Friday, November 11, 2011

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

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

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

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

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

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

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

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

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

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

Thursday, November 10, 2011

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

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

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

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

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

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

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

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

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

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

Tuesday, November 08, 2011

"Child-Abuse Reporting Law Is Challenge to Prosecutors"

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

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

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

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

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

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

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

Wednesday, November 02, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, October 17, 2011

Taking stock of New York's historic prison population drop

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, October 16, 2011

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

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

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

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

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

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

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

Tuesday, October 04, 2011

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

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

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

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

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

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

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

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

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

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

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

Friday, September 23, 2011

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

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

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

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

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

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

Saturday, September 17, 2011

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

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

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

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

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

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

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

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

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

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

Thursday, September 15, 2011

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

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

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

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

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

Related posts:

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

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

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

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

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

Thursday, September 08, 2011

"Cost as a Sentencing Factor: A Theoretical Inquiry"

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

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

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

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

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 = 2,152
Currently in Prison and there are civil commitment issues needing addressed = 117
Currently on Work Release = 165
Currently on Parole = 1010
Total = 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 (5) | 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.

August 15, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, August 09, 2011

"Smart Reform is Possible: States Reducing Incarceration Rates and Costs"

Statesuccesses_reportpage The title of this post is the title of this new ACLU report, which is summarized via this ACLU webpage in this way:

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.

August 9, 2011 in Data on sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

July 27, 2011 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, July 12, 2011

Another timely and terrific NASC conference in the works this summer

173_home 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:

A lot more information on the 2011 conference is available on the conference website at this link (and much information about past NASC conferences is now effectively assembled here).  

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.

July 12, 2011 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 30, 2011

"Sentencing-overhaul law to reduce Ohio's prison population"

Criminal-law-art0-gfnd7k9s-10630gfx-criminal-law-tab-eps 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.

May 19, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

May 17, 2011 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

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.”

May 6, 2011 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

May 5, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

April 15, 2011 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

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.”

April 6, 2011 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, April 05, 2011

Budgets and litigation have shrunk California's prison population ... but not enough

31457_4_4_prisons_graphic_large 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.”

April 5, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

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:

April 2, 2011 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

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.

March 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

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.

March 24, 2011 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, February 24, 2011

Local DA in Georgia makes pitch against sentencing guidelines and for more judicial discretion

Everyone familiar with sentencing debates in the federal system knows the usual terms of modern debates over sentencing guidelines and judicial discretion: federal prosecutors are typically arguing for the federal guidelines to have more bite, while defense attorneys are typically saying that federal judges need to be afforded ample discretion to fit punishments to the unique facets of individual cases and offenders.  Sophisticated observers also know that it is the relatively severity of the federal guidelines that in large part account for why federal prosecutors like them and federal defense attorneys like judges to have ample discretion to sentencing outside these guidelines.

Those long accustomed to this long-standing debate over federal sentencing dynamics should find especially interesting this local opinion piece from Georgia, headlined "D.A.’s Corner: Punishment must fit the crime."  In this piece, the local district attorney for the Griffin Judicial District, Scott Ballard, makes a pitch against sentencing guidelines for Georgia. Here are excerpts:

There is a movement underway to implement sentencing guidelines in Georgia.  Federal courts have used them for years.  They work like this.  Each crime carries a sentence that is almost set in stone.  The judge has the leeway to add a few months to the required sentence.  Or, if there is reason to reduce the sentence by a few months, that can be done, too.

Proponents argue that it is fairer.  They don’t like our current arrangement which gives the judge wide latitude to sentence.  For example, burglary can carry a sentence of from 1 to 20 years.

Here’s the problem.  Each crime is different.  Each criminal is different.  If we are to be fair, judges must be allowed to fit the punishment to the crime....  Sentencing guidelines won’t allow the wiggle-room that is necessary.

Here’s another problem with sentencing guidelines.  Criminals fear the unknown. Mandatory sentences work against us.  I know from negotiating with defense attorneys that drug dealers sent by Mexican cartels have factored the federal sentences into their deal.  They know exactly what the punishment will be if they are caught. It becomes just a risk of doing business.  You should see their disappointment when they learn that our judges aren’t boxed in like federal judges are.  The life sentence they could face with us wasn’t what they bargained for.

There is another reason sentencing guidelines are a bad idea.  The risk of a significantly tougher sentence after a trial induces defendants to plead guilty to a lesser sentence of a guaranteed length.  That reduces the cost of unnecessary trials and permits us to focus our energies on the cases that really require a trial.  We avoid backlogs and enjoy the benefits that come from the swift disposition of criminal cases.

With sentencing guidelines, the incentive to plead is decreased — the sentence will be similar whether the defendant admits guilt or forces a trial.  And if he forces a trial, a lengthy appeal is certain to follow.

Experienced federal sentencing practitioners surely know that this local DA is somewhat off when boldly asserting that mandatory sentencing schemes necessarily reduce incentives to plead guilty.  Nevertheless, it seems clear that this DA is uniquely concerned that any proposed guidelines in Georgia would be set at relatively lenient levels because of the state's prison crowding and budget problems.  With that backdrop, it is understandable that this DA fears a new legal regime for the state, and it is telling that we are hearing a prosecutor extol the virtues of giving judges very broad discretion at sentencing.

February 24, 2011 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 21, 2011

"State parole system called a 'sad mess'"

The title of this post is the headline of this local article discussing Massachusetts' parole system. Here are excerpts:

Two recent instances in which men paroled from multiple life sentences went on to re-offend has one member of the Governor's Council questioning whether Massachusetts needs to scrap the entire parole system.

Mary Ellen Manning, who represents the North Shore on the board that approves judicial and Parole Board appointments, said yesterday that the current system "is a sad mess" that ought to be replaced with something similar to the federal parole system.  And sentencing ought to be done within strict guidelines, she believes....

