Wednesday, January 23, 2013
Talk in Vermont of requiring judges to consider directly costs of sentence
This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State. Here are highlights:
As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time. Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions. But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.
“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”
Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.
Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing. “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.
He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are. But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.
“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”
Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said. “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...
Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing. In every case, Valerio said, they have “roundly been … shot down.”
Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation. “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.
Sunday, October 28, 2012
Post-modern sentencing reforms: restricting judicial discretion to be harshThe story of "modern" sentencing reforms in the 1980s and 1990s was mostly about legislatures enacting sentencing statutes and guidelines that greatly limited judicial discretion to be lenient in response to relatively serious offenses. But, as this local story from California highlights, what I will call "post-modern" sentencing reforms now involve legislatures enacting sentencing statutes and guidelines that greatly limit judicial discretion at sentencing to be harsh in response to relatively less serious offenses. The story from California is headlined "State's prison overhaul changes sentencing structures but leaves judges with little discretion," and it starts this way:
Since the overhaul of California's state prisons in October 2011, nearly 90 people convicted of felony crimes were sent to Santa Cruz County Jail instead of prison under the new sentencing guidelines established by AB 109.
With prison realignment, state officials have carved out a number of types of felony crimes that no longer carry the option of a prison sentence. Instead, offenders convicted of these crimes serve their time locally, be it in county jails or through alternative programs such as drug treatment programs and electronic monitoring. It's also meant more people are getting placed on probation.
The new structure gives judges limited discretion when it comes to sentencing, said Judge John Salazar, presiding judge of Santa Cruz County Superior Court. When it comes to sentencing for crimes designated as jail-eligible, judges have the discretion to impose two types of sentences to County Jail. Previously, felony offenders were more likely sent to prison.
Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision. Eighty-eight people who would have been sentenced to prison before realignment now have been given County Jail sentences, said Jim Hart, the county's chief deputy of corrections.
Crimes that now carry potential jail, not prison sentences, are typically those considered "triple nons" -- nonviolent, nonserious and nonregisterable sex offenses. These include many drug offenses and property crimes. Before AB 109, these offenders would have been sent to prison.
How the actual jail portion of a sentence is served is left up to the jail staff to decide. Although judges can recommend or authorize certain types of alternative incarceration programs, Salazar said. Once a person is handed a jail sentence, it is the jail staff that determines if and whether that individual can serve it in a way other than being locked up in jail 24 hours a day.
As noted in prior posts here and here, the latest sentencing reforms in Ohio have also restricted judicial discretion to send certain offenders to prison (and, not surprisingly, it is now prosecutors rather than defense attorneys complaining about these new restrictions on judicial sentencing discretion). Similarly, a number of other states also dealing with overcrowded and costly prisons have likewise created new sentencing structures to urge or require sentencing judges to look at alternatives to prison.
This new story from California highlights one especially notable (and not always recognized) aspect of these post-modern reforms: in addition to restricting judicial discretion, these reforms have often shifted on-the-ground discretion from both judges and prosecutors now to corrections officials and thsoe who create and operate prison alternatives. Whether this kind of shift will be good for justice and public safety in the long run will be important to watch in the years and decades to come.
Friday, October 12, 2012
NPR piece spotlights Ohio success with sentencing reforms and reducing recidivismI am very pleased to see that my state is getting well-deserved national attention for its recent success with sentencing and corrections reforms. Specifically, NPR's Talk of the Nation had this lengthy segment earlier this week on Ohio's reforms under the heading "Programs Keep Inmates From Returning To Prison." Here is how the NPR site sets up the discussion:
States pay tens of thousands of dollars a year to house each inmate. Some states are rethinking the way they spend that money. In Ohio, sentencing reform, increased support for former inmates, and rehabilitation and education programs for current prisoners have helped keep prisoners from returning.
Thursday, October 11, 2012
You be the sentencing judge: what is a fitting sentence for abusive "Super Glue" mom?This AP article, headlined "Mom Who Glued Toddler's Hands Faces Sentencing," reports an on-going sentencing proceeding in Texas state court. The story prompts the challenge in the title of this post and my broader interest in readers' sentencing instincts in response to a high-profile case of child abuse:
I find this story interesting for many reasons: (1) despite modern structured sentencing reforms, here a sentencing judge still has unfettered discretion to impose a sentence anywhere from probation to life in prison; (2) though not asking for life, prosecutors' request for a 45-year prison term suggests they state think defendant should not be locked up until she is very old (and no longer able to have more kids); (3) the only man mentioned in this story is the sentencing judge (though I am inclined to assume at least one of the prosecutors is a man); (4) Texas has a procedure for jury sentencing, and it is interesting to speculate whether we think a fitting sentence would be more likely to emerge from a multi-member jury deliberating about these matters rather than from a single sentencing judge.
A mother who admitted to beating her 2-year-old daughter and gluing the child's hands faces anything from probation to a life in prison for her crimes.
Elizabeth Escalona's sentencing hearing will continue Thursday, a day after she pleaded for leniency, saying she was no longer the "monster" who committed the attack. "I will never forgive myself for what I did to my own daughter," said Elizabeth Escalona, who pleaded guilty in July to felony injury to a child.
Police say Escalona lost her temper last year with Jocelyn Cedillo over potty training problems. Escalona beat and kicked Jocelyn before sticking her hands to an apartment wall using an adhesive commonly known as Super Glue. The child was hospitalized for days.
Judge Larry Mitchell has a wide range in choosing Escalona's sentence: Anything from probation to life in prison is possible. Prosecutors are asking for a 45-year sentence.
