Thursday, May 19, 2011
In Arizona, there are "[m]ore conservatives joining push to change sentencing guidelines"
The quote in the title of this post is the headline of this effective lengthy article in from a local Arizona media outlet. Here are snippets from the reporting:
Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana. Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.
Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals. Losing contact with their families, communities and jobs contributes to this, they argue.
As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable....
The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.
Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision. “Anything that’s cheaper than what we are spending on incarcerated individuals now -- that’s just fiscal sense,” he said. “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”
Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject. “That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.
Tuesday, May 17, 2011
"Five Years for Opening a Bottle of Ketchup? Trying to Make Sense of New Jersey’s Patchwork Sentencing Guidelines"
The title of this post is the headline of this interesting new piece from The Jersey City Independent, which in turn reports on an interesting public policy report from the Drug Policy Alliance. Here is how the piece starts:
If you ever have to decide between opening a bottle of ketchup and placing it back on the supermarket shelf, or engaging in a fisticuffs with a consenting adult, go for the latter. Giving and taking punches in public might earn you a 30 day sentence, but popping that ketchup seal could cost you five years hard time. And if, by some chance of fate, you find yourself deliberating between attending a dog fight or punching someone in the eye, take a swing. The black eye will cost you 180 days in jail, but watching the dog fight could land you in prison for five years.
If the disparities between those sentences don’t seem rational, that’s because they aren’t. They are the product of decades of ad hoc legislative revision of the New Jersey criminal code that has resulted in overlapping charges, inconsistently graded offenses, and mandatory minimums whose penalties conflict with the values of New Jersey residents. Many of those irrationalities and redundancies have been compiled in “Crime and Punishment in New Jersey,” a new report published by the Drug Policy Alliance (DPA) that the group has been distributing in an attempt to create momentum for sentencing reform legislation.
In 1978, New Jersey, like the majority of states, adopted the Model Penal Code, a comprehensive code of criminal justice that was designed to incorporate most of the serious criminal activity a creative mind might engage in. In total, the version of the Model Penal Code adopted in New Jersey included 243 offenses and suboffenses, a large but not unmanageable number. But since then, Garden State legislators have added an additional 407 offenses and suboffenses. Which raises the question: Are New Jersey’s criminals so creative they have discovered 407 new ways to create mischief in 33 years, or has something gone wrong in the legislature?
According to the DPA, the fault lies with the legislature. In its study, the Alliance surveyed New Jersey residents about the seriousness of criminal offenses. They asked respondents to grade crimes by grouping them according to perceived seriousness. Respondents were also asked about what penalties should be assessed for crimes such as opening ketchup at the supermarket, watching a dog fight, or punching someone in the eye, and found that 90 percent of the time New Jersey residents believed the appropriate punishment was less severe than the criminal code currently calls for.
Often when respondents thought offenses were comparable (ketchup vs. fist fight; dog fight vs. black eye), the criminal code assigned wildly disparate penalties to them. “I think the big take-home message is really that voters’ positions on criminal sentencing are a lot more nuanced and reasonable than the general perception,” Roseanne Scotti says.
Scotti is the New Jersey state director of the DPA, and therefore most interested in the portion of the report that documents the public’s opinion of drug sentences. “I think most people have no idea you can get 10 or 20 years for a few marijuana plants in New Jersey,” she says, referencing one of the report’s findings.
Friday, May 06, 2011
Oklahoma on verge of joining states enacting significant prison and sentencing reforms
As detailed in this local article, which is headlined "Prison reform bill heads to Oklahoma governor,"in the Sooner State a "bill intended to relieve prison overcrowding and reduce the strain it places on the state budget is on the way to the governor." Here are the specifics:
The House of Representatives on Thursday approved House Bill 2131, which among other things would expand both the use of community sentencing programs and the electronic monitoring of low-risk, nonviolent inmates. It’s the first significant piece of legislation favoring alternative sentences for nonviolent offenders. Legislators over the years have passed “tough on crime” measures that have increased penalties and prison sentences, a key reason why Oklahoma’s incarceration rate routinely ranks in the top five nationally.
The state’s prison population has grown from 22,600 in 2000 to nearly 26,000, with the Corrections Department’s budget increasing from $366 million to $483 million. More than half of the state’s inmates are in prison for nonviolent offenses. The system is now at 96 percent capacity, but because of budget shortfalls, is staffed at 69 percent of authorized levels, according to the speaker’s office.
House Speaker Kris Steele, the author of the measure, said the bill is expected to save the Corrections Department at least $5 million a year. But those savings would occur over time as more nonviolent offenders are sentenced to community service or are monitored with electronic devices. Both methods are far less expensive than keeping inmates in prison.