"There's too much discretion at both the sentencing level and at the parole level," said Manning. "There's a lack of uniformity in the way people are sentenced and paroled."...

She would like to see the current sentencing and parole system replaced with one that requires defendants to serve a sentence in full, followed by a period of supervised release, such as is done in the federal court system.  That way, a convicted offender would still be under supervision for a period of time, but there would be some consistency in the way people are sentenced.

Paul Gormley, a Marblehead lawyer, adjunct professor of criminal justice at North Shore Community College and a doctoral student in law and public policy at Northeastern University, said that the system still needs a certain amount of flexibility.  For one thing, the idea that parole is possible gives some inmates a greater incentive to behave in prison, as well as to participate in whatever rehabilitation programs are available, said Gormley.

Gormley concedes that there are defendants who "can game the system," but said that hard and fast rules about sentencing take away any ability to recognize someone who has made genuine efforts to redeem himself. "We can't say what anyone's going to be like, with any certainty, in the future," said Gormley.

February 21, 2011 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 17, 2011

In Toledo to talk about Ohio sentencing policies and practices

Ohiosentencing

I am pleased and honored to be in Toledo tonight and tomorrow to participate in a terrific symposium sponsored by the University of Toledo Law Review titled "Ohio’s Sentencing Policies and Practices, Costs and Consequences." This webpage provides some backstory:

Ohio has more than 50,000 inmates confined in more than thirty penal institutions.  The average cost per inmate year is more than $25,000.  Even in robust economic times asking whether the budgetary impact is bearable would be worthwhile.  In times of economic distress and unprecedented scarcity of fiscal resources, it is imperative to ask whether Ohio’s taxpayers can continue indefinitely to bear the costs and consequences of incarceration of so many inmates — especially those who have committed non-violent offenses and are demonstrably low-risk.  The 2011 Toledo Law Review Symposium will address this and related questions, including what alternatives may exist to provide safety to Ohio’s citizens while making more resources available for other crucial public needs.

A bunch of folks have worked to put together an amazing program with all sorts of amazing speakers, and I expect to learn a lot throughout the day.  Indeed, I have already learned a lot from this terrific and timely sentencing reform resource list assembled by the Toledo folks.

Some recent and older related posts:

February 17, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (28) | TrackBack

"The State of Sentencing 2010: Developments in Policy and Practice"

The title of this post is the title of this new report from the folks at The Sentencing Project.  Here is how it begins:

Today, 7.2 million men and women are under correctional supervision. Of this total, five million are monitored in the community on probation or parole and 2.3 million are incarcerated in prisons or jails.  As a result the nation maintains the highest rate of incarceration in the world at 743 per 100,000 population.

The scale of the correctional population results from a mix of crime rates and legislative and administrative policies that vary by state.  In recent years, lawmakers have struggled to find the resources to maintain state correctional systems; 46 states are facing budget deficits in the current fiscal year, a situation that is likely to continue, according to the National Governors Association.  Many states are looking closely at ways to reduce correctional costs as they seek to address limited resources.   States like Kansas, Michigan, New Jersey, and New York have successfully reduced their prison populations in recent years in an effort to control costs and effectively manage prison capacity.  Overall, prison populations declined in 24 states during 2009, by 48,000 persons, or 0.7 percent.

During 2010, state legislatures in at least 23 states and the District of Columbia adopted 35 criminal justice policies that may contribute to reductions in the prison population and eliminate barriers to reentry while promoting effective approaches to public safety.  This report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, drug policy, the prison census count, collateral consequences, and juvenile justice.

February 17, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 09, 2011

Top judge in Missouri again talking up sentencing reforms

As detailed in this local article, headlined "Missouri's chief justice renews call for alternative sentencing programs," the head of the judiciary in the Show Me State is still looking to be shown some sentencing reforms.  Here is how the article starts:

Missouri's chief justice urged lawmakers today to find solutions to the state's prison overcrowding and to keep politics out of the selection of judges in his annual address to the Missouri Legislature. In repeating two themes from last year's similar speech, chief justice William Ray Price, Jr., said that the state continues to incarcerate too many people who instead belong in diversion programs to help them kick drug and alcohol habits.

"We continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity," Price told a joint meeting of the House and Senate. "The result is a state that is not as safe as we want it to be and a waste of tax dollars."

Price pointed to the staggering growth of Missouri's prison system to make his point. In 1982, the state had 5,953 prisoners and a budget of $55 million. In 2009, there were 30,432 prisoners and a budget of $665 million.

Price said in his speech that he, Gov. Jay Nixon, Speaker of the House Steve Tilley and Sen. Rob Mayer, the president pro tem of the Senate, have signed a letter seeking a federal grant to study alternatives to incarceration in Missouri.

Last year, Price's words spurred legislative action. Lawmakers worked hard on a plan to close one prison and divert prisoners to drug courts, though the effort ultimately failed. The Legislature did, however, add to DWI courts, in part a response to Price's speech and a Post-Dispatch series about the failure of DWI laws in the state. "This prison based strategy is not working and it is costing us an arm and a leg," Price said.

This year, though, the words seem destined to fall on deaf ears. Gov. Jay Nixon has already indicated he doesn't support an effort to close a prison. And a Senate committee studying judicial issues ignored the concept in meetings early in the session.

February 9, 2011 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 08, 2011

Two editorials urging new directions for incarceration nation

Today's New York Times and Columbus Dispatch both had editorial praising new state efforts to alter sentencing policy and prison practices.  This Times piece, headlined "Expensive Prisons," starts this way:

In the last decade, crime rates and the prison population have declined significantly in New York State.  Yet prison costs have soared.  As part of Gov. Andrew Cuomo’s search for ways to cut spending, his new budget proposes two sensible steps toward the long overdue goal of closing down unnecessary prisons.