Defense attorney Angie N'Duka asked Escalona what she thought of photos that prosecutors presented earlier this week showing her daughter's injuries. "Only a monster does that," Escalona responded. N'Duka then asked Escalona whether she thought she was a monster. "When that happened, I was," Escalona replied.
Escalona asked Mitchell for an opportunity to show she had changed, adding that she would accept any sentence as fair. "I want everybody to know I'm not a monster," Escalona said. "I love my kids." Escalona admitted to hitting and kicking her daughter but said she didn't recall why she did it.
Prosecutors have portrayed Escalona as an unfit mother with a history of violence. They have played recordings in which Escalona as a teenager threatened to kill her mother. They said she was a former gang member who started smoking marijuana at age 11.
Jocelyn suffered bleeding in her brain, a fractured rib, multiple bruises and bite marks, and was in a coma for a couple of days. Some skin had been torn off her hands, where doctors also found glue residue and white paint chips from the apartment wall, witnesses testified.
Escalona's family has acknowledged their dismay and anger following the attack, but both her mother and sister asked the judge for leniency. "I wanted an explanation," said Margaret Escalona, her sister. "I wanted to know what happened. I wanted to beat my sister up."
Ofelia Escalona, Elizabeth's mother, said her daughter hit her as a child, but she also said Elizabeth was abused growing up. Both Ofelia and Margaret Escalona argued that Elizabeth needed more help and not prison. "Her being taken away won't help any," Margaret Escalona said.
Counselor Melanie Davis testified Wednesday that she believes from the conversations she has had with Elizabeth Escalona that the mother loves her five children, one of whom was born after the attack. Davis said she has been counseling Escalona since June, nine months after her arrest.
October 11, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Wednesday, October 03, 2012
New alliance of Florida business and tax groups talking up incarceration alternativesAs reported in this local article, headlined "Smart Justice: Reducing Recidivism Reduces Taxpayer Costs" a notable group of Florida groups are coming together as "The Florida Smart Justice Alliance" to work on sentencing reform issues in the Sunshine State. Here are the details:
There are many notable aspects of the development of this new alliance in Florida, which is yet another manifestation of the ways in which new political coalitions are forming due to the huge the costs of mass incarceration in an era of tight budgets. And I cannot help but find remarkable and telling that the first person quoted in this local story is Tom Feeney, whom I assume is the same person with that name who, when serving in Congress, sponsored the so-called Feeney Amendment to the 2003 PROTECT ACT which sought to limit drastically judicial departure authority under the guidelines (way back in the pre-Booker days).
A coalition of tax watchdogs and business lobbying outfits is working toward legislation aimed at reducing criminal recidivism and thus saving taxpayer dollars.
The Florida Smart Justice Alliance, which includes Associated Industries of Florida and Florida TaxWatch, says it is seeking alternatives to incarceration that would be more effective and eventually cut some of the $2.1 billion a year price tag on the incarceration of around 100,000 inmates.
The group has already started meeting with judges, sheriffs and others in the criminal justice pipeline as it prepares for a Dec. 12-14 summit in Orlando. The goal of the summit will be to reach consensus on providing assistance in an institutional rehab program -- a program that could be offered to the state Legislature.
“Maybe in the short-run penny wise, but in the long-term it is pound foolish not to give people the treatment and rehab that is available,” AIF President Tom Feeney said Tuesday during a media conference at the Florida Press Center in Tallahassee. “One of the things I like that the Alliance is doing -- I’m not an expert in any of these matters -- is that they are studying what works and what doesn’t work in 49 other states and in fact around the free world.”
Mark Flynn, president and chief executive officer of Florida Smart Justice Association, said one proposal to establish a trio of assistance institutions across the state for nonviolent drug offenders could save Florida $20 million through reducing the cost of incarceration and the risk of those individuals returning to prison. “Our goal is to identify productive alternatives to incarceration on the front end and better transitioning efforts for those prisoners who are being released back into their communities,” Flynn said.
A big hurdle may be the governor’s office. Last April, Gov. Rick Scott vetoed a carefully crafted bill by Sen. Ellyn Bogdanoff that was intended to help people in prison deal with their drug addiction.
The bill (HB 177), backed 40-0 by the Senate and 112-4 in the House, would have offered modest reform by moving a small group of drug-addicted inmates into a treatment program once they serve half their time. They would still have been in custody but not behind bars. Scott said the effort would have broken the state law that requires a prisoner to serve 85 percent of his or her sentence.
“Justice to victims of crime is not served when a criminal is permitted to be released early from a sentence imposed by the courts,” Scott wrote in his veto message. “This bill would permit criminals to be released after serving 50 percent of their sentences, thus creating an unwarranted exception to the rule that inmates serve 85 percent of their imposed sentences.”
Sunday, September 30, 2012
Ohio reducing prison population, but judges still unhappy with sentencing reformsThis new AP article, headlined "Fewer Ohio inmates, but judges want law fixed," highlights that sentencing judges dislike limits on their discretion even when these limits require lower sentences. Here are excerpts:
A law that has helped Ohio reduce its inmate population is being criticized as too restrictive by judges seeking more leeway in sentencing.
Enacted a year ago this Sunday, the law aims to save the state millions of dollars by shrinking the number of inmates and also by reducing the number of offenders who might to return to prison as repeat offenders. One result of the change is that Ohio’s inmate population has remained under 50,000 since January, levels not seen since 2007.
Ohio is also one of several states making significant progress reducing the number of repeat offenders, according to a national report released last week. Kansas, Michigan, Mississippi, Ohio, Oregon, Texas and Vermont all saw the number of repeat offenders drop between 2005 and 2007, according to the study by Washington-based Council of State Governments’ Justice Center.
