Thursday, November 10, 2011
Effective new report on effective state-level sentencing and corrections reforms
Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms." This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:
States continue to struggle during what is the most difficult fiscal environment since the Great Depression. Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less. Full economic recovery may not happen until the end of the decade. With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.
Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections. They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes. Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.
Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:
- South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism;
- Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
- Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.
The challenge to states is to make cuts in corrections spending while maintaining public safety. Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not. Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent. Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.
States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:
- Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
- Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
- Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
- Support mandatory supervision and treatment in the community; and
- Use real-time data and information for decision-making.
Tuesday, November 08, 2011
"Child-Abuse Reporting Law Is Challenge to Prosecutors"
The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program. Here are excerpts:
Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.
Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus. Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse. The two men have also been accused of lying to a grand jury about what they knew of the allegations. They have denied the charges. Mr. Sandusky has denied any wrongdoing.
It is unclear if the officials were obligated to report the allegations in the first place, legal experts said. Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....
Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail. Under sentencing guidelines, they would likely face one to 12 months.... The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine. Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.
"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.
Wednesday, November 02, 2011
State mandatory minimum requires Oregon faith-healing parents to serve long term for manslaughter
Though I am still working my way through the important new US Sentencing Commission report on mandatory minimum sentences, this local article from Oregon is a reminder that many states have notable mandatory minimum sentencing rules that apply in many notable settings. Here are the details of this sad, yet interesting, state mandatory minimum sentencing tale:
A Clackamas County judge stunned a courtroom packed with supporters of Dale and Shannon Hickman Monday when he sentenced the couple, members of an Oregon City faith-healing church, to prison for six years and three months.
The Hickmans received the mandatory minimum prison term under Measure 11 sentencing guidelines, even though defense attorneys argued that their clients qualified for little or no prison time. Once released, they will be on post-prison supervision for three years.
"This is a sentence you have justly earned," said Presiding Judge Robert D. Herndon. He called incarceration "a modest penalty for causing the death of a vulnerable person. ... This was so preventable."
After Herndon left the courtroom, about 100 church members remained, sullen and many sobbing, as deputies handcuffed the Hickmans and led them away.
The Hickmans were convicted of second-degree manslaughter in September for failing to seek medical care for their son David, who was born two months prematurely and lived less than nine hours. An autopsy found he had staph pneumonia and underdeveloped lungs. Pediatric experts testified that the baby almost certainly would have survived if he had been taken to a hospital. The Hickmans sought no medical intervention even as the baby turned gray and struggled to breathe.
Under Oregon law in effect when the baby died in 2009, defense attorneys maintained that the Hickmans were eligible for a lesser sentence available to those who rely on spiritual treatment. The Legislature eliminated the exemption this year -- motivated by the long history of child deaths among the Followers – and the Hickmans will be the last Oregonians to attempt to benefit from the old law. Under the law in effect at the time of the crime, Herndon needed "substantial and compelling reasons" to depart from the sentencing guidelines, and he did not see any.
Had the Hickmans conceded at trial that David was sick -- but not gravely ill -- and that they relied on faith-healing rituals to cure him, they might have fared differently at sentencing. But instead of invoking a religious defense, the Hickmans said they saw no reason to call 9-1-1 or seek medical assistance because there was nothing wrong with their son, even as he grew weaker and died. "As the evidence unfolded and the witnesses testified, it became evident to me and certainly to the jury that this death just simply did not need to occur," said Herndon, noting that the jury reached a unanimous verdict in a "stunningly" short time.
Defense attorneys Mark Cogan and John Neidig urged Herndon to give the couple probation, assuring Herndon that the parents would take their children to the doctor and get training to help them determine when a child needs a doctor's care.
Shannon Hickman tearfully appealed for Herndon to not separate her from her two children, a 7-year-old daughter and an infant son. Dale Hickman, emotional but composed, asked the judge to "find in your heart mercy for my wife and above all else, our children."...
Prosecutor Mike Regan said the sentence sends a message to the church. The Followers are not fundamentally different from a black-robed pagan group that sacrifices a sick child in the dead of night, Regan told the court. In the Followers, "we have a religious group sacrificing children's lives, year after year, decade after decade," he said. "We have to do something."
Monday, October 17, 2011
Taking stock of New York's historic prison population drop
This lengthy AP article discusses the what and the how of New York's remarkable reduction in its state prison population in recent years. Here are highlights:
Nearly 40 years after tough new drug laws led to an explosion in prison rolls, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.
The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 17,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs. Overall, the prison population declined 22 percent.