In Oklahoma, it costs about $56 a day to incarcerate someone; by comparison, it costs about $3.50 a day to send an offender to supervised community sentencing and electronic monitoring costs about $4.75 a day, according to the speaker’s office. “We cannot afford to continue on the current path with our incarceration policies,” said Steele, R-Shawnee. “This bill shows we are serious about changing course to be smarter on crime.”
Thursday, May 05, 2011
Major Ohio sentencing and prison reforms close to becoming reality
As detailed in this local article, headlined "Sentencing overhaul would save state $78 million," Ohio is on the verge of enacting some significant criminal justice reforms. Here are the details:
House Bill 96, passed 95-2 yesterday by the Ohio House, is estimated to save the state nearly $78 million annually on prison costs, in part by diverting non-violent offenders to community programs and giving inmates credit off their sentences for participating in treatment and training.
In essence, the bill rolls back much of the "tough on crime" thinking that dominated state government for the past two decades -- resulting in a prison system with a nearly $2 billion biennial budget that is bulging with 31 percent more inmates than it was designed to hold.
Further, it provides the option of treatment instead of prison for low-level, nonviolent drug offenders, an option Ohio voters soundly rejected in a statewide ballot issue nine years ago.
The measure now heads to the Ohio Senate, where more tinkering is expected before it hits Gov. John Kasich's desk. The reforms were originally in Kasich's proposed two-year budget, but were pulled out this week to be considered as a separate measure. "These are common sense improvements that are badly needed, and I look forward to their quick passage in the Senate so I can sign them into law," Kasich said in a statement after the vote....
Rep. Loretta Heard, D-Columbus, said the bill will "slow down the revolving door in Ohio prisons." She said it will have "win-win outcomes for inmates and our communities."
On the other side of the aisle, Rep. Lynn Slaby, R-Akron, a former judge and prosecutor, said if he was "wearing my prosecutor's hat, I'd say, 'No, don't vote for it. We want to lock them all up and throw away the key. ' If I was wearing my judge's hat, I'd say, 'Don't vote for this because it takes away all my discretion, and you're trying to tell me how to do my job.'" But as a freshman legislator, Slaby said he was happy to vote for the bill "because it accomplishes so much."
Among many provisions, the bill would:
• Authorize the Ohio Department of Rehabilitation and Correction to seek court permission to release certain inmates who have served at least 85 percent of their sentences.
• Credit offenders, with certain exceptions, who complete education, drug treatment and job training programs with up to five days per month off their sentence.
• Increase to $1,000 from $500 the threshold for increased theft penalties.
• Sentence most child-support offenders to community programs, not prison.
• Equalize penalties for crack cocaine and powder cocaine possession.
Friday, April 15, 2011
Missouri prosecutors pushing to abolish state's sentencing commission and guidelines
This telling and disappointing sentencing reform storyout of Missouri provides further proof that prosecutors are generally fans of sentencing guidelines only when they serve prosecutorial interests (as they do in the federal system) and not when they serve judicial or defense interests (as they apparently do in Missouri). The story is headlined "Mo. House targets sentencing guidelines," and here are excerpts:
An obscure state agency has worked for years to devise a statistical model that helps judges decide which criminals to send to prison and which ones to place in community programs. The Missouri Sentencing Advisory Commission trumpets those criminal sentencing guidelines as a way to reserve prison space for the most violent offenders and to use community alternatives when they would best keep an offender from committing new crimes.
But prosecutors have long criticized the guidelines as cookie-cutter justice, and on Thursday, they scored a victory when the Missouri House voted to abolish the commission.
The bill's sponsor, Rep. Stanley Cox, R-Sedalia, said the agency's methodology was flawed and had the effect of promoting an agenda to reduce the prison population. "The end of this commission will, in fact, remove the inaccurate information that is communicated to our sentencing judges in the state of Missouri, whereby liberal judges are given cover to release from prison or reduce the sentence and give lighter sentences to the worst offenders, second offenders and violent offenders," Cox said.
The House passed the bill on a vote of 100-57. It now moves to the Senate, which has until May 13, the Legislature's mandatory adjournment, to decide whether to pass it.
The commission's supporters said that its guidelines weren't perfect but that they should be fixed rather than scrapped. The sentencing commission "does a lot of good and makes mistakes," said Rep. Chris Kelly, D-Columbia, chairman of the subcommittee that oversees the budget of the state's prisons. "It's bad to start throwing out tools" that can help manage the prison population, he said.
At issue is the state's development of "evidence-based" sentencing guidelines, which try to assess a criminal's risk of reoffending as an element in whether to send the person to prison. Legislators established the commission in 1993 to study sentencing practices, then amended the law in 2003 to ask the group to establish a system for sentencing recommendations.