One way Ohio has lowered its inmate population over the past year is by prohibiting judges from sentencing first-time offenders to prison if the cases fall into a series of categories, such as convictions involving low-level felonies or if the crime was not a violent offense.
But judges aren’t always happy about that. In some cases, they can’t find local treatment facilities or aren’t aware of them, or they say the offender has a history of skipping out of halfway houses or similar settings. In other cases, judges make it clear they think prison is warranted, despite the law....
Thanks to the law, the number of offenders convicted of property, drug possession and drug trafficking crimes decreased from 37 percent of total admissions to 29 percent of admissions, according to prison records. In addition, the number of offenders admitted each month for failing to pay child support has dropped from 39 per month in 2011 to 31 per month from January through August, records show.
Prisons director Gary Mohr called the first-year results promising but said much remains to be done. “If I believed that we were going to stop at these numbers, I’d be pretty darn disappointed,” Mohr said in an interview last week. “This gives us a sense of hope that we can continue to get a whole lot better.”
Ohio has about 49,500 inmates in 28 prisons built to hold about 39,000 prisoners. A year ago, the state estimated the inmate population would rise to 54,000 in four years without action. The goal is to shrink Ohio’s prison population to about 47,000 inmates by 2015.
This similar local article, headlined "Sentencing reform: Fewer convicts going to prison," provides this additional evidence that folks have varied perspectives on Ohio's recent sentencing reform efforts:
With promises of big taxpayer savings and fears of more strain on local governments, state lawmakers and the governor overhauled Ohio’s sentencing laws last year. The goal was to send fewer nonviolent, low-level felons to prison, and shorten the length of time other prisoners would spend behind bars, and save tens of millions of dollars in the process.
The law took effect a year ago today. As predicted, fewer felons are going to prison and more are being put on probation, both around the state and in Stark County. What those changes mean depends on who you ask:
— “We’re pleased with the results of House Bill 86 thus far and we see those results even increasing as we move forward the next couple of fiscal years,” said Linda Janes, Ohio Department of Rehabilitation and Correction chief of staff.
— “We have not seen what I would call earth-shattering changes,” said Stark County Common Pleas Judge Lee Sinclair.
— “I think it’s awful,” said Stark County Common Pleas Judge Frank Forchione, repeating an opinion he has voiced from the bench.
Wednesday, September 19, 2012
Should sentencing juries receive a state's sentencing guidelines?The question in the title of this post is prompted by this interesting story from Virginia, which is headlined "Hampton juror asks judge to lower 128-year prison sentence." Here are excerpts which discuss jury sentencing practices in Old Dominion:
A jury in March recommended that Robert Via Jr. spend the rest of his life in prison. Their decision seemed definitive: 128 years and a day, for an armed home invasion.
But one juror is now saying that because they were forced under the law to render the sentence without guidelines, a judge should shorten the majority of Via's time behind bars. "I believe the jury may have arrived at a different set of verdicts had we more information on Virginia's sentencing requirements and processes," the juror wrote in an Aug. 12 letter to Hampton Circuit Judge Christopher Hutton.
Those concerns highlight a larger issue in the state: Jurors do not get state sentencing guidelines, and judges rarely question jurors' recommendations.
The guidelines, implemented in 1995, were an attempt to level the sentencing field when the state ended parole.... But unlike judges, jurors don't have access to the guidelines and usually sentence above them, research shows....
Virginia is one of six states that allows jurors to recommend sentences after finding someone guilty. In most states, the jury decides guilt or innocence but the sentence is determined by the judge.
In a 2004 study published in the Vanderbilt Law Review, Nancy J. King and Rosevelt L. Noble examined jury sentences in Virginia, Kentucky and Arkansas. The authors found that juror sentences in Virginia were not consistent with those given by judges. "Average sentences after jury trial were more severe than average sentences after bench trial or guilty plea, with many offenses showing significant differences," the authors write.
Jury sentences for defendants convicted of drug offenses averaged from 4.5 years to 14 years longer than sentences by judges, the study found. "In Virginia, the jury lacks both information and power, and is routinely bypassed by defendants who prefer the guideline sentences that they can obtain by exercising their state constitutional right to plead guilty," the authors wrote.
Defense attorneys often warn their clients about the stakes of taking a jury trial because of the sentence disparity. "Any time a defendant requests a trial by jury, you have to factor in the risk of a jury sentencing your client," defense attorney Tim Clancy said. "It's a huge factor in making the decision of whether to have a judge or a jury hear a client's case. It's a huge consideration."...
Criminal cases being tried by juries are rare across the state. Most cases are settled through guilty pleas or bench trials, according to the Virginia Criminal Sentencing Commission's 2011 annual report. Only 1.5 percent of criminal cases were resolved by jury trials in 2011. Eighty-nine percent of criminal cases were adjudicated by guilty pleas and 10 percent by bench trials....
When a jury decides on a sentence, it is only a recommendation to the judge. In most cases, however, judges will impose what the jury recommends. Defense attorney Ron Smith says that judges rarely go against what the jury wants in a criminal trial....
In 2011, judges modified 19 percent of jury sentences, according to the commission's report. Judges can lower a jury's recommended sentence, but not raise it. Under the law a judge must impose the minimum, but can suspend all or part of the time. They can also decide to give the defendant probation.
Monday, September 17, 2012
Jerry Sandusky's sentencing scheduled for October 9, 2012This Reuters article reports on the latest scheduling information for what seems likely to be a closely watched, but somewhat unsuspenseful, forthcoming state sentencing in Pennsylvania. here are the basics:
I will be truly shocked if Sandusky does not get a sentence that ensures he will die in prison. The only real suspense will be how the state judge in this case chooses to structure the sentence and whether, like the federal sentencing judge in the Bernie Madoff case, considers maxing out the sentence in order to try to "send a message" to both the victims and society concerning this kind of offense.