Hispanics and blacks are still vastly overrepresented in prisons but incarceration experts said the overall figures were impressive. "The drop itself is really quite extraordinary," said Michael Jacobson, director of the Manhattan-based Vera Institute of Justice, a nonprofit center for justice policy research....
Nationally, New York charted the biggest drop in its prison rolls from 2000 to 2010, a decade when 37 state prison systems had double-digit population hikes. Ironically, it was the state's 1973 drug laws, championed by then-Gov. Nelson A. Rockefeller, that helped kick off a massive national prison buildup — and the highest incarceration rate in the industrialized world.
Now — with state prison spending at $3.7 billion in fiscal 2010, or $55,000 per inmate — New York may be leading the way back. Nearly 7,700 fewer blacks are incarcerated in state prison in 2011 compared with 2000, the Journal study found. In addition, 35 percent fewer female inmates serve time — and 77 percent fewer women serve drug sentences as their top crime. Inmates were also older — by three years on average, according to the analysis, which used databases of the inmate population on one day each in February 2000 and March 2011.
The trend is an outgrowth, experts said, of factors including the diversion of more drug offenders to treatment, changes in drug laws and lower crime rates — especially in New York City, which currently ranks among the safest big cities in America. There, aggressive "stop-and-frisk," zero-tolerance and computer-driven anti-crime programs have been employed, some say, with remarkable results....
The decline in drug-convicted inmates means more of the type of inmate for which penitentiaries were constructed: violent offenders. Today, the No. 1 top crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000. In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced. That's now down to about 3,000.
"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner. "Was prison the best alternative for drug abusers? Clearly it was not."...
Before adoption of its drug laws in 1973, New York had built just 18 prisons in 140 years. Driven by mandatory drug sentences and other tough-on-crime statutes, the state opened 52 prisons from 1973 to 2000, raising the population from 13,400 to a historic peak, on Dec. 12, 1999, of 71,538 inmates. It was 55,599 last week....
Janet DiFiore, a former judge and current Westchester County district attorney ... ties the prison downturn both to drug law reforms — in 2004, 2005 and 2009 — and a recognition in law enforcement that alternatives like drug treatment were needed. Almost 200 drug courts have been opened statewide, most since 2000, that divert many otherwise prison-bound offenders to treatment.
The downsizing doesn't impress some reform advocates, who still see the system as hugely bloated, especially with blacks and Hispanics, now 77 percent of inmates and down from 84 percent in 2000. "The disparities have diminished somewhat and that's good news, but that does not put us as a state in a place that we can be proud of," said Donna Lieberman, executive director of the New York Civil Liberties Union, which has opposed city frisking policies as invasive and discriminatory. "We were starting at a pretty horrific place from which to decline."...
What's clear is that the downturn is continuing — equal to one or two large prisons in each of the last three years. And it may accelerate with most experts agreeing that the latest drug law reforms have yet to fully kick in. In 2009, amendments to the Drug Law Reform Act gave judges far broader discretion to divert offenders to drug treatment or sentence them to lesser, non-mandatory, terms. In 2004 and 2005, the act reduced the harshest sentences — 15 years to life for selling as little as two ounces of cocaine or possessing four ounces — but those reforms only marginally reduced the population, experts said.
The reforms are an outgrowth of something much larger than a drug-war backlash, according to close prison observers, among these ballooning prison budgets, the economic downturn and a realization that punishment isn't always the answer. "Prosecutors were recognizing that our job was not just about handcuffs and prison," said DiFiore. "It was a mindset change."
"In a time of economic recession it causes a rethinking," said Alan Rosenthal, director of justice strategies for the Center for Community Alternatives, a Manhattan-based sentencing reform group. "We had a shift from tough on crime to smart on crime," an acknowledgement, he added, that high prison rolls did not equate with lower crime.
Rates of major crime in New York state have dropped 63 percent since 1990 — a consistent decline even as the prison population rose an average 4 percent a year in the 1990s and declined an average 2 percent a year in the 2000s.
This important article not only highlights the links between the drug war and large prison populations, but also documents that state decisions to fight the drug war using smarter (and less costly) alternatives to imprisonment can facilitate a dramatic reductions in prison populations without obvious adverse public safety consequences.
I find it especially notable that New York managed to reduce is prison population over 20% during the same period in which California was fighting in court over court orders to fix its overcrowded prisons. I genuinely believe if the folks in California had embraced the creation of a sentencing commission that could have studied and implemented effective changes taking place in other states, the Plata litigation would have played out much differently and the massive prisoner release order that worries so many would never have come to pass.