Since 2005, judges have received reports that suggest a sentence, taking into account information such as the offender's age, work history, education and criminal history. The judges have discretion in whether to follow the guidelines or ignore them.
Missouri is among about 20 states that have such commissions. Supporters say sentencing guidelines help achieve consistency and control discrimination. Opponents say they ignore the circumstances of individual crimes and misrepresent data to arrive at "average" sentences.
The push to get rid of the commission — and the guidelines — comes from the Missouri Association of Prosecuting Attorneys. Platte County Prosecuting Attorney Eric Zahnd told a House committee that the guidelines had "no scientific foundation" and had resulted in "outrageously lenient sentencing recommendations."...
Jasper County Prosecuting Attorney Dean Dankelson branded the guidelines as unreliable, pointing to a study by Jeff Milyo, a social sciences professor at the University of Missouri. Milyo argued that the guidelines had the potential to mislead judges about the costs and benefits of alternative sentences. He said the formula ignored the cost to society when a convicted criminal on probation committed another crime.
However, other studies have credited the system with helping keep Missouri's prison population steady at about 30,500 inmates since 2005. In fact, the House's action came a day after a nonprofit group released a national study that singled out Missouri for "dramatic" progress in reducing the number of repeat offenders.
The percentage of Missouri offenders who returned to prison within two years dropped to 36.4 percent for those released in 2009, down from nearly half of those released in 2004, according to the study by the Pew Center on the States. The study gave credit to Missouri for mapping out "a meticulous plan for managing all but the most serious violators in the community" and for extensive training of probation and parole officers in how to use the new "risk assessment" tool.
"The fact is, it's being effective," said Mike Wolff, a Missouri Supreme Court judge who is also the longtime chairman of the state's sentencing commission. "The prosecutors don't like this because they have been traditionally the major if not the only source of information at sentencing time," Wolff said. "Having statistical information available doesn't particularly suit them."
Critically, as this article notes, the Missouri Sentencing Advisory Commission only produces information and advisory guidance; state sentencing judges have complete discretion to ignore the guidelines if and whenever a prosecutor can effectively argue in any individual case that a sentencing recommendation is too lenient. But rather than urge prosecutors to work harder toward achieving sentencing justice in each individual case, the Missouri Association of Prosecuting Attorneys seeks to eliminate a source of sentencing information for judges which is produced without a prosecutorial bias.
Wednesday, April 06, 2011
"Prison reform advocates press states to shift money out of corrections system"
The title of this post is the headline of this notable article from the Washington Post. Here are excerpts:
Advocates of overhauling the U.S. criminal justice system see a bright spot in the dire financial straits that states are facing: Politicians eager to trim budgets are willing to cut spending on prisons and corrections programs.
Several liberal and conservative groups have joined together to take advantage of the moment. A coalition that includes the evangelical Prison Fellowship Ministries, the NAACP, the American Conservative Union and the American Civil Liberties Union is working to push changes that they hope will lower the U.S. prison population. “We find ourselves with a new crop of allies,” said NAACP President Benjamin Jealous. “This is a place where we’ve found commonality.”
His organization is to release a report Thursday, endorsed by conservative activists Grover Norquist and Pat Nolan, calling on states to cut spending on corrections and to direct that money to education. The study, which bemoans the increasing amount of money spent on incarceration, notes that state spending on prisons has grown at six times the rate of spending on higher education in the past 20 years....
In 2005, Texas began implementing sentencing changes and poured money into drug treatment and probation programs. The overhaul slowed the state’s incarceration rate, led to a 12.8 percent drop in violent crime since 2003 and saved the estimated $2 billion that would have gone to building new prisons to house inmates, according to a 2010 state report and advocates. Lawmakers in Florida and Georgia are considering similar changes.
“Prisons are necessary but way overused,” said Nolan, vice president of Prison Fellowship Ministries. “As conservatives, we are suspicious of government and [also] suspicious of the cost of government. But we have turned sort of a blind eye on the spending on prison. It has skyrocketed without a parallel increase in public safety.”...
Jealous has also made the issue a top priority for the NAACP. His group brought together the coalition of conservatives and liberals and will begin posting billboards in major cities with slogans such as: “Welcome to America, home to 5 percent of the world’s people & 25 percent of the world’s prisoners.” He will also meet with state officials to ask for cuts to corrections spending and corresponding increases in spending to public higher education.
That could prove difficult. Even states that have begun to lower their prison populations have difficulty achieving substantial savings, said Marc Mauer, executive director of the Sentencing Project, which advocates for lower imprisonment rates. “The only way you can really reduce spending is close prisons,” Mauer said. “There’s a lot of resistance [to that] in some states.”