Convicted child molester Jerry Sandusky will face sentencing immediately after an October 9 hearing to determine if the former Penn State assistant football coach is a sexually violent predator, a judge said on Monday.
The hearing will be held at the Centre County Courthouse in Bellefonte, Pennsylvania, Judge John Cleland said in an order published online. A sentencing conference will be held October 8.
Sandusky, 68, was convicted in June of 45 counts of child molestation as part of a scandal that shook college football and focused national attention on child sex abuse. He faces up to 373 years in prison for sexually abusing 10 boys over a period of 15 years, including while he was the highly regarded defensive coordinator at powerhouse Pennsylvania State University.
Designating Sandusky a sexually violent predator would put him under stringent reporting requirements if he is put on probation after release from prison. The court will consider the recommendation of the state Sexual Offenders Assessment Board. Normally a determination hearing takes place the same day as sentencing, but the scale of Sandusky's case could mean sentencing would take place later.
Dan Filler, a law professor at Philadelphia's Drexel University, said Cleland had options in sentencing, but the outcome would be the same for Sandusky. Cleland could have the 45 sentences run one after the other or at the same time. He also could impose the maximum or minimum under sentencing guidelines, and take Sandusky's lack of prior convictions into consideration, Filler said.
"In the end, however, judges are very politically sensitive in cases like this. Whatever the guidelines call for, I believe the judge will impose a sentence that is functionally life without hope of parole," he wrote in an email before the hearing date was set.
Sunday, September 02, 2012
New York claims success with prison shock campsAs detailed in this AP article, New York is citing to evidence of success at reducing its offender recidivism rate through the use of shock incarceration programs. Here are the details:
As this article highlights, slowly but surely we are learning more about what kinds of correctional programs are more likely to reduce recidivism among various offender populations.
New York corrections officials say they have graduated 45,000 inmates from military-style boot camp over the past 25 years and data shows that most don't commit new crimes. Established around the country in the 1980s as an alternative to regular prison, the so-called "shock camps" got mixed reviews and several states dropped them. New York kept three camps going with a model they say is effective and cutting down the rate of repeat offenses and saving money.
Only prisoners convicted of nonviolent crimes who volunteer and sign contracts go to the camps. Many drop out or are kicked out before completing the six months of mandatory physical training, manual labor, education and drug counseling, scrutinized by drill instructors. The prize for completing the course is a shortened sentence....
Some observers say the lower recidivism is predictable because it's a self-selected and motivated group of inmates who prove capable of finishing the program. They also note that the lower recidivism, far lower in the first year, starts rising after that. "Our view is that it's somewhat mixed, but there are definitely some positive elements to it," said Jack Beck, who directs the visiting project for the Correctional Association of New York. "The regimentation is so different from what these individuals will experience on the outside, it's very hard to translate those experiences into something when they return home."
New York has 1,087 inmates at the shock camps, Moriah in the Adirondacks, Lakeview in western New York's Chautauqua County, and Monterey in the Finger Lakes region. All are minimum-security without fences and set in rural areas. Before the state shut the Summit camp southwest of Albany in 2011 to save money, there were 1,284 offenders in the shock program. The system has some 56,000 inmates in 60 correctional facilities, down from a peak 71,600 in 1999.
Revisions in drug sentencing laws and diverting more inmates to treatment programs have reduced the available pool for shock programs. Initially intended for prisoners up to age 23, they have been opened to inmates up to age 50 with less than three years left on their sentences.
Corrections spokeswoman Linda Foglia said they estimate having saved $1.34 billion because of the shortened incarceration for 45,135 shock graduates, including 3,355 females, over the past 25 years. Meanwhile, New York data show 7 percent of those who completed the program from 2007 to 2009 returned to prison within one year, compared to 19.9 percent of all inmates released from state prison. Recidivism data after three years show a 26.4 percent return rate for those who completed shock in 2007, compared with 42 percent for all releases that year....
A 2003 National Institute of Justice research review said boot camps proliferated nationally starting in the late 1980s, with 75 adult programs by 1995. Five years later, one-third had closed and there was a 30 percent population drop in remaining state programs. While "almost universally successful improving inmates' attitudes and behavior during the course of the program," the review said those changes did not translate to reduced recidivism, with limited exceptions. Boot camps that lasted longer, like New York's six months, and offered more intensive treatment and post-release supervision, did better.
September 2, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack
Friday, August 31, 2012
Drawing process lessons from high-profile sentencing after college killing in VirginiaThe high-profile homicide case emerging from the University of Virginia, in which George Huguely was convicted of second-degree murder in the beating death of his former girlfriend Yeardley Love, culminated in a Virginia state sentencing proceeding yesterday. This extended ABC News report provides considerable sentencing details:
A Virginia judge today sentenced convicted University of Virginia murderer George Huguely V to 23 years in prison for the beating death of his ex-girlfriend Yeardley Love. He will serve 23 years, plus one concurrent year for the grand larceny conviction, ruled Judge Edward Hogshire of Charlottesville Circuit Court. He also ordered three years of probation after the 23....
Huguely's attorneys told reporters outside the court that they plan on appealing both the conviction and the sentence. "Our client, Mr. Huguely, remains optimistic," the attorneys said.
In a statment, the Huguely family wrote, "Today is a sad day for our family. The past twenty-eight months have been the most difficult in our lives. We love George and will always support him." They maintained that Love's death was "an accident with a tragic outcome," and said that, "Yeardley will always be in our hearts."
