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 (4) | 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 (4) | 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