Scott Burns, executive director of the National District Attorneys Association, said the resistance also stems from concerns that violent criminals could released if the cuts go too deep. “It is very hard to earn your way into prison in the United States,” he said. “These aren’t people who just had a baggie of marijuana or shoplifted.”
Tuesday, April 05, 2011
Budgets and litigation have shrunk California's prison population ... but not enough
Stateline.org has this fantastic new piece on the state of California's prison system under the headlined "California shrinks its prisons, but overcrowding persists." Here are excerpts:
As the financially battered state enacts huge budget cuts, it has no choice but to downsize its sprawling correctional system, which now consumes 10 percent of the state budget and swallows more taxpayer dollars than higher education — a fact that, if public opinion surveys are accurate, Californians abhor. A single prison bed costs taxpayers $44,500 a year.
The federal courts have dialed up the pressure, putting state officials on notice that severe overcrowding — a fact of life in California prisons for years — is no longer acceptable. Two years ago, a panel of three federal judges found that overcrowding had created unconstitutionally inhumane conditions, ordering the state to reduce its inmate population by more than 40,000 — a staggering figure that eclipses the entire prisoner total of all but nine states.
Now, the U.S. Supreme Court is about to weigh in on the overcrowding problem by deciding whether to uphold, strike down or modify that order. Oral arguments in the case, Schwarzenegger v. Plata, made clear that the court’s decision could break along familiar ideological lines....
California’s prison downsizing efforts began before the Supreme Court’s involvement. In 2006, when the state's inmate population reached an all-time high of more than 172,000, then-Governor Arnold Schwarzenegger declared an overcrowding emergency, warning that inmates and guards alike faced “extreme peril.”
About 10,000 inmates were promptly shipped to private prisons in Arizona, Mississippi and Oklahoma. More recently, thousands of others had their release dates moved up as state lawmakers, usually known for enhancing criminal penalties, were forced to change course. Through an expansion of so-called “good-time credits,” they authorized many inmates to leave prison ahead of schedule while reducing parole supervision for others, hoping to reduce the number sent back for relatively minor technical violations. Today, California's in-state inmate population is down to 152,000.
Governor Jerry Brown, who took office in January, hopes to keep going. Brown wants to shift tens of thousands of low-level state inmates to county jails, even though many of those jails themselves are at capacity. If enacted, Brown's plan could reduce the state prison population by another 38,000 within four years, according to a nonpartisan legislative estimate. It also may force counties to release thousands of offenders from their jails to make room for the state transfers....
In the notoriously divided Legislature, where budget negotiations between Brown and Republicans collapsed last week, it is difficult to find consensus on any policy, let alone one as emotionally and politically charged as prisons. Not a single Republican voted for Brown’s plan to shift inmates to the counties. And with funding for the plan now uncertain, there is discussion of leaning more heavily on spending reductions to balance the budget — cuts that could speed prisoner releases and decimate what remains of inmate rehabilitation programs.
Meanwhile, fears about a spike in crime are common. Law enforcement officials warn that more releases — whether they are ordered by the Legislature or by the Supreme Court — will have predictable long-term consequences on crime, given that parolees in California are far more likely than in other states to run into trouble again. “I’m not Nostradamus, but we have a 70 percent recidivism rate. That is a fact,” says Sacramento County Sheriff Scott Jones. “If you release 40,000 inmates, 28,000 of those will reoffend.”
Saturday, April 02, 2011
"State budget crises push sentencing reforms"
The title of this post is the headline of this lengthy new AP story that provides an effective overview of how, as a result of bills for mass incarceration coming due, sentencing reforms are part of many states' efforts to deal with budget issues. Here are a few excerpts:
As costs to house state inmates have soared in recent years, many conservatives are reconsidering a tough-on-crime era that has led to stiffer sentences, overcrowded prisons and bloated corrections budgets. Ongoing budget deficits and steep drops in tax revenue in most states are forcing the issue, with law-and-order Republican governors and state legislators beginning to overhaul years of policies that were designed to lock up more criminals and put them away for longer periods of time....
Republican governors and lawmakers pushed for many of the policies that put low-level drug offenders and nonviolent felons behind bars and extended sentences for many convicted criminals. But with the GOP in control of more financially strapped state governments, a growing number of Republican elected officials favor a review of the sentencing laws that contributed to a fourfold increase in prison costs over two decades.
The total cost of incarcerating state inmates swelled from $12 billion in 1988 to more than $50 billion by 2008.... Fall election gains put Republicans in control of 25 state legislatures and 29 governor's offices, and many have pledged not to raise taxes even as they face budget shortfalls. Reforming laws to send fewer low-level offenders to state prison or reduce their sentences is a more politically palatable way to save money than cutting spending for schools or health care programs....
The proposals vary by state, but the hallmarks include ways to reduce sentences for lower-level offenders, direct some offenders to alternative sentencing programs, give judges more sentencing discretion and smooth the transition for released prisoners. In many states, the Republican measures parallel Democratic efforts that stalled long ago. The push to reform sentencing laws has forged uneasy alliances between law-and-order politicians and activists who have long argued that many laws went too far....
Backers of the state measures almost always refer to Texas, which began implementing sentencing changes six years ago. Faced with the prospect of housing 17,000 more inmates by 2012, the state poured money into drug treatment, while putting more drug abusers and petty thieves on probation. The overhaul slowed the growth of the state's incarceration rate and led to a 12.8 percent drop in the state's serious crime rate since 2003, according to a January 2010 state report. The state also saved more than $2 billion it would have spent on building new prisons to house the inmates, advocates say....
While most states are examining sentencing reforms that would target only future convicts, Oklahoma and Texas are examining changes that would release some inmates early to save money. In Oklahoma, some offenders could be eligible for electronic-monitoring. Texas, facing a $15 billion budget deficit, is considering whether to transition some elderly prisoners to nursing homes, house arrest or hospices.
Many prosecutors are skeptical of changes to criminal-sentencing guidelines, saying tough policies have led to reduced crime. Jim Reams, a prosecutor in New Hampshire's Rockingham County, said an early release program in that state has been a disaster because probation and parole officers are overwhelmed by the number of newly released prisoners flooding the system. "The budget crises are being converted into a public safety crisis," said Reams, who is president of the National District Attorneys Association. He worries that releasing more prisoners might have negative consequences.
The AP also has this companion piece headlined "Sentencing changes in some states at a glance."
Regular readers likely know of these stories and others involving state-level reform effort, and should also recognize that these latest sentencing reform discussions are largely the culmination of political, economic and social forces that have been developing for years. What makes all of this so fresh and interesting is the ways in which the political tides of 2010, with so many budget-oriented Republicans taking over state offices with budgets so tight, has sped up the processes of reform.
Some recent related posts with reports from a few states and the modern politics of reform:
- "Budget Crunch Forces A New Approach To Prisons"
- Prison practicalities in lean budget times
- Budget issues prompt big talk of big prisoner release in Alabama
- "Florida Senators Look to Texas for Prison System Cuts"
- "Gov. Beshear signs bill aimed at lowering Kentucky prison population"
- Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets
- Pennsylvania auditor urging state sentencing reform to reduce prison costs
- "Conservatives latch onto prison reform"
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- "Right on Crime: The Conservative Case for Reform" officially launches
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- Examining the politics of crime and punishment in modern gubernatorial settings
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
Thursday, March 24, 2011
New report from The Sentencing Project on "Cracked Justice"
Via e-mail I received this report on this notable new report from The Sentencing Project:
A new report from The Sentencing Project, Cracked Justice, ... addresses disparities in cocaine sentencing in 13 states and documents efforts at the federal and state level to correct these injustices. State cocaine sentencing disparities include:
• In Missouri, where a defendant convicted of selling six grams of crack cocaine faces the same prison term -- a ten-year mandatory minimum -- as someone who sells 450 grams of powder cocaine, or 75 times that amount.
• In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a ten-year mandatory minimum sentence is triggered for five grams of crack cocaine and 28 grams of powder cocaine.
• In Ohio, sentencing disparities vary across felony categories based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100 grams of crack cocaine for major drug offenses and imposes a ten-year mandatory minimum.
Former state judge laments "The Injustice of Sentencing Guidelines"
Glenna Hall, a retired superior court judge from Washington state, has this new commentary in The Atlantic headlined "The Injustice of Sentencing Guidelines." Here is a snippet:
For me, sentencing, particularly for drug crimes, was in many ways the hardest part of my work as a judge. Not because the decisions or the work were hard (though of course they were), but because, given the restrictive nature of the sentencing guidelines in Washington, I had virtually no discretion or authority to consider anything about the human being standing before me. I could consider only the nature of the crime, expressed in a number, and the number and kinds of offenses the defendant had committed, also expressed in a number. From those two quantified factors was derived a quite narrow range I was required to use in imposing a sentence. Except in a minuscule set of circumstances, I could only work within that range. The temptation not to think at all but rather to pick a number in the middle was strong.
One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me. Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office. His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit. He wept as he told of us his long addiction and his recent attempts to get clean. He couldn't go on living this way, he said. He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison. He begged me to help him get into some kind of program. He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change. By the time he finished speaking, I was the only person in the room not crying. With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence. There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.
People like this appeared before me week after week. I hated Fridays. I came home from work with the memory of what seemed to me to be injustices I had done. I considered resigning from the best job I had ever had. I didn't quit, and I rotated off the calendar that involved weekly sentencings. Later I volunteered to take on sentencing calendars that were harder to deal with but that carried penalties that seemed more rational to me than those required for drug crimes.
Eventually, Washington revised its drug sentencing laws to permit more leeway and more treatment options, but the state still has mandatory sentencing guidelines that can lead to harsh and unyielding results.
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.
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.
Thursday, February 17, 2011
In Toledo to talk about Ohio sentencing policies and practices
I am pleased and honored to be in Toledo tonight and tomorrow to participate in a terrific symposium sponsored by the University of Toledo Law Review titled "Ohio’s Sentencing Policies and Practices, Costs and Consequences." This webpage provides some backstory:
Ohio has more than 50,000 inmates confined in more than thirty penal institutions. The average cost per inmate year is more than $25,000. Even in robust economic times asking whether the budgetary impact is bearable would be worthwhile. In times of economic distress and unprecedented scarcity of fiscal resources, it is imperative to ask whether Ohio’s taxpayers can continue indefinitely to bear the costs and consequences of incarceration of so many inmates — especially those who have committed non-violent offenses and are demonstrably low-risk. The 2011 Toledo Law Review Symposium will address this and related questions, including what alternatives may exist to provide safety to Ohio’s citizens while making more resources available for other crucial public needs.
A bunch of folks have worked to put together an amazing program with all sorts of amazing speakers, and I expect to learn a lot throughout the day. Indeed, I have already learned a lot from this terrific and timely sentencing reform resource list assembled by the Toledo folks.
Some recent and older related posts:
- Ohio on path to turning to treatment over prison for non-violent drug offenders
- Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets
- "Prison-reform bills would save money, improve public safety"
- ACLU of Ohio produces major report on prison growth and problems
- "Ohio lawmakers mull sweeping reform to cut prison populations"
- An Ohio example of how the prison economy budget can mix up the usual political rhetoric
"The State of Sentencing 2010: Developments in Policy and Practice"
Today, 7.2 million men and women are under correctional supervision. Of this total, five million are monitored in the community on probation or parole and 2.3 million are incarcerated in prisons or jails. As a result the nation maintains the highest rate of incarceration in the world at 743 per 100,000 population.
The scale of the correctional population results from a mix of crime rates and legislative and administrative policies that vary by state. In recent years, lawmakers have struggled to find the resources to maintain state correctional systems; 46 states are facing budget deficits in the current fiscal year, a situation that is likely to continue, according to the National Governors Association. Many states are looking closely at ways to reduce correctional costs as they seek to address limited resources. States like Kansas, Michigan, New Jersey, and New York have successfully reduced their prison populations in recent years in an effort to control costs and effectively manage prison capacity. Overall, prison populations declined in 24 states during 2009, by 48,000 persons, or 0.7 percent.
During 2010, state legislatures in at least 23 states and the District of Columbia adopted 35 criminal justice policies that may contribute to reductions in the prison population and eliminate barriers to reentry while promoting effective approaches to public safety. This report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, drug policy, the prison census count, collateral consequences, and juvenile justice.
Wednesday, February 09, 2011
Top judge in Missouri again talking up sentencing reforms
As detailed in this local article, headlined "Missouri's chief justice renews call for alternative sentencing programs," the head of the judiciary in the Show Me State is still looking to be shown some sentencing reforms. Here is how the article starts:
Missouri's chief justice urged lawmakers today to find solutions to the state's prison overcrowding and to keep politics out of the selection of judges in his annual address to the Missouri Legislature. In repeating two themes from last year's similar speech, chief justice William Ray Price, Jr., said that the state continues to incarcerate too many people who instead belong in diversion programs to help them kick drug and alcohol habits.
"We continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity," Price told a joint meeting of the House and Senate. "The result is a state that is not as safe as we want it to be and a waste of tax dollars."
Price pointed to the staggering growth of Missouri's prison system to make his point. In 1982, the state had 5,953 prisoners and a budget of $55 million. In 2009, there were 30,432 prisoners and a budget of $665 million.
Price said in his speech that he, Gov. Jay Nixon, Speaker of the House Steve Tilley and Sen. Rob Mayer, the president pro tem of the Senate, have signed a letter seeking a federal grant to study alternatives to incarceration in Missouri.
Last year, Price's words spurred legislative action. Lawmakers worked hard on a plan to close one prison and divert prisoners to drug courts, though the effort ultimately failed. The Legislature did, however, add to DWI courts, in part a response to Price's speech and a Post-Dispatch series about the failure of DWI laws in the state. "This prison based strategy is not working and it is costing us an arm and a leg," Price said.
This year, though, the words seem destined to fall on deaf ears. Gov. Jay Nixon has already indicated he doesn't support an effort to close a prison. And a Senate committee studying judicial issues ignored the concept in meetings early in the session.
Tuesday, February 08, 2011
Two editorials urging new directions for incarceration nation
Today's New York Times and Columbus Dispatch both had editorial praising new state efforts to alter sentencing policy and prison practices. This Times piece, headlined "Expensive Prisons," starts this way:
In the last decade, crime rates and the prison population have declined significantly in New York State. Yet prison costs have soared. As part of Gov. Andrew Cuomo’s search for ways to cut spending, his new budget proposes two sensible steps toward the long overdue goal of closing down unnecessary prisons.
This Dispatch piece, headlined "Smarter Justice; Lawmakers tackle reform of Ohio's costly, inefficient criminal-justice system," starts this way:
Ohio's prisons are bursting at capacity with low-level offenders, draining dollars that could be better used to provide services for law-abiding citizens, so a bipartisan reform plan introduced last Tuesday in the Senate is a welcome start.
Thursday, January 27, 2011
Pennsylvania auditor urging state sentencing reform to reduce prison costs
A sure sign of the modern budget and sentencing times is this local story from Pennsylvania which reports on the state auditor urging criminal justice reforms. The piece is headlined "Wagner endorses GOP bill to lessen Pennsylvania prison costs," and here are excerpts:
Calling for an end to new prison construction, Auditor General Jack Wagner today urged the Legislature to approve a Senate Republican's bill making it easier to send non-violent offenders to alternative-sentencing programs.
Wagner, a Beechview Democrat, issued a "special report" outlining the 500 percent growth in Pennsylvania's prison population from 8,243 in 1980 to 51,487 in 2010. In 2009, Pennsylvania had the highest number of new inmates — 2,122 — of any state.
The cost per inmate nearly tripled from $11,477 in 1980 to $32,059 in 2009, Wagner said. The overall cost to taxpayers increased from $1.17 billion to $1.6 billion over the past decade, a 37 percent increase, he said. As the state faces a $4 billion to $5 billion budget deficit, it's imperative that lawmakers consider reductions in Department of Corrections spending, which historically has been "sacrosanct," Wagner said....
The state plans to spend $862 million for four new correctional institutes and four new housing centers, and the 4,000 additional beds are expected to be filled as soon as construction is completed, Wagner said. Wagner suggested a moratorium on new construction after these are built.
Gov. Tom Corbett, a Shaler Republican, is better equipped than any other governor over the past 30 years to address corrections issues as former state attorney general, former U.S. attorney and one-time head of the Pennsylvania Commission on Crime and Delinquency, Wagner said.
Tuesday, January 25, 2011
"Florida Senators Look to Texas for Prison System Cuts"
The title of this post is the headline of this interesting local article, which also carries the (somewhat amusing) sub-headline of "But money-saving programs could be too costly in tight budget year." Here is how piece starts:
Florida legislators were treated to a tutorial Monday in criminal justice, Texas-style. Not so much the death penalty Texas-style justice, but the money-saving, cost-reducing style of the criminal justice system that conservative Texas has become known for since instituting reforms in 2007.
“Texas has a notorious reputation. It’s a tough-on-crime state,” Texas Rep. Jerry Madden, R-Plano, told a joint meeting of the Senate Criminal Justice Committee and Criminal and Civil Justice Appropriations Subcommittee.
But that tough reputation now includes drug and alcohol treatment programs, less stringent penalties for parole and probation violations, and improved mental health care. The reforms stemmed from a desire to save money by reducing the need for more prisons and the political necessity of not appearing soft on crime.
“If your choice is not to build, your choice is either to let them out or to stop them coming in. Politically, you’re not going to open the door and let them out. The only option I had at that stage was how do I slow them down,” Madden told the senators.
Florida senators are wary of losing their tough-on-crime bonafides, but also of finding money for programs that will take three or four years to see budget savings, when the Legislature is facing a $3.62 billion deficit. “We have no money, this year, it’s worse than ever. We have no money now to do preventative programs,” said Sen. Evelyn Lynn, R-Ormond Beach.
But Madden said some reforms -- like initiating progressive sanctions for technical violations of probation (like being late or missing a meeting with a probation officer), and providing incentives for probation offices to keep felons in "the system" instead of sending them back to prison for a technical violation -- can be done with little or no immediate cost.
The Florida Department of Corrections currently has a budget of $2.4 billion and a prison population of 102,000. Business groups and tax-hawk advocates were on hand to applaud the efforts of Texas and Madden. Florida TaxWatch released a study last month recommending the adoption of many of the Texas reforms, which could save the state up to $4 billion.