October 17, 2011 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, October 16, 2011
Penn Law Review presents “Sentencing Law: Rhetoric & Reality”
I have the great honor of having been invited to participate in this great sentencing conference taking place later this month at the University of Pennsylvania Law School. And I now have the great pleasure of providing a bit of promotion for this event by reprinting this e-mail text from the Articles Editor of the University of Pennsylvania Law Review
The University of Pennsylvania Law Review is hosting its 2011 symposium, “Sentencing Law: Rhetoric & Reality” at the Law School on October 28 and 29. The event will cover the current dynamic issues of this area of law with distinguished judges, legislators, scholars, practitioners, and nonprofit leaders.
The featured panel co-sponsored by the National Association of Criminal Defense Lawyers (NACDL) and Right on Crime will include Congressman Bobby Scott, former DEA Administrator Asa Hutchinson, the fourth director of the FBI William S. Sessions, and Pennsylvania State Senator Stewart Greenleaf, all of whom are in a position to effect real change.
The Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, who as a district court judge presided over the guilty plea and sentencing of Bernie Madoff, will serve as our featured lunch speaker. The New York Times called the sentence he imposed–150 years imprisonment -- “the most stunning and widely discussed sentencing in the history of American white-collar crime.”
For more information about the schedule, speaker biographies, and registration, please visit http://www.pennumbra.com/symposia. Registration fees for the event are: $75 for professionals in private practice; $35 for government and nonprofit employees, and non-University of Pennsylvania academics; $10 for non-University of Pennsylvania students; and free for University of Pennsylvania faculty and students. Symposium attendees may receive up to 12 hours of Continuing Legal Education credit at $10 a credit.
Tuesday, October 04, 2011
Examining California's new prison placement law (and its possible impact on the King of Pop's doc)
I have not been closely following the on-going trial of Conrad Murray, the doctor charged with being criminally responsible for causing Michael Jackson's premature demise. I am intrigued and pleased to discover, however, that this new AP story finds a way to link that trial and Murray's potential sentencing to the new laws in California enacted in part to help the state comply with the Plata SCOTUS ruling concerning the state's overcrowded prisons. Here is how the lengthy new AP piece starts:
Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.
Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent. Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church. Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.
"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law [available at this link]. A list of 500 criminal code sections to be covered by the law was compiled by the California District Attorneys Association and posted late last month to its website [at this link]. In response to a request by the AP, the state attorney general's office confirmed the association's review was accurate but said defendants with a previous felony conviction or those charged with enhancements would still be sent to state prison.
Among those who could be affected by the new law if convicted is Dr. Conrad Murray, who is on trial for involuntary manslaughter in the death of Michael Jackson. Legal experts said he would serve his maximum four-year sentence in a Los Angeles County jail instead of state prison.
The length of sentences won't necessarily change, but the realignment law does offer significant differences for inmates. Parole will disappear for offenders who serve their terms in county jails, including Murray, if he is convicted. Offenders who serve their full sentences behind bars will not be supervised once they are released. Parole officers will not be tracking their movements or making sure they comply with conditions such as substance abuse treatment.
Judges also have the discretion to impose "hybrid" or "split sentences" in which offenders serve part of their sentence in county jail and the rest on what is being called "mandatory supervision," overseen by probation officers.
Offenders convicted of more significant crimes still are likely to get lengthier sentences, even if they are served in jail instead of prison, said Scott Thorpe, chief executive officer of the state district attorneys association. But sentencing more serious offenders to jail rather than state prison will likely force counties that already have crowded jails to release less serious offenders who are serving time for crimes such as auto theft, burglary, grand theft, forgery, counterfeiting and drug crimes.
Los Angeles County District Attorney Steve Cooley is among those complaining that counties will be forced to release lower-level offenders by the thousands before they have served their full terms.
Friday, September 23, 2011
Notable state fraud ruling affirming 54-year sentence for white-collar offender
A helpful reader alerted me to an interesting opinion from the Indiana Court of Appeals in Reeves v. Indiana, No. 77A01-1012-CR-646 (Ind. Ct. App. Sep. 19, 2011) (available here), which rejects a state white-collar defendant's various complaints about his convictions and his sentence of 54 years of imprisonment for running what turned into a kind of faith-based Ponzi scheme. This discussion of the sentencing issues provide background on the nature of the crime and why the long punishment was upheld in Reeves:
Although Reeves's crimes were property crimes, they were not ordinary property crimes, resulting in staggering losses to thousands of victims: $13,149,000 lost by 2904 victims, at least some of whom had their retirement savings wiped out. Among the victims was Steven Duncan, who lost $600,000, money that was intended to fund his retirement. Duncan testified that the loss ruined his marriage and his life and that his current blindness might have been avoided had he been able to afford medical insurance. Reverend Roger Wright, who had invested his entire retirement savings in Alanar, lost it all, a total of $179,152. Rev. Wright, like many ministers, had not paid into the Social Security system and so was completely dependent on his retirement income, which is now gone. Indeed, a large percentage of Reeves's victims were elderly, a group he targeted.
Moreover, the trial court found, and the record indicates, that Reeves exploited the religion and faith of his victims. After the terms of a bond issue were finalized, Alanar would organize a “kickoff” night at the church in order to start selling bonds. Alanar's sales presentations at the kickoffs included reminding potential bondholders of their “Christian responsibility” to support the church by buying bonds.... Many of Reeves's victims trusted him because they believed him to be a Christian and considered the fact that they were investing with a Christian company when deciding whether to invest. In light of the very large number of victims, the vast amount of their losses, and the elements of cynical exploitation to Reeves's scheme, we consider his crimes to be very egregious.
While Reeves's lack of a prior criminal history and expressions of remorse do him some credit, it certainly should be noted that evidence presented at trial does not. Reeves testified that he felt there was nothing wrong with what he was doing at Alanar. Two Alanar employees, however, testified that they faced retribution when they began to understand the true workings of Alanar.... Reeves's reckless disregard for bondholders' money was also expressed by his decision to purchase Porsche Boxsters for his three sons as a bonus. While there are some redeeming aspects of Reeves's character, the very egregious nature of his crimes and the negative aspects of his character fully justify his enhanced and consecutive sentences. Reeves has failed to establish that his fifty-four-year aggregate sentence in inappropriate.
Saturday, September 17, 2011
"Fort Worth man gets life sentence in shoplifting case that ended in death"
The presidential candidacy of Texas Governor Rick Perry has brought extra attention to his state's record with capital punishment. But this local Texas article reporting on the imposition of a life(!) sentence on a Walmart shoplifter has me hoping the media might find some time to ask Governor Perry some questions about some other aspects of Texas justice. (Hat tip: Scott Henson from Grits for Breakfast.)
The title of this post comes from the the headline this Fort Worth Star-Telegram article, and here are the remarkable offense and sentencing details:
A 38-year-old man has been sentenced to life in prison in a shoplifting case that ended in the death of a Walmart employee. Although William Alan Kennedy was never charged with causing the death of Bruce Florence, a Tarrant County jury found the Fort Worth man guilty of aggravated robbery for knocking Florence, 56, down while trying to run out of the Westworth Village Walmart with a stolen TV worth $348 on June 11, 2010.
Florence, who hit his head on the floor, was hospitalized and died June 20. The Tarrant County medical examiner's office, however, ruled that end-stage liver cirrhosis -- not the head injury -- caused Florence's death.
"After conscientious deliberations, the jury agreed that Kennedy's actions were a serious threat to Bruce Florence," Nelda Cacciotti, who prosecuted the case with Mark Thielman, said in a news release issued by the Tarrant County district attorney's office Thursday. "We hope that all shoplifters get the message that store thefts may have long-term consequences for the victim and the defendant."
The jury deliberated almost three hours before finding Kennedy guilty of aggravated robbery. State District Judge Mike Thomas then sentenced Kennedy to life in prison. Kennedy has appealed the case....
Besides aggravated robbery, court records show that Kennedy was also convicted Wednesday on five state-jail-felony charges of theft of property in similar shoplifting cases in Fort Worth, four of which involved Walmarts.
The applicable Texas robbery law makes a robbery "aggravated" if the defendant "causes serious bodily injury to another," but the potential Texas statutory punishment range for such a first-degree felony appears to be 5 years to life. Given the fact that the defendant here, though apparently a serial shoplifter, did not obviously intend to seriously hurt the store employee who tragically died, I do not see the justification for maxing out this defendant's punishment to life in prison!?! (I believe this particualr form of a life term includes the possibility of parole in Texas, though I also believe lifers in Texas are not even statutorily eligible for parole for 35 years!)
Thursday, September 15, 2011
Mandatory life (with parole) sentence for "lewdness with child under 14" before Nevada Supreme Court
The folks at Families Against Mandatory Minimums have this new press release spotlighting that a very interesting state mandatory minimum sentencing case is to be heard by the Nevada Supreme Court this afternoon. Here are the basics:
[Michelle Lyn] Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex. Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime. Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years....