Love's mother and sister, Sharon and Lexie Love, also released a statement in which they thanked prosecutor David Chapman and everyone who helped them through the past two years. "We find no joy in others' sorrow. We plan to work diligently through the One Love Foundation to try and prevent this from happening to another family," they wrote....
Huguely's attorneys asked a Virginia judge today to consider reducing the former University of Virginia athlete's sentence to 14 years in prison, from the 26 years recommended by a jury. The judge cut the recommended sentence by three years.
The prosecution and defense both called multiple witnesses to the stand for the sentencing, including former classmates, Huguely's aunt and a priest.
Rev. Joseph Scordo said he has visited Huguely in jail every Monday for a half-an-hour for the past two years. Scordo described Huguely as "spiritual" and said the two spoke freely about "faith, prayer, life, religion, family, UVA, sports." Scordo said he has never asked Huguely about the night of Love's death, but that Huguely frequently says, "I want the truth. I want the truth to come out. I have a lot of hope in Him, in God."
The prosecution's witnesses painted Huguely as a violent young man who struggled with his temper and alcohol. Huguely's former lacrosse teammate Gavin Gill told the court that he vividly remembered waking up to Huguely on top of him in bed, beating him up after he had left a party the previous night with Love.
The jury recommended 25 years in prison for the second-degree murder conviction and one year for a grand larceny conviction resulting from an allegation that Huguely stole Love's laptop computer.
Huguely's defense attorneys wrote that sentencing guidelines for convictions of second-degree murder and grand larceny "considering Mr. Huguely's negligible criminal record" recommend a sentence of 14 to 23 years. "Beyond the obviously tragic outcome, there are no facts in this case sufficiently aggravating to warrant a sentence above the low end of the guidelines or a sentence inconsistent with those imposed across the Commonwealth for like offenses," the defense wrote. Court documents filed on Wednesday by Huguely's defense team include numerous personal accounts from family and friends praising Huguely and asking for leniency
Huguely killed Love, 22, in a drunken rage in May 2010 just weeks before she was to graduate from the University of Virginia. Both Huguely and Love were star lacrosse players on the university's elite teams. Huguely faced six charges, including first-degree murder, in Love's death.
Over 10 days in court, jurors listened to testimony from nearly 60 witnesses and saw a video of Huguely's police statement, graphic photos of Love's battered body, and read text and email correspondence between the two. Though charged with first-degree murder, the judge gave jurors a menu of lesser charges they could from: second-degree murder, voluntary manslaughter and involuntary manslaughter.
Neither the prosecution nor the defense denied that Huguely was in Love's room the night of her death and was involved in an altercation with her. They differed on the severity of the encounter and whether Huguely was directly and intentionally responsible for Love's death.
Though I am not well-versed in Virginia sentencing procedures, it is my understanding that the sentencing judge here could not have increase Huguely's sentence above what was recommended by the jury, but rather only had authority to reduce the sentence. And it appears that advisory sentencing guidelines (including, I believe, an evidence-based risk assessment instrument) provided recommendations to the judge (along with arguments from the parties, of course) as to whether and how much he might reduce the sentence below the jury's recommendation.
Without making any judgments on the Huguely sentencing outcome, I have to express great respect and confidence in the Virginia state sentencing process because of all the perspectives that get brought to bear. The jurors and judge who heard all the trial evidence along with additional sentencing information both have a significant and independent role in the process, and the final sentence is informed not only by arguments from the litigants but also by advisory guidelines reflecting systemic and evidence-based judgments by the Virginia's elected officials and its expert sentencing commission. At least on paper and as a fair and transparent process, this seems like a pretty darn good sentencing decision-making system all around.
Wednesday, July 25, 2012
Massachusetts Gov asked to sign mixed sentencing reform bill
As reported in this local article, headlined "While called ‘balanced,’ sentencing bill lacks provisions sought by Gov. Patrick," the governor of Massachusetts now has on his desk a dynamic state sentencing reform bill. Here are the details:
Advocates on all sides of the crime and sentencing debate continue to speak out about the habitual offender and sentencing reform bill on Gov. Deval Patrick’s desk, urging him to sign it, veto it or send it back to the Legislature with amendments.
In a WBZ-AM radio interview Monday night, Les Gosule, an activist who has pressed for a habitual offender law for about a decade following the rape and murder of his daughter Melissa, said parties disgruntled over issues left unaddressed by the legislation can pursue those initiatives anew in the next session beginning in January. “I want the pen,” Gosule said, urging Patrick to put his signature on the bill.
Patrick has until Sunday to act on the legislation and proponents and opponents of the bill are mindful that formal legislative sessions end for the year at midnight next Tuesday. Patrick can sign the bill, veto it, or send it back with amendments. An eleventh hour amendment from Patrick would force lawmakers to either deal immediately with the amendment or risk seeing their work on the bill go for naught....
While the bill last week cleared the House 139-14 and the Senate 31-7, its supporters and opponents since then have raised concerns about it, with some arguing it lacks crime-fighting tools sought by law enforcement and others arguing that it takes discretionary power in sentencing away from judges and would lead to prison overcrowding.
Among other provisions, the bill reduces mandatory minimum sentences for non-violent drug offenders and eliminates parole eligibility for certain violent offenders upon their third conviction.
While supporters say the bill represents the “balanced” approach Patrick called for, the legislation appears to lack key policies Patrick highlighted in his State of the State speech in January, giving extra weight to the idea that the bill might be returned with amendments....