Wednesday, January 19, 2011
Indiana prosecutors oppose state sentencing reform proposals
As detailed in this local article, which is headlined "Prosecutors group assails proposal to cut prison sentences," discussion of sentencing reform to cut prison terms and associated costs has prompted the usual suspects to speak out in opposition. Here are excerpts from this interesting article:
A group of county prosecutors has denounced a legislative proposal backed by Gov. Mitch Daniels to shorten sentences for many drug crimes. The prosecutors' position signals what could be a provocative debate in the Statehouse over whether the proposal is a responsible way to curtail prison costs or a soft-on-crime measure that might endanger the public.
The sentence reductions are part of a larger criminal justice overhaul backed by Daniels, Chief Justice Randall Shepard and two national think tanks. But one senator involved fears the debate over cutting sentences -- and the almost-certain accusations of being soft on crime -- could torpedo the entire reform package.
That debate has been quietly raging since mid-December. That's when the board of the Association of Indiana Prosecuting Attorneys voted to oppose the state Criminal Code Evaluation Commission's recommendations to shorten sentences for drug crimes such as possession and dealing of cocaine and methamphetamine.
"There are all kinds of proposals on the table that reduce and reassign sentencing levels," said the board's 2010 president, Shelby County Prosecutor Kent Apsley. "Some of them in my view are pretty extreme changes in the law and probably go too far. The question is: Where is the breaking point where you're saving money to the point that it may seriously impact public safety?"...
The prosecutors board's vote has no formal impact on the proposed legislation. Still, over the past several weeks, commission members have been trying to hash out a compromise with prosecutors. The sentence reductions are especially important because they create the savings that would pay for other reforms in the proposal....
The proposed reform package drafted by the Criminal Code Evaluation Commission would require offenders convicted of most felonies to spend the final six months to three years of their sentences outside prison in community monitoring programs...
The state also would reduce sentences for many drug crimes, downgrading possession of small amounts of cocaine or methamphetamine to a D felony from a C, and downgrading small-scale dealing of those drugs to a C felony from a B. (A D felony can result in a sentence of six months to three years, a C felony of two to eight years and a B felony of six to 20 years.)
The sentence reductions are the main sticking point for prosecutors, who are willing to accept many of the other proposed reforms, said Steve Johnson, director of the Indiana Prosecuting Attorneys Council, who served on the Criminal Code Evaluation Commission, along with the chief justice and the attorney general.... Lawmakers on the commission said conceding to prosecutors' demands could cause the whole plan to fall apart, because the proposal envisions using the money saved by reducing prison terms to strengthen community monitoring. Changes would include expanding drug abuse treatment services and concentrating more resources on monitoring higher-risk offenders.
Monday, December 20, 2010
"Think outside the prison walls"
The title of this post is the headline of this Indianapolis Star editorial endorsing proposals to restructure Indiana's sentencing system. Here are excerpts:
Gov. Mitch Daniels' endorsement of proposed corrections reforms should add needed momentum to legislative action that is long overdue.
The details will be devilish, of course, as the Indiana General Assembly sets about overhauling a penal code that's nearly four decades old. More than 100 laws have been passed in that span that have lengthened prison sentences, and not a one that has taken the other direction.
The result: Indiana's prison population has soared in this decade while those of neighboring states have grown only modestly. The same is true of costs, which are projected to reach $1 billion a year by 2017. This, in a state enduring serial revenue shortfalls....
Reduced and alternative sentencing for nonviolent offenders is the key recommendation in a detailed report from The Pew Center on the States and the Council of State Governments Justice Center.... The merits of alternatives to incarceration are manifest when it comes to reclaiming lives. Even if that were not enough to move lawmakers from their politically comfortable get-tough posture, the monetary cost of locking up nearly 30,000 Hoosiers ought to compel them to think and act beyond the walls.
This piece from another local paper, which is headlined "Panel recommends graduated sentencing for drug, theft crimes," provides more details on the reform proposals being discussed in Indiana. It also highlights that political rhetoric might still get in the way of needed policy reforms:
Gov. Mitch Daniels said he supports sentencing changes that save money and reduce prison population growth. But [state Rep. Linda] Lawson, deputy leader of House Democrats, said she's not sure the restructuring plan will be approved by the Republican-controlled General Assembly, even with the Republican governor's endorsement.
"I can see right now several legislators getting up on the House floor and holding direct-mail pieces and saying, 'See this right here; if you vote for this you're going to be soft on crime and they're going to do a piece of literature on you that's going to look just like this,'" Lawson said. "It just depends on how persuasive those legislators are.