This Dispatch piece, headlined "Smarter Justice; Lawmakers tackle reform of Ohio's costly, inefficient criminal-justice system," starts this way:

Ohio's prisons are bursting at capacity with low-level offenders, draining dollars that could be better used to provide services for law-abiding citizens, so a bipartisan reform plan introduced last Tuesday in the Senate is a welcome start.

February 8, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, January 27, 2011

Pennsylvania auditor urging state sentencing reform to reduce prison costs

A sure sign of the modern budget and sentencing times is this local story from Pennsylvania which reports on the state auditor urging criminal justice reforms.  The piece is headlined "Wagner endorses GOP bill to lessen Pennsylvania prison costs," and here are excerpts:

Calling for an end to new prison construction, Auditor General Jack Wagner today urged the Legislature to approve a Senate Republican's bill making it easier to send non-violent offenders to alternative-sentencing programs.

Wagner, a Beechview Democrat, issued a "special report" outlining the 500 percent growth in Pennsylvania's prison population from 8,243 in 1980 to 51,487 in 2010.  In 2009, Pennsylvania had the highest number of new inmates — 2,122 — of any state.

The cost per inmate nearly tripled from $11,477 in 1980 to $32,059 in 2009, Wagner said. The overall cost to taxpayers increased from $1.17 billion to $1.6 billion over the past decade, a 37 percent increase, he said.  As the state faces a $4 billion to $5 billion budget deficit, it's imperative that lawmakers consider reductions in Department of Corrections spending, which historically has been "sacrosanct," Wagner said....

The state plans to spend $862 million for four new correctional institutes and four new housing centers, and the 4,000 additional beds are expected to be filled as soon as construction is completed, Wagner said.  Wagner suggested a moratorium on new construction after these are built.

Gov. Tom Corbett, a Shaler Republican, is better equipped than any other governor over the past 30 years to address corrections issues as former state attorney general, former U.S. attorney and one-time head of the Pennsylvania Commission on Crime and Delinquency, Wagner said.

January 27, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 25, 2011

"Florida Senators Look to Texas for Prison System Cuts"

The title of this post is the headline of this interesting local article, which also carries the (somewhat amusing) sub-headline of "But money-saving programs could be too costly in tight budget year."  Here is how piece starts:

Florida legislators were treated to a tutorial Monday in criminal justice, Texas-style. Not so much the death penalty Texas-style justice, but the money-saving, cost-reducing style of the criminal justice system that conservative Texas has become known for since instituting reforms in 2007.

“Texas has a notorious reputation. It’s a tough-on-crime state,” Texas Rep. Jerry Madden, R-Plano, told a joint meeting of the Senate Criminal Justice Committee and Criminal and Civil Justice Appropriations Subcommittee.

But that tough reputation now includes drug and alcohol treatment programs, less stringent penalties for parole and probation violations, and improved mental health care. The reforms stemmed from a desire to save money by reducing the need for more prisons and the political necessity of not appearing soft on crime.

“If your choice is not to build, your choice is either to let them out or to stop them coming in. Politically, you’re not going to open the door and let them out. The only option I had at that stage was how do I slow them down,” Madden told the senators.

Florida senators are wary of losing their tough-on-crime bonafides, but also of finding money for programs that will take three or four years to see budget savings, when the Legislature is facing a $3.62 billion deficit. “We have no money, this year, it’s worse than ever. We have no money now to do preventative programs,” said Sen. Evelyn Lynn, R-Ormond Beach.

But Madden said some reforms -- like initiating progressive sanctions for technical violations of probation (like being late or missing a meeting with a probation officer), and providing incentives for probation offices to keep felons in "the system" instead of sending them back to prison for a technical violation -- can be done with little or no immediate cost.

The Florida Department of Corrections currently has a budget of $2.4 billion and a prison population of 102,000. Business groups and tax-hawk advocates were on hand to applaud the efforts of Texas and Madden. Florida TaxWatch released a study last month recommending the adoption of many of the Texas reforms, which could save the state up to $4 billion.

January 25, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 19, 2011

Indiana prosecutors oppose state sentencing reform proposals

As detailed in this local article, which is headlined "Prosecutors group assails proposal to cut prison sentences," discussion of sentencing reform to cut prison terms and associated costs has prompted the usual suspects to speak out in opposition.  Here are excerpts from this interesting article:

A group of county prosecutors has denounced a legislative proposal backed by Gov. Mitch Daniels to shorten sentences for many drug crimes. The prosecutors' position signals what could be a provocative debate in the Statehouse over whether the proposal is a responsible way to curtail prison costs or a soft-on-crime measure that might endanger the public.

The sentence reductions are part of a larger criminal justice overhaul backed by Daniels, Chief Justice Randall Shepard and two national think tanks. But one senator involved fears the debate over cutting sentences -- and the almost-certain accusations of being soft on crime -- could torpedo the entire reform package.

That debate has been quietly raging since mid-December. That's when the board of the Association of Indiana Prosecuting Attorneys voted to oppose the state Criminal Code Evaluation Commission's recommendations to shorten sentences for drug crimes such as possession and dealing of cocaine and methamphetamine.

"There are all kinds of proposals on the table that reduce and reassign sentencing levels," said the board's 2010 president, Shelby County Prosecutor Kent Apsley. "Some of them in my view are pretty extreme changes in the law and probably go too far. The question is: Where is the breaking point where you're saving money to the point that it may seriously impact public safety?"...

The prosecutors board's vote has no formal impact on the proposed legislation. Still, over the past several weeks, commission members have been trying to hash out a compromise with prosecutors. The sentence reductions are especially important because they create the savings that would pay for other reforms in the proposal....