FAMM noted in its [amicus] brief [available here] that Nevada is the only jurisdiction in the country that requires a mandatory life sentence for lewd conduct. The majority of states provide punishment of between several months to five years in prison. The minority of states that permit more severe penalties do so without utilizing mandatory minimum sentences anywhere near the life sentence required under Nevada law. Indeed, only two states even allow, in the broad exercise of a sentencing court’s discretion, that a life sentence might be imposed for such conduct in the most egregious cases.
In addition to the remarkable facts involved in this Nevada case, I find the legal issues here quite fascinating in part because there is a claim here pressed based on the Nevada Constitution's prohibition of "cruel or unusual" punishment as well as one based on the Eighth Amendment prohibition on "cruel and unusual" punishments. In addition, for modern Eighth Amendment jurisprudence in the wake of the Supreme Court's recent ruling in Graham, it is unclear just how much constitutional significance there is to the fact (1) that this life term was a result of a mandatory sentencing provision, and (2) that the defendant is eligible for (and probably would receive) parole before the end of this decade.
- A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!
- FAMM amicus brief assails life (with parole) sentence for woman who let teen touch breasts
UPDATE: A helpful reader wisely suggested I tweak the title of this post to clarify that the offense of conviction in this notable case concened "lewdness with child" under the age of 14. In addition, I thought it useful to link to the applicable Nevada statute and reprint its basic provisions:
Nevada Revised Section 201.230: Lewdness with child under 14 years; penalties.
1. A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child.
2. Except as otherwise provided in subsection 3 [providing for mandatory LWOP for repeat offender], a person who commits lewdness with a child is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.
September 15, 2011 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Thursday, September 08, 2011
"Cost as a Sentencing Factor: A Theoretical Inquiry"
The title of this post is the title of this great-sounding new paper from Professor Chad Flanders available via SSRN. Here is the abstract:
In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.
This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing. Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences. Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.
Monday, August 22, 2011
Why Iowa is a state to watch for sentencing fans and researchers (as well as political junkies)
From straw polls to caucuses, political junkies know that Iowa is a special state in the election season. But this recent article from the Des Moines Register, which is headlined "Hundreds of Iowa inmates could be released on ruling," highlights why sentencing fans also should be watching the state closely in the months ahead:
The Iowa Department of Corrections will have to parole or discharge hundreds and possibly thousands of Iowa inmates early - some of them dangerous - because of a recent Iowa Supreme Court ruling, a state official confirmed Thursday night.
Fred Scaletta, a spokesman for the department, said the department is recalculating the sentences of roughly 3,200 convicts whose time under corrections supervision is affected by the ruling last month. Officials plan to inform the Board of Corrections today at a meeting in Fort Dodge about the effects of the court decision.
The Iowa Supreme Court ruled unanimously in July that state law mandated that a convicted sex offender should receive credit for time served while under home supervision, even though he violated probation while at home....
Scaletta said that decision now applies to all defendants whose probation was revoked, regardless of their crime. "We just don't know how many there will be. We're having to do each defendant by hand," he said. "We're on it. We want to get this done as quickly as we possibly can." The department also must notify the defendants' victims.
A helpful reader altered me to this story and provided these follow-up statistics about the import and impact of what the Iowa Supreme Court has wrought:
The headline [of ther Register article] understates what is going to happen. The Iowa Department of Corrections is going to have to release the following (this is clipped from an email Iowa DOC sent to all County Attorneys last week):Currently in Prison = 2,152Currently in Prison and there are civil commitment issues needing addressed = 117Currently on Work Release = 165Currently on Parole = 1010Total = 3,444
They have said this will happen “immediately or within a short time.” [Because the Iowa] inmate count is 8775 ... within a short time the Iowa prison system is going to release approximately one quarter of the inmates ... [and] the parole rolls are going to drop by about 33%."
In other words, Iowa is about to have a court-ordered rapid experience with decarceration. I think all persons concerned with both mass incarceration and crime rates ought to be keeping a very close watch on how all this new freedom in Iowa plays out.
UPDATE: Thanks to commentor Robert for tracking down the Iowa Supreme Court opinion causing the commotion in the Hawkeye State. The unanimous opinion in Anderson v. Iowa, No. 09-0507 (Iowa July 29, 2011) (available here), gets started this way:
“Ours not to reason why, ours but to read, and apply. It is our duty to accept the law as the legislative body enacts it.” Holland v. State, 253 Iowa 1006, 1011, 115 N.W.2d 161, 164 (1962) (Thompson, J.). In this case we must decide whether a convicted sex offender incarcerated after revocation of his probation is entitled to credit against his prison sentence for time spent living at home under supervised probation wearing an electronic monitoring device on his ankle. The district court denied the credit, and a divided court of appeals affirmed. Although it is counterintuitive to count days living at home against a state prison sentence, we conclude the plain language of Iowa Code section 907.3(3) (2007), requires credit for the time Anderson was committed to electronic monitoring and home supervision during his probation. We therefore vacate the decision of the court of appeals, reverse the district court ruling, and remand for entry of an order providing that sentencing credit.
August 22, 2011 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (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.
Tuesday, August 09, 2011
"Smart Reform is Possible: States Reducing Incarceration Rates and Costs"
Since President Richard Nixon first announced the "War on Drugs" 40 years ago, the United States has adopted "tough on crime" criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world. These past 40 years of criminal justice policy-making have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building. These policies have also come at a great expense to taxpayers. But budget shortfalls of historic proportions are finally prompting states across the country to realize that less punitive approaches to criminal justice not only make more fiscal sense but also better protect our communities.
This report highlights six traditionally "tough on crime" states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — that recently passed significant bipartisan reforms to reduce their prison populations and budgets. These states experienced declines in their crime rates while these new policies were in place. The report also highlights national trends in criminal justice legislation and offers a number of recommended ways that lawmakers in other states can reform their pre-trial, sentencing, parole, and probation systems. Smart Reform is Possible serves as an exciting and essential blueprint for states on the cusp of considering the reform of their corrections systems.
Wednesday, July 27, 2011
"Pa., N.J. officials question costs of tough sentencing"
The title of this post is the headline of this local article, which starts this way:
As states across the country struggle with anemic revenue, officials are taking a harder look at one subset of government that eats huge chunks of taxpayer money: prisons.
Corrections officials on both sides of the Delaware say the "get tough on crime" philosophy that has governed prison operations since the early 1980s must change. It's expensive and, in many cases, it's not working.
"The fact that our budget is $1.86 billion has a lot of people rethinking some of the assumptions we've made in the past," said John E. Wetzel, Pennsylvania's secretary of corrections. "When we over-incarcerate individuals -- and there is a portion of our population that we over-incarcerate -- we're not improving public safety. Quite the opposite."
Advocates of prison reform say Pennsylvania and New Jersey could be well-positioned for change. Both governors are Republican former prosecutors, credentials that buffer accusations that whittling down the prison population means going "soft" on crime.
And Govs. Corbett and Christie have picked corrections chiefs who support a more rehabilitative approach to corrections, a method that, studies show, can reduce recidivism.
Wetzel and New Jersey's corrections commissioner, Gary M. Lanigan, want to keep nonviolent offenders out of prison, diverting them to drug rehabilitation or other programs instead. "People are realizing that there is a huge cost to incarceration, and there's ways to do it smarter," Lanigan said. "There are people who belong in prison and there's people who are better served in the community."
Recidivism remains a problem nationwide; roughly half of those released in New Jersey and Pennsylvania return within three years.
But while New Jersey's prison population has declined 11 percent to 21,182 department inmates since its peak in 1999, Pennsylvania's population continues to increase. Since 1999, Pennsylvania's prison population has increased 41 percent, and the state now holds more than 51,000 people. In 2009, Pennsylvania incarcerated more people than any other state that year, according to the U.S. Department of Justice.
Tuesday, July 12, 2011
Another timely and terrific NASC conference in the works this summer
I am pleased to highlight the National Association of Sentencing Commissions' annual conference, which this year is being hosted by the Oregon Criminal Justice Commission and the Willamette University College of Law. This year's NASC conference is taking place in Portland, Oregon from July 31 -- August 2, 2011, and the conference is titled "Blazing a Trail to the Future." This year's agenda reveals how timely, thoughtful and forward-looking the program is for today's sentencing times, as evidence by this partial list of panel topics:
- Cost-Benefit Analysis in Criminal Justice
- Recidivism Research
- A New Look at Prosecutorial Discretion
- Examination of Mandatory Minimum Sentences
- Crime Perceptions and Media: Evidence Based Journalism?
I am very bummed that other summer commitments mean I will not be able to make it out to Oregon for this event, but I heartily recommend this conference to all serious sentencing practitioners and academics. When able to attend, I always learn more new stuff about sentencing reseaerch and also sentencing in the states from attending NASC conferences than from attending any other annual conference.
Thursday, June 30, 2011
"Sentencing-overhaul law to reduce Ohio's prison population"
The title of this post is the headline of this article in today's Columbus Dispatch. Here are the details:
The tough-on-crime cycle that began in the 1980s came full circle yesterday when Gov. John Kasich signed criminal-sentencing reform that could reduce the prison population by several thousand inmates in the next three years.