The lack of judicial discretion in the bill’s habitual offender initiative drew criticism outside the capital Tuesday. “Who has discretionary power? The prosecutor,” said Rev. George Walters-Sleyon, who was joined by other Boston clergy and Boston City Councilor Charles Yancey in front of the Shaw Memorial on Boston Common Tuesday morning. He said black people and Latinos comprise less than 17 percent of the state’s population but more than 55 percent of those serving time behind bars....
Criticism has also been levied from state prosecutors. Six of the state’s 11 district attorneys signed onto a letter Friday criticizing the bill for leaving out provisions that would strengthen gun laws, and for including “no supervision” of drug traffickers released into the community.
Sunday, June 17, 2012
Kansas prisoners still serving long terms based on now-reformed "old" sentencing laws
This interesting new article from the Wichita Eagle reports on how and why hundreds of offender sentenced before Kansas sentencing reform two decades ago are still serving prison terms that would have been much shorter under the reformed law. This piece is headlined "Hundreds of ‘old law’ Kansas inmates serving longer sentences," and it begins this way:
Rick Redford will go before the Kansas Prisoner Review Board this month after serving more than 27 years in prison. Had he been sentenced under today’s laws, he probably would have been released years ago. “Here I am doing 27 years just to see the parole board,” Redford said in a telephone interview from the Norton Correctional Facility. “Had I been convicted in 1993, I would have been out in 2005 without even seeing a parole board.”
Redford, whose most serious conviction was for aggravated kidnapping, is one of hundreds of Kansas prison inmates serving sentences for crimes committed before July 1, 1993, the day the Kansas Sentencing Guidelines took effect. Many of these “old law” inmates are serving sentences that would have been much shorter under today’s law.
“I’m on my 26th year right now,” said Sherman Wright, who figures he would have been released after 15 years had he been sentenced under the guidelines as they became law in 1993. Instead he’s serving a 69-year-to-life sentence on burglary and aggravated robbery convictions that will keep him in prison at least until 2024.
Wright’s sister, Cynthia Crawford, said her brother’s crimes were relatively minor compared with those committed by some of his fellow inmates. “He never used any kind of a weapon; he never hurt anybody,” she said. “I don’t understand how they can let him sit in there and rot like that when people keep going in for killing or raping kids and getting right back out. I know that hurts him to see people come and go, come and go, for crimes that were way past his.”
The 1992 Sentencing Guidelines Act, which was designed to eliminate racial and geographical disparities in sentencing, established a sentencing system based on the type of crime committed and the defendant’s previous criminal history. The guidelines generally called for shorter sentences for property crimes and longer ones for crimes of violence.
The Kansas Legislature decided to apply the guidelines retroactively to more than 2,000 inmates who were serving time for relatively minor offenses. But more than 4,000 inmates convicted of more serious crimes were left to serve out their original sentences. Many of those inmates had more than one conviction and were serving multiple sentences consecutively. Some who had prior convictions saw their sentences doubled or even tripled under what was known as the Habitual Criminal Act.
The sentencing guidelines law in effect created two classes of prison inmates, but the Kansas Supreme Court ruled in 1994 that it did not violate any inmate’s right to equal protection of the law, guaranteed by the 14th Amendment. Today, about 400 of those “old law” inmates remain behind bars.
Friday, June 15, 2012
"Sensible Sentences for Nonviolent Offenders"
The title of this post is the headline of this New York Times editorial. Here are excerpts:
The enormous strain prison costs put on state budgets has led some conservatives and liberals to do something sensible together. Democrats and Republicans in several states are pushing to reform criminal justice policies based on strong evidence that imprisoning nonviolent offenders for ever longer terms adds huge costs with little benefit to public safety.
Texas closed a prison last year, for the first time in its history, after reducing its prison population by steering nonviolent drug offenders to treatment and adopting other policies. South Carolina and Mississippi eased eligibility standards for parole. South Carolina, Alabama, Arkansas and other states have raised the dollar amount that triggers felony property crimes....
Offenders released in 2009 from state prisons served, on average, almost three years behind bars, nine months longer than those released in 1990. A new study by the Pew Center on the States reports that additional time in prison costs states more than $10 billion. More than half the extra cost was for nonviolent offenders.
The study also found that earlier release for nonviolent offenders would not have jeopardized public safety based on an analysis of arrest and incarceration data from Florida, Maryland and Michigan. Risk could be further reduced with better prerelease planning and strong community supervision. After decades of lengthening sentences, state leaders are realizing that it is possible to cut sentences and prison spending without harming the public.
Thursday, June 14, 2012
"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
The folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling. The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun. Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.
Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."
These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons. "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."
It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.
Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.
Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.
Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...
Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.
To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.
No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly. "We're going to be addressing this for a while," he said.
The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.
But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?
Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.
Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law. But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.
Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue. Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."
Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.
"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh. That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled. But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.
But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.
"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro. "I appreciate the compelling considerations they have to deal with. But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive." Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.
This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment.
As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime. Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy. Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.
June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack
Wednesday, May 30, 2012
NJ prosecutors now say that Ravi should have received five years in webcam spying case
The New York Times has this fascination new report on some "post-game" (but in-court) comments by various players involved in the sentencing of Dharun Ravi, the former Rutgers student convicted of multiple crimes in the high-profile New Jersey webcam spying case. The article is headlined "Judge Defends Sentence Imposed on Ex-Rutgers Student," and here are excerpts:
A judge on Wednesday offered a spirited defense of the sentence he imposed on Dharun Ravi, the former Rutgers University student convicted of using a webcam to spy on his roommate having sex with another man. Mr. Ravi was convicted in March of all 15 charges against him, and sentenced last week to 30 days in jail, 300 hours of community service, three years’ probation and $10,000 to be paid to a fund that helps victims of bias crimes....