The proposed reform package drafted by the Criminal Code Evaluation Commission would require offenders convicted of most felonies to spend the final six months to three years of their sentences outside prison in community monitoring programs...

The state also would reduce sentences for many drug crimes, downgrading possession of small amounts of cocaine or methamphetamine to a D felony from a C, and downgrading small-scale dealing of those drugs to a C felony from a B. (A D felony can result in a sentence of six months to three years, a C felony of two to eight years and a B felony of six to 20 years.)

The sentence reductions are the main sticking point for prosecutors, who are willing to accept many of the other proposed reforms, said Steve Johnson, director of the Indiana Prosecuting Attorneys Council, who served on the Criminal Code Evaluation Commission, along with the chief justice and the attorney general.... Lawmakers on the commission said conceding to prosecutors' demands could cause the whole plan to fall apart, because the proposal envisions using the money saved by reducing prison terms to strengthen community monitoring. Changes would include expanding drug abuse treatment services and concentrating more resources on monitoring higher-risk offenders.

January 19, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 20, 2010

"Think outside the prison walls"

The title of this post is the headline of this Indianapolis Star editorial endorsing proposals to restructure Indiana's sentencing system. Here are excerpts:

Gov. Mitch Daniels' endorsement of proposed corrections reforms should add needed momentum to legislative action that is long overdue.

The details will be devilish, of course, as the Indiana General Assembly sets about overhauling a penal code that's nearly four decades old.  More than 100 laws have been passed in that span that have lengthened prison sentences, and not a one that has taken the other direction. 

The result: Indiana's prison population has soared in this decade while those of neighboring states have grown only modestly.  The same is true of costs, which are projected to reach $1 billion a year by 2017.  This, in a state enduring serial revenue shortfalls....

Reduced and alternative sentencing for nonviolent offenders is the key recommendation in a detailed report from The Pew Center on the States and the Council of State Governments Justice Center....  The merits of alternatives to incarceration are manifest when it comes to reclaiming lives.  Even if that were not enough to move lawmakers from their politically comfortable get-tough posture, the monetary cost of locking up nearly 30,000 Hoosiers ought to compel them to think and act beyond the walls.

This piece from another local paper, which is headlined "Panel recommends graduated sentencing for drug, theft crimes," provides more details on the reform proposals being discussed in Indiana. It also highlights that political rhetoric might still get in the way of needed policy reforms:

Gov. Mitch Daniels said he supports sentencing changes that save money and reduce prison population growth.  But [state Rep. Linda] Lawson, deputy leader of House Democrats, said she's not sure the restructuring plan will be approved by the Republican-controlled General Assembly, even with the Republican governor's endorsement.

"I can see right now several legislators getting up on the House floor and holding direct-mail pieces and saying, 'See this right here; if you vote for this you're going to be soft on crime and they're going to do a piece of literature on you that's going to look just like this,'" Lawson said.  "It just depends on how persuasive those legislators are.

December 20, 2010 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, December 15, 2010

Indiana Governor gives blessing to state sentencing reform proposals

As detailed in this local article, which is headlined "Daniels creating plan to limit prison population," it now seems even more likely that "changes are coming to Indiana's criminal justice system." Here is why:

Gov. Mitch Daniels announced this morning that he's endorsing a plan that would control the state's increasing prison population by ensuring prisons house only the most violent offenders.

Though details won't be released until Thursday, it seems the plan will restructure sentencing guidelines for non-violent offenses and improve programming and oversight for less dangerous offenders at the county level. The changes, which are outlined in legislation that will be presented Thursday, are projected to save the state about $1 billion in prison-related expenses.

The legislation stems from a report drafted by the Pew Center on the States and Council of State Governments Justice Center. The study found that the state's prison population grew by about 41 percent from 2000 to 2008 while the crime rate decreased slightly. The increase in Indiana's prison population is much higher than neighboring states, which all recorded increases of 13 percent or less.

About 55 percent of Indiana's increase from 2005 to 2009 came from inmates who had committed non-violent property and drug crimes, according to the study. People who committed less serious offenses also served a higher percentage of their jail sentence....

Daniels said he thinks the state can combat the problem with "smarter incarceration" and "smarter punishment."

Rep. Matt Pierce, D-Bloomington, said this morning that if Indiana doesn't find a way to stop the prison population growth, the state might reach a "crisis point" where it has to release violent offenders. Pierce chairs the Criminal Code Evaluation Commission, which will review the legislation Thursday morning, and he expects his group will support the changes.

I cannot help but wonder if it is merely a coincidence that this news breaks on the same day that Right on Crime launched a new "conservative" criminal justice reform effort (as detailed here).

December 15, 2010 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

"Top prosecutors oppose sentencing 'reform' proposals"

The title of this post is the headline of this local Arizona article, which highlights the all-too-common efforts of some prosecutors (and their lobbyists) to advocate against reform efforts that would give sentencing judges great discretion.  Here are some details:

Top prosecutors from the state's two largest counties are moving to kill some sentencing "reform" proposals before they have a chance to sprout.  Kathleen Mayer, the lobbyist for Pima County Attorney Barbara LaWall, took a specific shot at a proposal by Rep. Cecil Ash, R-Mesa, to make it harder to label something a "crime spree" which requires judges to impose minimum prison terms....  Maricopa County Attorney Bill Montgomery had his own objections to that element of the plan....

Montgomery also chastised Ash, who chairs a special legislative committee reviewing sentencing laws, for proposing to give judges more leeway in sentencing those found guilty of possessing child pornography.  Right now, state law requires judges to impose consecutive prison terms for each item of pornography.  That resulted in one recent case to a man being sent to prison for 200 years -- 10 years for each of 20 items.  "Child pornography is not a victimless crime," Montgomery said.