Former Attorney General Jim Petro, who was there to watch Kasich sign House Bill 86 into law, said he was relieved. "It didn't work then, and it isn't working now," Petro said of the crime crackdown that he supported as a Republican state lawmaker and enforced as attorney general from 2003 to 2007. He said the 1980s view of crime is too costly to maintain.
It is projected that the reform law will save taxpayers $46.3 million over three years, while reducing the prison population by about 7.5 percent. State prisons now hold 50,655 inmates, about 31 percent over the design capacity.
Legislative backers consistently said savings would reach $78 million, based on an estimate from a study done for the state by the Council of State Governments. But Carlo LoParo, spokesman for the Department of Rehabilitation and Correction, said the actual savings will be almost $46.3million. He said that's because not all elements proposed by the study ended up in the final version of the legislation.
The law will divert some nonviolent offenders, including drug offenders, to community programs; give inmates the chance to earn up to 8 percent credit off their sentences by completing treatment and training programs; and allow the release of inmates, with court approval, after they have served at least 80 percent of their sentences. The law also equalizes penalties for crack and powder-cocaine possession and raises the threshold for a felony theft charge to $1,000 from $500.
Kasich signed the bill in an Ohio Senate hearing room jammed with lawmakers and past and present prison officials. "I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands," Kasich said.
Ohio prisons director Gary C. Mohr called it "a day of hope." He said the law will keep nonviolent offenders out of prison where they now come into contact with -- and are negatively influenced by -- long-term offenders and violent gang members....
Other provisions of the law will require the prisons agency to issue a report justifying why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs and create an instant diversion program for shoplifters.
The bill also includes reforms related to youth offenders. "These reforms will mitigate placing kids on a conveyor belt to adult crime," said Judge Theresa Dellick of Mahoning County Juvenile Court.
June 30, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack
Thursday, May 19, 2011
In Arizona, there are "[m]ore conservatives joining push to change sentencing guidelines"
The quote in the title of this post is the headline of this effective lengthy article in from a local Arizona media outlet. Here are snippets from the reporting:
Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana. Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.
Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals. Losing contact with their families, communities and jobs contributes to this, they argue.
As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable....
The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.
Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision. “Anything that’s cheaper than what we are spending on incarcerated individuals now -- that’s just fiscal sense,” he said. “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”
Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject. “That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.
Tuesday, May 17, 2011
"Five Years for Opening a Bottle of Ketchup? Trying to Make Sense of New Jersey’s Patchwork Sentencing Guidelines"
The title of this post is the headline of this interesting new piece from The Jersey City Independent, which in turn reports on an interesting public policy report from the Drug Policy Alliance. Here is how the piece starts:
If you ever have to decide between opening a bottle of ketchup and placing it back on the supermarket shelf, or engaging in a fisticuffs with a consenting adult, go for the latter. Giving and taking punches in public might earn you a 30 day sentence, but popping that ketchup seal could cost you five years hard time. And if, by some chance of fate, you find yourself deliberating between attending a dog fight or punching someone in the eye, take a swing. The black eye will cost you 180 days in jail, but watching the dog fight could land you in prison for five years.
If the disparities between those sentences don’t seem rational, that’s because they aren’t. They are the product of decades of ad hoc legislative revision of the New Jersey criminal code that has resulted in overlapping charges, inconsistently graded offenses, and mandatory minimums whose penalties conflict with the values of New Jersey residents. Many of those irrationalities and redundancies have been compiled in “Crime and Punishment in New Jersey,” a new report published by the Drug Policy Alliance (DPA) that the group has been distributing in an attempt to create momentum for sentencing reform legislation.
In 1978, New Jersey, like the majority of states, adopted the Model Penal Code, a comprehensive code of criminal justice that was designed to incorporate most of the serious criminal activity a creative mind might engage in. In total, the version of the Model Penal Code adopted in New Jersey included 243 offenses and suboffenses, a large but not unmanageable number. But since then, Garden State legislators have added an additional 407 offenses and suboffenses. Which raises the question: Are New Jersey’s criminals so creative they have discovered 407 new ways to create mischief in 33 years, or has something gone wrong in the legislature?
According to the DPA, the fault lies with the legislature. In its study, the Alliance surveyed New Jersey residents about the seriousness of criminal offenses. They asked respondents to grade crimes by grouping them according to perceived seriousness. Respondents were also asked about what penalties should be assessed for crimes such as opening ketchup at the supermarket, watching a dog fight, or punching someone in the eye, and found that 90 percent of the time New Jersey residents believed the appropriate punishment was less severe than the criminal code currently calls for.