No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”...
Prosecutors had been visibly angry when Judge Berman declared the sentence last week, and almost immediately appealed it, arguing that the convictions demanded more time behind bars. But their memo before sentencing had not indicated how much time they wanted Mr. Ravi to serve, only that they did not believe he had to serve the maximum sentence of 10 years that was attached to the most serious charges, of bias intimidation.
On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate. The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice.
Mr. Ravi appeared in court to tell the judge that he would report to begin serving his sentence Thursday. That sentence has been on hold pending the appeal from the prosecution, and one from the defense, which has argued that it was denied evidence, including a suicide note, that could have helped Mr. Ravi at his trial.
While Mr. Ravi was not charged with causing Mr. Clementi’s suicide, many defenders argued that he was essentially — and unfairly — convicted of it. Judge Berman received more than 100 letters and e-mails before sentencing, most of them arguing against a harsh punishment for Mr. Ravi. On Wednesday, he said that his in-box continued to fill up with complaints about the sentence he imposed.
He defended the sentence as the product of great consideration. “It was anything but spontaneous,” he said. Judge Berman noted that the punishment was harsher in some ways than what was recommended in a report by the corrections official who did the presentencing interview with Mr. Ravi. That report recommended against any incarceration or fine. It also recommended more extensive community service, and that Mr. Ravi tour schools to discuss his experience, and bias crimes.
But the judge, who last week lambasted Mr. Ravi for not once apologizing for what he had done, said he would not be an “appropriate” spokesman against bias, given that he had barely acknowledged any wrongdoing. Mr. Ravi, 20, issued a statement late Tuesday to offer his first clear apology for his crimes, saying, “I accept responsibility for and regret my thoughtless, insensitive, immature, stupid and childish choices.”
While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing. Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.
In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend. Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.
Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said. But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.” That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.
In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail....
Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.” He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy. “I also know his age,” Judge Berman added, calling it a mitigating factor. “I believe justice compels me to deviate from the guidelines,” he said. However, Judge Berman also said, “I admit that people can disagree with me.”
Recent related posts on Ravi case:
- "Ravi found guilty on 24 of 35 charges in webcam case"
- "Ravi media tour carries risks at sentencing, experts say"
- Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
- New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes
- Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?
- Dharun Ravi sentenced to only 30 days in jail in NJ webcam case
May 30, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack
Saturday, May 26, 2012
Effective op-ed on "Plantations, Prisons and Profits" in Louisiana
The title of this post is drawn from the headline of this new op-ed in the New York Times by Charles Blow, which gives justified praise to the recent local newspaper series about Louisiana's criminal justice system (which I have spotlighted in prior posts here and here). Here are excerpts:
“Louisiana is the world’s prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s.”
That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.
The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.... [S]ome facts from the series:
One in 86 Louisiana adults is in the prison system, which is nearly double the national average.
More than 50 percent of Louisiana’s inmates are in local prisons, which is more than any other state. The next highest state is Kentucky at 33 percent. The national average is 5 percent.
Louisiana leads the nation in the percentage of its prisoners serving life without parole.
Louisiana spends less on local inmates than any other state.
Nearly two-thirds of Louisiana’s prisoners are nonviolent offenders. The national average is less than half.
In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did. It also was a chance to employ local people, especially failed farmers forced into bankruptcy court by a severe drop in the crop prices.
But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full. That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.
It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country. Writing bad checks in Louisiana can earn you up to 10 years in prison. In California, by comparison, jail time would be no more than a year.
There is another problem with this unsavory system: prisoners who wind up in these local for-profit jails, where many of the inmates are short-timers, get fewer rehabilitative services than those in state institutions, where many of the prisoners are lifers. That is because the per-diem per prisoner in local prisons is half that of state prisons. In short, the system is completely backward....
Louisiana is the starkest, most glaring example of how our prison policies have failed. It showcases how private prisons do not serve the public interest and how the mass incarceration as a form of job creation is an abomination of justice and civility and creates a long-term crisis by trying to create a short-term solution. As the paper put it: “A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.”
Related recent posts:
- Profiling the top lock-up state in the top incarceration nation
- Continued great reporting on the toughest state in incarceration nation
Monday, May 21, 2012
Dharun Ravi sentenced to only 30 days in jail in NJ webcam case
As reported in this ABC News piece, "former Rutgers student Dharun Ravi was sentenced to 30 days in jail by a New Jersey judge today for spying on his roommate's gay tryst." Here are more about the basics:
"I do not believe he hated Tyler Clementi," Judge Glenn Berman told the court. "He had no reason to, but I do believe he acted out of colossal insensitivity."... "I heard this jury say, 'guilty' 288 times--24 questions, 12 jurors. That's the multiplication," Berman said. "I haven't heard you apologize once."
The prosecution, which sought a significant prison term, indicated it will appeal the judge's sentence.
Before the judge's sentencing, Ravi's mother delivered an emotional plea for leniency during which she and her son both broke into tears. At the end of her plea, Ravi's mother threw herself on her son, sobbing and hugging him.
In March, Ravi was found guilty of a bias crime for using a webcam to spy on his gay roommate Tyler Clementi. The family of Tyler Clementi, the Rutgers freshman who committed suicide after his roommate broadcast a gay sexual tryst, bitterly asked the judge today to sentence Ravi to prison time.
Clementi's father, Joseph Clementi, told the judge, "One of Tyler's last actions was to check Ravi's Twitter page" and noted that his son checked his roommate's Twitter page 37 times before leaving the Rutgers campus and driving to the George Washington Bridge where he jumped to his death....
Ravi was convicted of invasion of privacy, bias intimidation, witness tampering and hindering arrest, stemming from his role in activating the webcam to peek at Clementi's date with a man in the dorm room on Sept. 19, 2010.
I think this sentence is a bit light, all things considered, but the many direct and indirect consequences of the prosecution and convictions that Ravi has endured and will continue to face (including potential deportation) arguably is greater punishment than any jail term. These varied criminal justice consequences ought also help in some small way deter others from similar acts of "colossal insensitivity," though nobody should really expect this case (or any punishment for Ravi) to really impact the tendency of young people to be insensitive sometimes.
I have no idea if NJ state prosecutors have much chance of getting a longer sentence through an appeal; perhaps some local NJ lawyers might report if they do. Especially in these lean budget times, I do not quite see why an appeal here would be a wise use of limited resources unless prosecutors can identify some legal error in the sentencing process for Ravi.
Sunday, May 20, 2012
Extreme sentence in warning shot case drawing more criticisms of mandatory minimums
I am pleased to see that the extreme mandatory minimum sentence given to Marissa Alexander in Florida is continuing to generate controversy and criticism in the MSM. This AP article, headlined "Critics hit mandatory-minimum law after woman gets 20 years in prison for firing warning shot," highlights some of the buzz:
Marissa Alexander had never been arrested before she fired a bullet at a wall one day in 2010 to scare off her husband when she felt he was threatening her. Nobody got hurt, but this month a northeast Florida judge was bound by state law to sentence her to 20 years in prison.... Because she fired a gun while committing a felony, Florida’s mandatory-minimum gun law dictated the 20-year sentence.
Her case in Jacksonville has drawn a fresh round of criticism aimed at mandatory-minimum sentencing laws. The local NAACP chapter and the district’s African-American congresswoman say blacks more often are incarcerated for long periods because of overzealous prosecutors and judges bound by the wrong-headed statute. Alexander is black.
It also has added fuel to the controversy over Florida’s “stand your ground” law, which the judge would not allow Alexander to invoke. State Attorney Angela Corey, who also is overseeing the prosecution of shooter George Zimmerman in the Trayvon Martin case, stands by the handling of Alexander’s case. Corey says she believes Alexander aimed the gun at the man and his two sons, and the bullet she fired could have ricocheted and hit any of them.
At the May 11 sentencing, Alexander’s relatives begged Circuit Judge James Daniel for leniency but he said the decision was “out of my hands.” “The Legislature has not given me the discretion to do what the family and many others have asked me to do,” he said.
The state’s “10-20-life” law was implemented in 1999 and credited with helping to lower the violent crime rate. Anyone who shows a gun in the commission of certain felonies gets an automatic 10 years in prison. Fire the gun, and it’s an automatic 20 years. Shoot and wound someone, and it’s 25 years to life.
Critics say Alexander’s case underscores the unfair sentences that can result when laws strip judges of discretion. About two-thirds of the states have mandatory-minimum sentencing laws, mostly for drug crimes, according to a website for the Families Against Mandatory Minimums advocacy group. “We’re not saying she’s not guilty of a crime, we’re not saying that she doesn’t deserve some sort of sanction by the court,” said Greg Newburn, Florida director for the group. Rather, he said, the judge should have the authority to decide an appropriate sanction after hearing all the unique circumstances of the case....
Victor Crist was a Republican state legislator who crafted the “10-20-life” bill enacted in 1999 in Gov. Jeb Bush’s first term. He said Alexander’s sentence — if she truly did fire a warning shot and wasn’t trying to kill her husband — is not what lawmakers wanted. “We were trying to get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime,” said Crist, who served in the state House and Senate for 18 years before being elected Hillsborough County commissioner....
“The irony of the 10-20-life law is the people who actually think they’re innocent of the crime, they roll the dice and take their chances, and they get the really harsh prison sentences,” Newburn said. “Whereas the people who think they are actually guilty of the crime take the plea deal and get out (of prison) well before. So it certainly isn’t working the way it is intended.”...
Newburn says Alexander’s case is not an isolated incident, and that people ensnared by mandatory-minimum laws cross racial barriers. In central Florida, a white man named Orville Lee Wollard is nearly two years into a 20-year sentence for firing his gun inside his house to scare his daughter’s boyfriend. Prosecutors contended that Wollard was shooting at the young man and missed.
He rejected a plea deal that offered probation but no prison time. Like Alexander, he took his chances at trial and was convicted of aggravated assault with a firearm. Circuit Judge Donald Jacobsen said he was “duty bound” by the 10-20-life law to impose the harsh sentence. “I would say that, if it wasn’t for the minimum mandatory aspect of this, I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of this event,” Jacobsen said.
Recent related posts:
- Very different case provides a very different (sentencing) perspective on Florida gun laws
- Another obvious mandatory sentencing injustice in Florida "warning shot" case
May 20, 2012 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (9) | TrackBack
Wednesday, May 16, 2012
Continued great reporting on the toughest state in incarceration nation
As noted in this post from this past weekend, the New Orleans Times-Picayune is published a huge eight-part series on the severity of punishment and prison overcrowding in the Bayou state. This series is titled "Louisiana Incarceration: How We Built the World's Prison Capital," and every piece in the series merits a full read. Today's installment is headlined "Prison sentence reform efforts face tough opposition in the Legislature," and here are a few excerpts from the outset:
Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, '80s and '90s bloated the state's inmate counts.
If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time -- by far the nation's highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.
"The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives," said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.
This lengthy piece goes on to detail how challenging it can be to forge a needed political consensus for any ameliorative sentencing reforms.
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 (33) | TrackBack