Ash, an attorney and former public defender, said he is not making such a claim.  But he pointed out that someone who actually molests a child can get out of prison after 35 years. And murderers are eligible for probation after 25 years.  "Unless people want to say possession of child pornography is more serious, more harmful than murder, I think we need to look at our sentencing laws to make appropriate adjustments," Ash said....

The overall theme behind what Ash is proposing would give judges more discretion in sentencing.  That would reverse a trend beginning in 1978 when lawmakers voted to impose mandatory prison terms for certain crimes.  And in 1993 legislators approved a "truth in sentencing" law which says criminals must serve at least 85 percent of their term before being eligible for release.  The result, said Ash, is there are more than 40,000 people in state prisons, a figure he computed out to one out of every 170 residents. "The problem with that is that the state is paying for that," he said. "The taxpayers are paying for that."

Mayer, however, said the proposal which Ash intends to introduce when the Legislature convenes next month goes too far.  "Rep. Ash wants a lot more judicial discretion on a general basis than prosecutors are comfortable with," she said.  And Montgomery said the laws on mandatory sentencing and minimum prison terms are necessary.  "These drastic changes represent a movement away from sentencing laws that have both lowered crime rates and honored the rights of crime victims," Montgomery wrote.   "Changes such as the ones proposed in the legislation undermine public safety and could have very serious consequences for the state."  Ash, however, said other states have managed to alter their sentencing laws and also see a drop in crime.

Another target for Ash is an existing law that imposes mandatory prison terms on those who are convicted of possessing anywhere from two to four pounds of marijuana.  He said that might be appropriate for a member of a drug cartel.  But Ash said it's just as likely that the courier is just some drug user willing to do the job for a "fix," someone who a judge should be able to place on probation.

Mayer said that ignores evidence her office has that these "casual" couriers are not harmless. "The cartels are not doing our home invasions," she said. "It's our local traffickers who are engaging in smaller amounts -- just under 4 pound range -- where we're getting a lot of violence."

Mayer said there already are options for dealing with special situations like this, albeit not for the judges.  She said her office has the ability to put someone who is determined solely to be a drug user and not involved with other crimes into a diversionary program.  There, the person would get counseling and help rather than being incarcerated.

I think it is appropriate and important for prosecutors (and their lobbyists) to comment upon any proposed legislative criminal justice reforms.  But I am always irked when prosecutors work extra hard to deny judges sentencing discretion because they fear that giving judges more authority to impose a fitting sentence risks diminishing prosecutors' always greater authority to assess, structure and frame the sentencing consequences facing a defendant.

December 15, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, December 12, 2010

Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets

The Columbus Dispatch this morning has an above-the-fold, front-page article on Ohio's prison problems.  Here are lengthy excerpts from this effective article, which is headlined "Prison reform awaits Kasich; Changing overcrowded system won't be easy":

[Ohio] prison administrators have been pushing for years to stem the tide of incoming inmates to save money and reduce crowding.  Ohio prisons house 50,976 offenders (33 percent over capacity), have a staff of more than 13,300 employees and a two-year, $3.54 billion budget.

That makes prisons one of the largest single categories in the state budget, accounting for roughly 7 percent of general fund spending, and a top target for cutbacks as state officials struggle to deal with an impending $8 billion shortfall.

Gov.-elect John Kasich has made it clear that changes in prisons, including privatization and sentencing reform, will be in his sights when he takes office Jan. 10.  "Everything is on the table. Is it possible to have private companies run prisons, build prisons?  Of course it is; we're looking at it," Kasich told The Dispatch last week.  "But corrections reform is critical.  It's one of the big cost sinks that we have.  We've got some states that are releasing people because they can't control their costs. We have to think intelligently about how we're going to do this."

Kasich, who beat incumbent Democrat Gov. Ted Strickland last month, said locking up offenders who have committed "relatively minor crimes" in costly state prisons "doesn't make sense to me.  "You want to put your prisoners in an environment where the public is safe, but where it's the least costly," he said.

One of the complaints Kasich has voiced frequently since the Nov. 2 election is that Ohio locks up "check-kiters and people who don't pay child support" when they could be punished at lower cost outside prison.  However, the state prison census shows there were 51 offenders behind bars for writing bad checks and 372 for failure to pay child support. Those categories, combined, account for less than 1 percent of the total prison population.

Cutting costs sounds reasonable but isn't easy in an overcrowded system with high security needs and court-ordered mandates for medical and mental-health care of inmates.

New Department of Rehabilitation and Correction budget estimates reveal the consequences of even a 10 percent cut, including the closing of prisons and the layoff of more than 2,500 employees.  It also could mean eliminating funding for 972 halfway-house beds, 1,547 community-diversion offenders and 2,200 offenders in city and county jail programs funded by the state.

As for privatizing, the state already contracts for the operation of two private prisons: North Coast Correctional Treatment Facility, a 552-bed, minimum-security facility for alcohol and drug offenders in Grafton in Lorain County, and the Lake Erie Correctional Institution, a 1,380-bed, minimum- and medium-security prison in Conneaut in Ashtabula County.  Both are operated by Management & Training Corp. of Centerville, Utah....

State lawmakers vigorously resisted a sentencing-reform proposal that had bipartisan support from the Strickland administration and state Sen. Bill Seitz, R-Cincinnati.

Included in Strickland's proposed two-year budget in 2009 -- but stripped out by fellow Democrats -- was a proposal to reduce the prison population by more than 6,400 inmates, saving $29.1 million annually. It would have granted "earned credit" to release 2,644 prisoners, diverted 2,644 nonviolent offenders to community programs, sentenced 527 child-support violators to community sanctions and reduced re-sentences for parole violations by 591.

