each individual case, the Missouri Association of Prosecuting Attorneys seeks to eliminate a source of sentencing information for judges which is produced without a prosecutorial bias.
Wednesday, April 06, 2011
"Prison reform advocates press states to shift money out of corrections system"
The title of this post is the headline of this notable article from the Washington Post. Here are excerpts:
Advocates of overhauling the U.S. criminal justice system see a bright spot in the dire financial straits that states are facing: Politicians eager to trim budgets are willing to cut spending on prisons and corrections programs.
Several liberal and conservative groups have joined together to take advantage of the moment. A coalition that includes the evangelical Prison Fellowship Ministries, the NAACP, the American Conservative Union and the American Civil Liberties Union is working to push changes that they hope will lower the U.S. prison population. “We find ourselves with a new crop of allies,” said NAACP President Benjamin Jealous. “This is a place where we’ve found commonality.”
His organization is to release a report Thursday, endorsed by conservative activists Grover Norquist and Pat Nolan, calling on states to cut spending on corrections and to direct that money to education. The study, which bemoans the increasing amount of money spent on incarceration, notes that state spending on prisons has grown at six times the rate of spending on higher education in the past 20 years....
In 2005, Texas began implementing sentencing changes and poured money into drug treatment and probation programs. The overhaul slowed the state’s incarceration rate, led to a 12.8 percent drop in violent crime since 2003 and saved the estimated $2 billion that would have gone to building new prisons to house inmates, according to a 2010 state report and advocates. Lawmakers in Florida and Georgia are considering similar changes.
“Prisons are necessary but way overused,” said Nolan, vice president of Prison Fellowship Ministries. “As conservatives, we are suspicious of government and [also] suspicious of the cost of government. But we have turned sort of a blind eye on the spending on prison. It has skyrocketed without a parallel increase in public safety.”...
Jealous has also made the issue a top priority for the NAACP. His group brought together the coalition of conservatives and liberals and will begin posting billboards in major cities with slogans such as: “Welcome to America, home to 5 percent of the world’s people & 25 percent of the world’s prisoners.” He will also meet with state officials to ask for cuts to corrections spending and corresponding increases in spending to public higher education.
That could prove difficult. Even states that have begun to lower their prison populations have difficulty achieving substantial savings, said Marc Mauer, executive director of the Sentencing Project, which advocates for lower imprisonment rates. “The only way you can really reduce spending is close prisons,” Mauer said. “There’s a lot of resistance [to that] in some states.”
Scott Burns, executive director of the National District Attorneys Association, said the resistance also stems from concerns that violent criminals could released if the cuts go too deep. “It is very hard to earn your way into prison in the United States,” he said. “These aren’t people who just had a baggie of marijuana or shoplifted.”
Tuesday, April 05, 2011
Budgets and litigation have shrunk California's prison population ... but not enough
Stateline.org has this fantastic new piece on the state of California's prison system under the headlined "California shrinks its prisons, but overcrowding persists." Here are excerpts:
As the financially battered state enacts huge budget cuts, it has no choice but to downsize its sprawling correctional system, which now consumes 10 percent of the state budget and swallows more taxpayer dollars than higher education — a fact that, if public opinion surveys are accurate, Californians abhor. A single prison bed costs taxpayers $44,500 a year.
The federal courts have dialed up the pressure, putting state officials on notice that severe overcrowding — a fact of life in California prisons for years — is no longer acceptable. Two years ago, a panel of three federal judges found that overcrowding had created unconstitutionally inhumane conditions, ordering the state to reduce its inmate population by more than 40,000 — a staggering figure that eclipses the entire prisoner total of all but nine states.
Now, the U.S. Supreme Court is about to weigh in on the overcrowding problem by deciding whether to uphold, strike down or modify that order. Oral arguments in the case, Schwarzenegger v. Plata, made clear that the court’s decision could break along familiar ideological lines....
California’s prison downsizing efforts began before the Supreme Court’s involvement. In 2006, when the state's inmate population reached an all-time high of more than 172,000, then-Governor Arnold Schwarzenegger declared an overcrowding emergency, warning that inmates and guards alike faced “extreme peril.”
About 10,000 inmates were promptly shipped to private prisons in Arizona, Mississippi and Oklahoma. More recently, thousands of others had their release dates moved up as state lawmakers, usually known for enhancing criminal penalties, were forced to change course. Through an expansion of so-called “good-time credits,” they authorized many inmates to leave prison ahead of schedule while reducing parole supervision for others, hoping to reduce the number sent back for relatively minor technical violations. Today, California's in-state inmate population is down to 152,000.
Governor Jerry Brown, who took office in January, hopes to keep going. Brown wants to shift tens of thousands of low-level state inmates to county jails, even though many of those jails themselves are at capacity. If enacted, Brown's plan could reduce the state prison population by another 38,000 within four years, according to a nonpartisan legislative estimate. It also may force counties to release thousands of offenders from their jails to make room for the state transfers....
In the notoriously divided Legislature, where budget negotiations between Brown and Republicans collapsed last week, it is difficult to find consensus on any policy, let alone one as emotionally and politically charged as prisons. Not a single Republican voted for Brown’s plan to shift inmates to the counties. And with funding for the plan now uncertain, there is discussion of leaning more heavily on spending reductions to balance the budget — cuts that could speed prisoner releases and decimate what remains of inmate rehabilitation programs.
Meanwhile, fears about a spike in crime are common. Law enforcement officials warn that more releases — whether they are ordered by the Legislature or by the Supreme Court — will have predictable long-term consequences on crime, given that parolees in California are far more likely than in other states to run into trouble again. “I’m not Nostradamus, but we have a 70 percent recidivism rate. That is a fact,” says Sacramento County Sheriff Scott Jones. “If you release 40,000 inmates, 28,000 of those will reoffend.”
Saturday, April 02, 2011
"State budget crises push sentencing reforms"
The title of this post is the headline of this lengthy new AP story that provides an effective overview of how, as a result of bills for mass incarceration coming due, sentencing reforms are part of many states' efforts to deal with budget issues. Here are a few excerpts:
As costs to house state inmates have soared in recent years, many conservatives are reconsidering a tough-on-crime era that has led to stiffer sentences, overcrowded prisons and bloated corrections budgets. Ongoing budget deficits and steep drops in tax revenue in most states are forcing the issue, with law-and-order Republican governors and state legislators beginning to overhaul years of policies that were designed to lock up more criminals and put them away for longer periods of time....
Republican governors and lawmakers pushed for many of the policies that put low-level drug offenders and nonviolent felons behind bars and extended sentences for many convicted criminals. But with the GOP in control of more financially strapped state governments, a growing number of Republican elected officials favor a review of the sentencing laws that contributed to a fourfold increase in prison costs over two decades.
The total cost of incarcerating state inmates swelled from $12 billion in 1988 to more than $50 billion by 2008.... Fall election gains put Republicans in control of 25 state legislatures and 29 governor's offices, and many have pledged not to raise taxes even as they face budget shortfalls. Reforming laws to send fewer low-level offenders to state prison or reduce their sentences is a more politically palatable way to save money than cutting spending for schools or health care programs....
The proposals vary by state, but the hallmarks include ways to reduce sentences for lower-level offenders, direct some offenders to alternative sentencing programs, give judges more sentencing discretion and smooth the transition for released prisoners. In many states, the Republican measures parallel Democratic efforts that stalled long ago. The push to reform sentencing laws has forged uneasy alliances between law-and-order politicians and activists who have long argued that many laws went too far....
Backers of the state measures almost always refer to Texas, which began implementing sentencing changes six years ago. Faced with the prospect of housing 17,000 more inmates by 2012, the state poured money into drug treatment, while putting more drug abusers and petty thieves on probation. The overhaul slowed the growth of the state's incarceration rate and led to a 12.8 percent drop in the state's serious crime rate since 2003, according to a January 2010 state report. The state also saved more than $2 billion it would have spent on building new prisons to house the inmates, advocates say....
While most states are examining sentencing reforms that would target only future convicts, Oklahoma and Texas are examining changes that would release some inmates early to save money. In Oklahoma, some offenders could be eligible for electronic-monitoring. Texas, facing a $15 billion budget deficit, is considering whether to transition some elderly prisoners to nursing homes, house arrest or hospices.
Many prosecutors are skeptical of changes to criminal-sentencing guidelines, saying tough policies have led to reduced crime. Jim Reams, a prosecutor in New Hampshire's Rockingham County, said an early release program in that state has been a disaster because probation and parole officers are overwhelmed by the number of newly released prisoners flooding the system. "The budget crises are being converted into a public safety crisis," said Reams, who is president of the National District Attorneys Association. He worries that releasing more prisoners might have negative consequences.
The AP also has this companion piece headlined "Sentencing changes in some states at a glance."
Regular readers likely know of these stories and others involving state-level reform effort, and should also recognize that these latest sentencing reform discussions are largely the culmination of political, economic and social forces that have been developing for years. What makes all of this so fresh and interesting is the ways in which the political tides of 2010, with so many budget-oriented Republicans taking over state offices with budgets so tight, has sped up the processes of reform.
Some recent related posts with reports from a few states and the modern politics of reform:
- "Budget Crunch Forces A New Approach To Prisons"
- Prison practicalities in lean budget times
- Budget issues prompt big talk of big prisoner release in Alabama
- "Florida Senators Look to Texas for Prison System Cuts"
- "Gov. Beshear signs bill aimed at lowering Kentucky prison population"
- Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets
- Pennsylvania auditor urging state sentencing reform to reduce prison costs
- "Conservatives latch onto prison reform"
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- "Right on Crime: The Conservative Case for Reform" officially launches
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- Examining the politics of crime and punishment in modern gubernatorial settings
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
Thursday, March 24, 2011
New report from The Sentencing Project on "Cracked Justice"
Via e-mail I received this report on this notable new report from The Sentencing Project:
A new report from The Sentencing Project, Cracked Justice, ... addresses disparities in cocaine sentencing in 13 states and documents efforts at the federal and state level to correct these injustices. State cocaine sentencing disparities include:
• In Missouri, where a defendant convicted of selling six grams of crack cocaine faces the same prison term -- a ten-year mandatory minimum -- as someone who sells 450 grams of powder cocaine, or 75 times that amount.
• In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a ten-year mandatory minimum sentence is triggered for five grams of crack cocaine and 28 grams of powder cocaine.
• In Ohio, sentencing disparities vary across felony categories based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100 grams of crack cocaine for major drug offenses and imposes a ten-year mandatory minimum.
Former state judge laments "The Injustice of Sentencing Guidelines"
Glenna Hall, a retired superior court judge from Washington state, has this new commentary in The Atlantic headlined "The Injustice of Sentencing Guidelines." Here is a snippet:
For me, sentencing, particularly for drug crimes, was in many ways the hardest part of my work as a judge. Not because the decisions or the work were hard (though of course they were), but because, given the restrictive nature of the sentencing guidelines in Washington, I had virtually no discretion or authority to consider anything about the human being standing before me. I could consider only the nature of the crime, expressed in a number, and the number and kinds of offenses the defendant had committed, also expressed in a number. From those two quantified factors was derived a quite narrow range I was required to use in imposing a sentence. Except in a minuscule set of circumstances, I could only work within that range. The temptation not to think at all but rather to pick a number in the middle was strong.
One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me. Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office. His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit. He wept as he told of us his long addiction and his recent attempts to get clean. He couldn't go on living this way, he said. He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison. He begged me to help him get into some kind of program. He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change. By the time he finished speaking, I was the only person in the room not crying. With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence. There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.
People like this appeared before me week after week. I hated Fridays. I came home from work with the memory of what seemed to me to be injustices I had done. I considered resigning from the best job I had ever had. I didn't quit, and I rotated off the calendar that involved weekly sentencings. Later I volunteered to take on sentencing calendars that were harder to deal with but that carried penalties that seemed more rational to me than those required for drug crimes.
Eventually, Washington revised its drug sentencing laws to permit more leeway and more treatment options, but the state still has mandatory sentencing guidelines that can lead to harsh and unyielding results.