Often when respondents thought offenses were comparable (ketchup vs. fist fight; dog fight vs. black eye), the criminal code assigned wildly disparate penalties to them. “I think the big take-home message is really that voters’ positions on criminal sentencing are a lot more nuanced and reasonable than the general perception,” Roseanne Scotti says.
Scotti is the New Jersey state director of the DPA, and therefore most interested in the portion of the report that documents the public’s opinion of drug sentences. “I think most people have no idea you can get 10 or 20 years for a few marijuana plants in New Jersey,” she says, referencing one of the report’s findings.
Friday, May 06, 2011
Oklahoma on verge of joining states enacting significant prison and sentencing reforms
As detailed in this local article, which is headlined "Prison reform bill heads to Oklahoma governor,"in the Sooner State a "bill intended to relieve prison overcrowding and reduce the strain it places on the state budget is on the way to the governor." Here are the specifics:
The House of Representatives on Thursday approved House Bill 2131, which among other things would expand both the use of community sentencing programs and the electronic monitoring of low-risk, nonviolent inmates. It’s the first significant piece of legislation favoring alternative sentences for nonviolent offenders. Legislators over the years have passed “tough on crime” measures that have increased penalties and prison sentences, a key reason why Oklahoma’s incarceration rate routinely ranks in the top five nationally.
The state’s prison population has grown from 22,600 in 2000 to nearly 26,000, with the Corrections Department’s budget increasing from $366 million to $483 million. More than half of the state’s inmates are in prison for nonviolent offenses. The system is now at 96 percent capacity, but because of budget shortfalls, is staffed at 69 percent of authorized levels, according to the speaker’s office.
House Speaker Kris Steele, the author of the measure, said the bill is expected to save the Corrections Department at least $5 million a year. But those savings would occur over time as more nonviolent offenders are sentenced to community service or are monitored with electronic devices. Both methods are far less expensive than keeping inmates in prison.
In Oklahoma, it costs about $56 a day to incarcerate someone; by comparison, it costs about $3.50 a day to send an offender to supervised community sentencing and electronic monitoring costs about $4.75 a day, according to the speaker’s office. “We cannot afford to continue on the current path with our incarceration policies,” said Steele, R-Shawnee. “This bill shows we are serious about changing course to be smarter on crime.”
Thursday, May 05, 2011
Major Ohio sentencing and prison reforms close to becoming reality
As detailed in this local article, headlined "Sentencing overhaul would save state $78 million," Ohio is on the verge of enacting some significant criminal justice reforms. Here are the details:
House Bill 96, passed 95-2 yesterday by the Ohio House, is estimated to save the state nearly $78 million annually on prison costs, in part by diverting non-violent offenders to community programs and giving inmates credit off their sentences for participating in treatment and training.
In essence, the bill rolls back much of the "tough on crime" thinking that dominated state government for the past two decades -- resulting in a prison system with a nearly $2 billion biennial budget that is bulging with 31 percent more inmates than it was designed to hold.
Further, it provides the option of treatment instead of prison for low-level, nonviolent drug offenders, an option Ohio voters soundly rejected in a statewide ballot issue nine years ago.
The measure now heads to the Ohio Senate, where more tinkering is expected before it hits Gov. John Kasich's desk. The reforms were originally in Kasich's proposed two-year budget, but were pulled out this week to be considered as a separate measure. "These are common sense improvements that are badly needed, and I look forward to their quick passage in the Senate so I can sign them into law," Kasich said in a statement after the vote....
Rep. Loretta Heard, D-Columbus, said the bill will "slow down the revolving door in Ohio prisons." She said it will have "win-win outcomes for inmates and our communities."
On the other side of the aisle, Rep. Lynn Slaby, R-Akron, a former judge and prosecutor, said if he was "wearing my prosecutor's hat, I'd say, 'No, don't vote for it. We want to lock them all up and throw away the key. ' If I was wearing my judge's hat, I'd say, 'Don't vote for this because it takes away all my discretion, and you're trying to tell me how to do my job.'" But as a freshman legislator, Slaby said he was happy to vote for the bill "because it accomplishes so much."
Among many provisions, the bill would:
• Authorize the Ohio Department of Rehabilitation and Correction to seek court permission to release certain inmates who have served at least 85 percent of their sentences.
• Credit offenders, with certain exceptions, who complete education, drug treatment and job training programs with up to five days per month off their sentence.
• Increase to $1,000 from $500 the threshold for increased theft penalties.
• Sentence most child-support offenders to community programs, not prison.
• Equalize penalties for crack cocaine and powder cocaine possession.