Seitz introduced a version of the proposal, but it also died under withering criticism from prosecutors and conservative Republican legislators.  More recently, prisons chief Ernie Moore said he wants to reduce the prison population to 48,000 by 2013.  He plans to divert more inmates to transitional control, work with judges to reduce the number of offenders returned to prison for technical violations and boost community programs for higher-risk offenders.

I am very pleased to hear my new Governor say that "everything is on the table" for dealing with these prison crowding and expense issues in Ohio.  I wonder if that really include drug offense and structured sentencing reform as well as back-end sentencing policy changes like more earned-time credit. 

Among many interesting aspects of the Ohio sentencing and corrections story is the fact that, as detailed in this recent report, prison terms have gone up since the Ohio Supreme Court responded to the Blakely SCOTUS decision by giving Ohio sentencing judges greater sentencing discretion.  Unlike in the federal system, where the guidelines tend to drive up prison terms, in Ohio structured sentencing reforms tended to keep prison sentences down.  But since that structure became just advisory in Ohio, sentence lengths have crept up.

December 12, 2010 in Blakely in the States, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (23) | TrackBack

Tuesday, November 30, 2010

"Indiana budget leaders target prison population reductions"

The title of this post is the headline of this local article from Indiana, which gets started this way:

State budget leaders appear ready to make big changes in Indiana’s criminal sentencing system to try to stymie or even reduce the growth in the prison population.

But members of the State Budget Committee said Monday the General Assembly will need more detailed data and lots of political courage to make changes that save money and better serve inmates and the public.

The data should come in December, when the Pew Center on the States and the Council of State Governments Justice Center finishes an intensive study of the state’s criminal justice system and makes recommendations for a sentencing overhaul.  The latter could be more difficult. State lawmakers have made a habit, in reacting to crimes, of passing laws that create new felonies or lengthen sentences.

“This is going to be a big issue in the 2011 session,” said Rep. Peggy Welch, D-Bloomington, a member of the State Budget Committee and the budget-writing House Ways and Means Committee. “I challenge all of us to have the courage to do what needs to be done.”

November 30, 2010 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 18, 2010

"Arizona mandatory-sentencing laws targeted"

The title of this post is the headline of this article about a debate over budget-driven sentencing reform talk among legislators in Arizona.  Here are excerpts:

A GOP lawmaker on Wednesday vowed to propose legislation next year that would give Arizona judges more discretion when sentencing criminals, but another promised to block it.

Rep. Cecil Ash, R-Mesa, who chairs a state legislative committee studying prison sentencing, said the bill would seek to loosen mandatory-sentencing laws, provide more just punishment and save Arizona money.  Mandatory-sentencing laws adopted in the 1990s in Arizona and across the nation have "tied the hands of judges" and left Arizonans paying millions of dollars to imprison non-violent criminals, he said....

Growth in the inmate population has made the state's prison system Arizona's third-largest expense behind education and health care, Ash said.  According to a Department of Corrections analysis, Arizona's prison population is roughly 10 times bigger than it was 30 years ago.

Ash said Arizona had surpassed many states' incarceration rates. "With a population of roughly 6.5 million, we have over 40,000 inmates," Ash said. "The state of Washington, with a population slightly larger than Arizona, has roughly 18,000."

Ash cited the state's budget crisis as reason for looking for ways to decrease spending in the state's corrections system. "I think we can make some improvements that ensure public safety," he said. "The purpose isn't to let people out of prison early; the purpose is to stop wasting resources."

But fellow GOP lawmaker Sen. Ron Gould, the incoming chairman of the Senate Judiciary Committee, said Tuesday that Ash's bill would "never see the light of day."  Gould heads the committee that the bill would likely be assigned to.

"Just because he's a member of my party . . . it's not getting my support," Gould said. "It's beyond a money issue.  It's a principal issue.  I think I have the support of 21 (Senate) Republicans who are not going to allow (for) letting criminals out early."

The attitudes and rhetoric used by state Senator Gould here presents the critical impediment to cost-effective sentencing reforms. I remain hopeful that tea-party types will generally not tolerate politicians placing off-limits entirely cuts in the third-biggest government expense, but this article again highlights the reality that many readily assert that fiscally conservative cuts should not be made to any big government criminal justice expenditures.

November 18, 2010 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 16, 2010

Blakely meets Crawford in interesting NC appeals court ruling

A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:

Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts.  Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury.  For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.  Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.

November 16, 2010 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Friday, November 12, 2010

Inmates having to sleep on floors in overcrowded West Virginia jails

This local article, which is headlined "Official says inmates sleeping on jail floors," spotlights the problems of jail overcrowding in West Virginia. Here are excerpts:

Officials say the issue of over-population has reached a critical point in the state's regional jails and prisons, with no clear-cut solution in sight.

Joe Thornton, Secretary of Military Affairs and Public Safety, said the issue has gotten so bad, inmates have slept on mattresses on the floors of some facilities. The Regional Jail Authority took up the problem at its quarterly meeting Wednesday at South Central Regional Jail.

One temporary solution has been the installation additional bunks at the 10 regional jails around the state.  The bunks will be mounted to the walls in the pods as per safety specifications, leaving less space for inmate and guard movement but providing additional beds, which officials hope keeps the inmates off the floors....

"We're getting to a point where we have no room at the inn," Thornton said.  "We don't have the right of refusal."  He said the problem of over-population in the regional jails stems from having too many offenders in the state's prisons.  Currently, there are about 1,600 of the Department of Corrections 6,639 inmates being held in regional jails around the state....

A commission established by Gov. Joe Manchin to study overcrowding in the state's jails and prisons released a report last July with 14 recommendations to ease the problem. Thornton said the state is working on implementing them.

Among the recommendations was accelerated parole for eligible inmates.  He said those eligible inmates would have their parole hearing 9 months before their estimated parole date rather than 12 months, meaning they would get out three months earlier.  Add to that a review of the state criminal code to review and possibly revise or repeal outdated laws....

Thornton said the idea of adding on to any prisons or jails was "not on the table" at this point because of the state of the economy, and building another prison facility or jail was all but out of the question, he said, citing a $200 million price tag.

November 12, 2010 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Wednesday, November 10, 2010

Talk in Arizona about budgets and the need for sentencing changes

This AP story, which is headlined "Lawmakers say Arizona budget woes, prison costs could provide impetus for sentencing changes," suggests that at least one set of state legislators is talking frankly about sentencing reforms to deal with budget challenges. Here are highlights:

Arizona's budget troubles could prompt lawmakers to seriously consider changing criminal sentencing laws to reduce or slow the costly growth of the state's prison population, two legislators said Tuesday.

Rep. Bill Konopnicki, R-Safford, said many of his colleagues' fear of being labeled soft on crime has kept the Legislature from taking up the issue. "We cannot afford the current policies that we have, nor is there the will in the Legislature to change it," Konopnicki said.

But he and Rep. Cecil Ash, R-Mesa, said that could change in 2011 due to steady increases in prison costs as the state is trying to close big budget shortfalls. "Between policy and budget, we are headed to a major crash," said Konopnicki, who will leave the Legislature in January. "The financial crisis is going to cause some people to take a good look at what we're doing."...

The Department of Corrections' annual appropriation for the current fiscal year is $949 million, which is 11 percent of the current $8.5 billion budget and an amount larger than the projected shortfall of up $825 million.

Ash heads a House committee studying possible sentencing changes. "We have a lot of good ideas out there," Ash said. "I sense there's a will to do things differently."

Options identified by legislative budget analysts to cope with rising prison costs include expanding the prison system, diverting some offenders to treatment programs and probation, releasing some prisoners early and returning fewer parolees to prison for violations....

Though those two lawmakers each said they perceived the budget troubles created new impetus for consideration of sentencing changes, another Republican legislator recently said the options identified by the legislative budget analysts would receive scant consideration.

November 10, 2010 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Thursday, October 28, 2010

Great new Vera Institute report on how states are trying to balance tight budget and public safety

I received via e-mail blast this afternoon this helpful heads-up about a helpful new report about state corrections practices:

A report released today by the Vera Institute of Justice’s Center on Sentencing and Corrections suggests that after decades of increases in corrections spending, states are trying something new. The Continuing Fiscal Crisis in Corrections: Setting a New Course is based on a two-part investigation that sought to gauge the current status of states’ corrections policies: Vera staff surveyed state officials about their planned corrections spending for fiscal year 2011 and reviewed states’ recent corrections-related legislative initiatives.  The results show officials planning to spend less even as they initiate changes aimed at shoring up public safety.

According to the report, two factors are driving these developments.  First, ongoing budget pressures are compelling officials to seek savings whenever safely possible.  At the same time, states are drawing on decades of research and using identified policies and practices that can be counted on to yield positive results.

The Center on Sentencing and Corrections has also created an interactive online resource highlighting data from the new report.  The page features a map and chart illustrating changes in individual states’ corrections appropriations from fiscal year 2010 to 2011, including funding sources.

Download the report.

View the interactive map and chart.

October 28, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, October 18, 2010

En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute

It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on.  Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here).  Here is how the majority opinion (per Judge Wesley) gets started:

Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10.  Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences.  Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.

In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.

In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).

A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.

Here is a key passage from the start of Judge Winter's dissent:

My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004).  Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.

We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.

October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, October 14, 2010

New York gets a permanant commission to help with sentencing "mess"

As reported in this New York Daily News article, which is headlined "Blue-ribbon panel commissioned to examine New York's sentencing laws," the Empire State has a new sentencing institution. Here are the particulars:

A blue-ribbon panel headed by a Brooklyn judge and Manhattan's top prosecutor aims to clean up New York's "confounding" sentencing laws. "The present sentencing laws are a mess," Chief Judge Jonathan Lippman told the Daily News. "They're like a hodgepodge with no rhyme or reason."

Lippman has called on a group of high-powered judges, defense lawyers and crime victims to carry out what he said will be the most far-reaching analysis of state sentences in 40 years.  Manhattan District Attorney Cyrus Vance Jr. and Brooklyn Supreme Court Justice Barry Kamins are in charge of the Permanent Sentencing Commission for New York State....

One of its missions is to find out whether sentences being meted by the state's judges serve as a useful deterrent to future crimes. "We don't know whether the offenders are prepared to live useful lives," Lippman said. "Are sentences too long or too short?"

"Four decades after most of our sentencing laws were passed, it's time for New York to focus on being smart on crime," Vance said. "This will mean longer sentences in some instances, while in others identifying appropriate cases for alternatives to incarceration," he said.

The panel also will look into whether alternative sentences can reduce the number of defendants sent off to state prisons....  Lippman said he hopes the panel will come up with a series of recommendations that can be presented to state lawmakers.

This press release reports on other members of the new commission.

October 14, 2010 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, October 11, 2010

"With more prisoners and no place to put them, Kansas faces hard choices"

The title of this post is the headline of this lengthy article from the Kansas City Star.   Here is how it starts:

A few years ago, Kansas had figured out how to control its prison population. It had solved the equation and become a national model.  No more.  Kansas is officially out of beds for male prisoners, with a population last week of 8,411 — above the system’s capacity of 8,259.

In 10 years, the state is projected to be nearly 2,000 beds short.  So Kansas corrections leaders have started talking seriously about two options: Either find millions of dollars to house more prisoners — at a time when the state is struggling to pay for schools and social services — or start letting them go.

Another option — crowding prisoners — would just lead to violence and lawsuits, prison officials say. Many states, including Mississippi, have already retreated from years of tough crime laws. Kansas experts are looking at the Mississippi solution of making nonviolent offenders eligible for parole after they have served 25 percent of their sentences.

Another possibility suggested by the Kansas Sentencing Commission is to increase “good time” credit for some inmates from 15 or 20 percent to up to 50 percent, meaning prisoners who stay out of trouble could be released after serving half of their sentences.

But early releases in either form would violate promises the state made to those who have suffered at the hands of criminals, said Wyandotte County District Attorney Jerome Gorman. “I don’t know how we can do that to the victims of the state of Kansas,” he said.  Even nonviolent inmates such as drug addicts and burglars are mostly chronic criminals who will get out and cause trouble, he said, and the state is already failing to revoke parolees who should be put back in prison. “They entrusted a job to police, prosecutors and judges and now they’re saying we don’t care about the effort,” Gorman said.

Wyandotte County District Court Judge Ernest L. Johnson, chairman of the Sentencing Commission, agreed that early releases would be a step back from the state’s sentencing grid system meant to impose consistent and true prison time. “But what do you do when there isn’t enough money? You’ve got to change something,” he said.

October 11, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Sunday, October 03, 2010

"It's time for Oregon to get smart on crime"

The title of this post is the headline on this lengthy and effective commentary authored by John Tapogna, who is president of an Oregon-based economic consulting firm and a former analyst for the U.S. Congressional Budget Office. Here are excerpts:

As the ballots hit our mailboxes this month, we'll discover a tempting offer. For $30 million a year when fully implemented, Measure 73 promises to lock up repeat sex offenders and repeat drunken drivers longer.  Two groups who don't elicit, or deserve, any sympathy.  Conventional wisdom suggests the measure will pass.  Easily.

And if it does, we will have reaffirmed our conflicting preferences for low taxes and long prison sentences.  Through voter-approved property tax limitations and kicker laws, Oregon's tax revenues as a share of the economy have declined.  And they'll remain below levels of the late 1980s despite last year's income tax hikes.  Meanwhile, we've approved mandatory minimum prison sentences for an expanding list of crimes.  Measure 73 would add a few more.

Back in the 1990s when Oregon's economy was hot, we pulled off the trick of cutting taxes while also building prisons.  But we're in different times.  As federal stimulus fades and the economy sputters, the next governor will inherit a multibillion-dollar state budget shortfall that seemingly deepens with every revenue forecast.  Successfully navigate that immediate challenge, and the rest of the decade delivers a projected 46 percent increase in elderly baby boomers who will drive up public spending on health care and pensions.  And those well-educated boomers will take their degrees into retirement and leave a less-prepared work force in their wake.

This one-two punch -- a weak economic recovery followed by a demographic tsunami -- demands that government re-engineer every service it offers. The corrections system is no exception. We spent two decades getting tough on crime. Now it's time to get smart.

In recent years, numerous states have jumped ahead of Oregon, modernized their sentencing guidelines and dialed back prison spending.  By doing so, they made space in their collapsing budgets for investments with stronger economic returns -- especially education.  So will Oregon follow the lead of these innovative states?... 

In 1989, the Legislature worked with judges, developed sentencing guidelines for convicted felons and agreed to increase corrections spending. The inmate population edged up in the early 1990s.

But the prison-building boom didn't really take off until voters approved Measure 11 in 1994.  The citizens' initiative created mandatory minimum sentences for 16 crimes and, during the subsequent decade, the inmate population doubled from 6,000 to 12,000. Today it's at 14,000 and headed to 16,000 by 2020....

Incarceration will always be a critical tool in crime prevention, but it's an expensive one. And with the average cost per inmate at $82 daily, prisons have hit the law of diminishing returns.  When voters passed Measure 11 in 1994, each $1 of prison spending yielded an average $2.78 in benefits -- prevented pain, suffering and losses associated with crime. But as we have cast prison's net wider, and caught less serious offenders in it, the benefits have declined to 91 cents for every dollar spent.

Long ago, we may have been so flush with cash that we could overlook negative returns on our public investments.  But we're not flush anymore, and we won't be anytime soon. So now's the time to ask: How do we stay tough on crime in an era of scarcity?

And the answer is: Be more like Texas.  Never accused of being softies, the 2007 Texas Legislature halted a half-billion-dollar prison construction effort and boosted investments in a cost-effective network of residential and community-based treatment and supervision programs.  Rather than grow by a projected 17,000 inmates over the next five years, Texas' prison population has started to decline.

Texas is not the lone reformer. California and Illinois have designed performance rewards for counties that keep probationers out of prison. Mississippi and Nevada rolled back sentences for nonviolent offenders who successfully complete drug treatment and vocational training programs. And Hawaii has coupled random drug tests with short jail stays to reduce parole violations and prison sentences.

Innovation is spreading and -- for the first time in 38 years -- the inmate population in America's prisons fell in 2009.  Twenty-six states registered declines.  Oregon was not among them.

But there is hope.... With a goal of getting smarter on crime, Gov. Ted Kulongoski's recently convened Reset Cabinet investigated best practices across the United States, surveyed hundreds of judges and public safety experts, and developed a list of sentencing reforms. The report's recommendations were built on a philosophy that costly prison beds should be reserved for violent offenders and those convicted of person-to-person crimes. The report also suggested that Measure 11's mandatory minimum sentences should be targeted more narrowly to crimes involving death, serious physical injury or sexual contact with the victim. Implemented competently, the Reset blueprint would save hundreds of millions of dollars over the decade with no appreciable change in crime....

We're in the middle of a long, slow march out of tough economic times, and we can't afford missteps. If we can't muster the smarts and courage to slow spending on public investments that yield negative returns, this decade's outlook for education -- and our economy -- is bleak.

October 3, 2010 in Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack