Monday, August 09, 2010
Is Ohio (and the common law) not tough enough on negligent vehicular homicide?The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month. The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:
Richard Crabtree was killed Feb. 1 in a car accident. He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.
The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.
"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.
Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington. The light turned red.
"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said. "You have the right to clear that, once everything's stopped. The other vehicle, for whatever reason, ran the red light."
The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.
Tirpak never accepted blame for the crash, Fridley said. He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him. "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.
Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license. A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.
In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine. Judge David P. Sunderman found him guilty in Delaware Municipal Court.
Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation. He also was fined $1,000, sentenced to community service and lost his driver's license for five years.
"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.
When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding. She could make peace with that. But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....
Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio. Ruffing would not speak about the Tirpak case in any detail. He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....
Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets. She can expect only $12,500 from his insurance company.
There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy). But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges. [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[
Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident. [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.] That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules. If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.
UPDATE: In response to helpful comments, I have tweaked the commentary in this post to be more accurate. Most of the tweaking appears in brackets above.
STILL MORE: I see that Scott Greenfield has an interesting new post here at Simple Justice discussing this case.
Monday, August 02, 2010
Massachusetts partially reforms its mandatory drug sentencing lawsAs detailed in this press release from Families Against Mandatory Minimums, over the weekend "Massachusetts lawmakers passed legislation that includes limited but promising reform of the state’s harsh mandatory drug sentencing laws." Here are the specifics:
Drug offenders who are serving mandatory minimum sentences at county Houses of Correction will have greater access to parole and at an earlier date. However, the bill that lawmakers voted on did not include two reforms previously endorsed by the Senate: allowing drug offenders in state prisons the same access to parole, and allowing all drug offenders to be eligible for work release programs. Under current state law, drug offenders serving mandatory minimum sentences are frequently barred from either parole eligibility or work release programs, even if such restrictions force them to leave prison without supervision or job skills....
The bill will allow drug offenders in county Houses of Correction to be eligible for parole after they serve one-half of their sentence (the same as other county prisoners who are eligible for parole), unless one or more “aggravating factors” apply: they used violence or guns when committing the drug offense, they directed the drug activities of others, or they sold drugs to minors or used minors in drug transactions. The bill applies to those who are currently incarcerated, as well as to those sentenced in the future.
Monday, July 26, 2010
Heading off to hear about how Ohio should reinvest in justiceI am about to head off-line for the day to attend a conference at which the Council of State Governments' Justice Center will present its first findings as part of Ohio's involvement in CSG's Justice Reinvestment project. This AP article, which is headlined "Ohio's probation system called costly, ineffective," previews what I am going to be hearing about through the day:
Ohio's probation system is a jumble of overlapping and fragmented agencies without common rules for improving the way the state treats offenders under supervision, according to a report to be released today.
The study also says that offenders who commit minor drug and property crimes are often supervised for years, while inmates who pose a high risk to public safety are released from prison without supervision.
The study by the Council of State Governments Justice Center also confirms something that Ohio officials have known for years: A large number of offenders cycle through prisons with sentences of just a few months each, placing a costly burden on an already-strapped agency.
One reason for the cycling is that the minimum sentence for lower-level felonies is six months in Ohio; it is one year in many other states. The Ohio study, to be unveiled at a daylong symposium, found that only four of every 10 inmates serving short sentences have a low risk of offending again. Two of every three are property-crime or drug offenders and have two or fewer prior convictions.
Sunday, July 11, 2010
Pennsylvania sentencing commission urging repeal of school zone mandatory sentencing provisionsAs detailed in this local article, the Pennsylvania Commission on Sentencing is"is recommending that legislators repeal the drug-free school zone mandatory sentences and let judges to determine the sentence based on already-existing guidelines that would include increased time." Here are more details:
The commission said mandatory sentences are used inconsistently across the state, said Mark Bergstrom, executive director of the commission. Some district attorneys invoke it every time. Others rarely use it, he said.
In addition, there's no required link between the drug deals and the school zone, Bergstrom said. The zone extends 1,000 feet from the edge of the school property, so it includes people living blocks away.
York County District Attorney Tom Kearney said his office determineswhether to invoke the mandatory sentence based on the facts of the case. It's a tool in his arsenal that he likes to have....
"I like the flexibility the legislation has provided to me," he said. "What we want to get are the bad guys." However, Kearney said he can understand the concern about the lack of consistency in the use of drug-free school zone mandatory sentences across the state....
In general, legislators will need to address mandatory minimum sentences for first-time, non-violent offenders because the state prison population keeps going up while crime has been decreasing, state Rep. Eugene DePasquale, D-West Manchester, said. However, he cautions against lessening any offense in a school zone because it puts children in danger....
Two local defense attorneys ... said the mandatory minimum drug-free school zone sentences can be unfair, and they hope the legislature will repeal it. "It just takes too much power away from the judge," defense attorney Richard Robinson said....
Defense attorney Christopher Ferro said he agrees that it takes the discretion out of a judge's hands to judge each defendant on the merits of the facts. It's an arbitrary distinction of where the school zone is, and it doesn't really take into account whether there were minors involved. "It's justice by tape measure, which makes no sense," he said.
One of the most unfair aspects is that the law disproportionately affects defendants in urban areas because of the number of school buildings. "It's almost impossible to go anywhere in York City, and you're not in a drug-free school zone," he said.
Thursday, June 24, 2010
Notable talk about possible sentencing reforms in PennsylvaniaThe Pittsburgh Post Gazette has this interesting new piece headlined "Lawmakers seek sentencing reform to cut prison population," discussing possible sentencing reforms in Pennsylvania. Here is how the piece starts:
Some Senate and House members want to enact new alternative sentences for non-violent convicts, saying they would decrease overcrowded state prisons and lighten the financial burden on the state. "Pennsylvania is still in the stone ages when you talk about prison reform," Rep. Kenyatta Johnson, D-Philadelphia, said. "The appetite for prison reform is now."
The reforms, which would require several new pieces of legislation, are backed by a bipartisan group of lawmakers, including Sen. Stewart Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, and Rep. Ronald Waters, D-Philadelphia.
Measures include having non-violent prisoners who are facing short, minimum sentences serve their time at community-based corrections centers instead of a state prison. Alternative incarceration programs would also be sought for lesser offenses, such as drug-related crimes and technical parole violations.
Mr. Greenleaf said nearly half of the state's prisoners are non-violent offenders. He said the state prison population has skyrocketed from about 8,000 in 1980 to more than 51,000 now. The state's prison population was temporarily reduced recently when 2,000 prisoners were sent to prisons in Virginia and Michigan, but the number continues to rise. "We've been tough on crime, but we haven't been smart on crime," Mr. Greenleaf said.
Pennsylvania spends more on corrections than 44 other states, according to Mr. Waters, who is sponsoring three bills aiming to reform sentencing. The state's Department of Corrections budget is now approaching $2 billion a year, more than 55 times what it was nearly 40 years ago, according to Mr. Waters' figures.
Mr. Greenleaf said if the prison population continues to increase at the current rate, Pennsylvania may have to build a new prison every year, at the cost of more than $200 million per prison. Three new prisons are already scheduled to be built by 2014, and they will be immediately filled if trends continue. They will be in Centre, Montgomery and Fayette counties.
Tuesday, June 22, 2010
"Drug sentencing: It's a balancing act between state versus federal guidelines"The title of this post is the headline of this effective new piece from the Richmond Times Dispatch, which is principally focused on how on how crack cases are processed in Virginia's federal courts. Here are some excerpts:
Among the weapons brought to bear against Richmond's record wave of violence in the 1990s were stiff federal laws targeting drug dealers and firearms violators. The bloodshed has subsided since 1994, when the city had 161 slayings and the highest per-capita homicide rate in the country. Last year's toll of 39 did not even lead the state.
Authorities say the decade-and-a-half effort has paid off. But according to recent figures from the U.S. Sentencing Commission and other studies, it has also left the Richmond area as a national leader in both federal crack cocaine and firearm prosecutions that lead to long prison sentences.
In the 15 months that began Jan. 1, 2009, 186 drug offenders -- most crack dealers and many with accompanying firearm convictions -- were sentenced in U.S. District Court in Richmond to a combined 2,000 years in prison plus one life sentence....
"There's no doubt to us that the city is fundamentally a safer place than it was a dozen years ago," said Neil H. MacBride, the U.S. attorney for the Eastern District. He points out that since 1994, the long-term homicide trend here is down....
Learned Barry, Richmond's deputy commonwealth's attorney in charge of homicide prosecutions, said, "What has happened, especially with the help of the feds, is we are catching these guys and they're staying off the streets much longer than they did 10 years ago. "When they identify these violent drug dealers and target them -- they're gone, we don't see them again for a long time," he said.
The degree to which drug and firearms convictions reduce violence is unclear, many criminologists say. Homicides dropped in Richmond, but they also did in some other cities where tough laws were used to a lesser extent. And while taking drug dealers off the streets improves the quality of life in a community, taking large numbers of young men out of the community can harm it.
Todd R. Clear, dean of the school of criminal justice at Rutgers University, has studied the impact on communities where young men churn in and out of jails and prisons. Removing killers and rapists has a high public safety payoff, but the benefits diminish as people are removed for lesser crimes, he said. "There all these sort of ripple effects [so] that even if you did get an immediate, short-term impact on crime, you also have long-term, generational, infrastructural kinds of effects on community life that are extremely troubling," Clear said.
Those effects include more single-parent households and the loss of protection, money and child care for mothers. Also, children with a parent or parents in prison are more likely to wind up there themselves, he said.
Then there's also the cost of imprisonment -- $51 million for just 15 month's worth of federal drug-related prosecutions from federal court in Richmond. "It just boggles my mind. What would happen if you had that money available for other things. If you told the community, 'Look, we've got $51 million . . . is this what you want to use it for? My guess is they would have other priorities," Clear said....
In 2007, the commission amended the crack guidelines, permitting sentence reductions for 19,500 crack offenders convicted since 1992. The Eastern District of Virginia led all districts in the country with 1,499 eligible offenders, or 7.2 percent of the national total. "That's because crack makes up such a large amount of the drug-trafficking docket in the Eastern District of Virginia, particularly in Richmond," said Michael Nachmanoff of Alexandria, the chief public defender for the district.
According to figures from the U.S. Attorney's office, of the 186 drug cases that led to prison time in the Richmond division last year and the first three months of this year, at least 113 were for crack and 36 for powder cocaine. The average sentence for crack violators was just under 11 years; 18 of them were sentenced to more than 20 years and one to life.
Nachmanoff, like Clear, believes, "the notion that the only way to solve problems . . . we see in the city of Richmond and other urban centers is by locking up generations of young African-Americans for 10, 15, 20 years, I think was really false."...
Generally, Virginia guideline sentences for drug offenses are significantly lower than federal ones. As a result, Richmond police work closely with federal authorities and sometimes steer troublemakers into federal court where they can be locked up for longer periods.
Capt. Roger Russell, head of the Richmond police department's narcotics unit, said, "We look at what court is going to offer the best solution to the problem." "The working relationship that we have, whether it be with our commonwealth attorney's office or with our federal partners, has really had a significant impact on violent crime in this city," Russell said.
Bullard said that some critics of drug sentencing have a simplistic view of the situation that does not take into account all the facts. "Usually there's more to the story than, 'Hey, a guy with no record is given five years for 5 grams of crack,'" Bullard said. There are violent criminals who have little or no record, he said.
Because state sentences are lower than federal ones, Bullard said his office has been innovative. Among other things, city prosecutors can bring evidence of prior crimes, even in cases where there has not been a conviction, to the court's attention prior to sentencing. "Our average sentence increased by over 50 percent during 2008 and that gain was largely maintained in 2009," Bullard said. "Again, our sentences are not nearly what the federal sentences are, but that's still a significant increase and it comes from that philosophy of trying to make sure violent drug dealers are taken off the street for longer periods of time," Bullard said.
City prosecutors last year won state convictions for felony drug distribution or possession with intent to distribute against almost 400 people -- a 10-year high. The sentences added up to 850 years.
City felony drug-possession cases -- as opposed to drug-distribution cases -- fell by more than 31 percent last year, to 463, from 2008 when an eight-year high was reached. New programs also are being tried as a way to eliminate open-air drug markets. Bullard said drug activities have horrid impacts on neighborhoods.
He said there may be low-level individuals hit with a heavy minimum crack sentence in federal court. But for the most part, he said state and federal authorities do not have the time, resources or prison space to target low-level offenders for long terms behind bars. Unlike federal law, Virginia law makes no distinction between crack or powder cocaine sentences.
Monday, June 21, 2010
Show me the role reversal when sentencing guidelines are more lenient
Anyone familiar with advocacy and debate surrounding federal sentencing knows that federal prosecutors are frequently extolling the virtue of sentencing guidelines and that defense attorenys are frequently excoriating the guidelines. Though the prosecutors claim they are fans of crime-based consistency and defenders claim they are eager for consideration of individual circumstances, what really seem to be driving the advocacy and debate is how relatively severe the sentences are set under the federal guidelines for most crimes.
Some new proof that debates over the virtues and vices of guidelines are really driven by views about sentence severity and leniency is emerging from the Show Me state these days. This local article, headlined "Missouri overhauling controversial sentencing guidelines," spotlights the role reversal in who is articulating which talking points about sentencing guidelines when the guidelines seem to be too lenient rather than too tough in most cases:
The Missouri Legislature requires the Missouri Sentencing Advisory Commission to figure averages of actual sentences every year for every possible crime, and from those to calculate ranges of "recommended sentences."
State Supreme Court Judge Michael Wolff, who heads the commission, has appointed a subcommittee to review the process. The results could be small tweaks to the 175-page sentencing guide or a complete overhaul. "The subcommittee can take a fresh look at it and make sure we're presenting information in the sentencing process that will be helpful for the judge," Wolff said.
For years, many Missouri prosecutors have called guidelines "meaningless" and "a waste of resources." They say the system is unfair because officials lump categories of crimes together, and some crimes are not charged often enough to make a meaningful calculation.
The guidelines do not take into account when a defendant is convicted of multiple crimes at the same time, critics say, and they never call for the maximum sentence allowed by law. "There is simply no way to provide for enough variables in any recommendations that make it meaningful in sentencing," said Zahnd, the Platte County prosecutor.
St. Louis Circuit Attorney Jennifer Joyce said she has been against the guidelines since getting elected more than a decade ago. "Each case needs to be evaluated on its own merits," she said. "There is no formula that is going to ensure that justice is done."
She offered the example of Tyran Hubbard, who pleaded guilty in 2007 in St. Louis Circuit Court of forcible rape and sodomy. He had raped and beaten a female college student at gunpoint in her apartment, was interrupted attempting a similar crime less than a week later and eventually was arrested lurking near apartments where many college students live. The guidelines recommended 12 years in prison. Judge Timothy J. Wilson gave Hubbard 30 years.
The guidelines do have supporters, who argue that the information empowers judges and sets realistic expectations for people not familiar with the judicial process. St. Louis Public Defender Mary Fox said that defense attorneys often highlight recommended sentences when advocating for their clients. "They're reasonable," Fox said. "They are a good starting point; then a judge has to take a look at each case individually." Fox said the guidelines took into account plenty of factors — including criminal history, education, age and employment.
Wolff, the Supreme Court judge, said data showed that 90 percent of Missouri sentences end up within the recommended range. He said only 5 percent of defendants were sent to prison when the guidelines recommended probation.
"This is just a piece of information about what judges are doing in the whole, not what ought to happen in any given cases," Wolff said. "We make it clear that the judge is free to give a more harsh or lenient sentence within the statutes." He added, "You can argue from any individual case that a recommendation seems too lenient."
James McConnell, the prosecutor in Shelby County, who will serve on the subcommittee, said the debate usually came over violent or sex crimes. He said there was not much disagreement about sentences for property crimes. Some lawmakers have proposed eliminating recommendations for the most serious crimes, McConnell said. "Those are the ones in which most of the time prosecutors don't think they make sense," he explained.
As federal sentencing fans know, it is the prosecutors in the federal system who generally argue that the federal guidelines provide a reasonable sentencing starting point, and it is the defense attorney who are heard to complain that no formula can ensure sentencing justice. But, in Missouri, since the starting points provided by the state advisory guidelines are more to the defense's liking, we instead get the roles reversed and the state defenders are defending guidelines against (over-stated) attacks by state prosecutors.
Saturday, June 12, 2010
Special JRP issue on "Sentencing and Corrections in the States"I am pleased to be able to report on and promote a the Special Issue on Sentencing and Corrections in the States that was just published by the Justice Research and Policy and it available via this link. Here is how this issue is summarized by the folks at JRP:
This special issue of JRP contains seven articles by leading researchers that examine sentencing and incarceration practices across the United States, with a focus on state issues and practices:
- A National Overview offer strategies for reducing the correctional population across the country as a whole.
- State Focus articles provide in-depth looks at corrections policies and practices in Florida, Pennsylvania, New York, Texas, and California.
- A final Commentary discusses the issues highlighted by these articles and offers insights into present and future U.S. sentencing and corrections practices.
Based on my own quick skim, it appears that every one of the seven articles in this special issue is a must read.
Tuesday, June 08, 2010
In Missouri, it is the prosecutors complaining about sentencing guidelinesThis local story from Missouri, which is headlined "Prosecutors seek changes to sentencing guidelines," reports on complaints about the state sentencing guidelines that are tellingly similar to complaints we hear about federal sentencing guidelines. But, as highlighted in this excerpt, the source of the usual complaint is tellingly distinct:
Some Missouri prosecutors remain unhappy with the way convicted criminals are sentenced, especially since the state began using sentencing guidelines in November 2005 that are based on actual sentencing practices of Missouri's trial judges.
"Prosecutors continue to be unhappy with the one-size-fits-all recommendations in the Missouri Sentencing Advisory Commission's recommendations," said Eric Zahnd, Platte County prosecutor and a member of the Missouri Association of Prosecuting Attorneys' legislative committee. "There is, simply, no way to include enough variables in a recommended sentencing structure to provide a meaningful recommendation for any individual crime."
The association on Monday issued a news release thanking Supreme Court Judge Michael A. Wolff, who chairs the Missouri Sentencing Advisory Commission (MOSAC), for appointing a subcommittee to review the recommended sentences. During MOSAC's May 25th meeting, Wolff said prosecutors, public defenders and judges should be represented on that subcommittee.
Zahnd said prosecutors hope it will consider a "motion by prosecutors to abolish the recommended sentences, at least for violent and sexual offenses." He said prosecutors particularly are unhappy with the "Sentencing Advisory Report," or SAR, that often is ordered by a judge before imposing a final sentence in a criminal case. The prosecutors association said those "recommended sentences ... are unreasonably lenient, particularly for violent and sex crimes."
As serious sentencing fans know, in the federal system it is the defense attorneys who often lament "one-size-fits-all" sentencing rules and who often claim that unique individual sentencing factors make any guideline system inherently problematic. It is telling and somewhat amusing to now hear these classic complaints about sentencing guidelines coming from prosecutors in Missouri.
Because I seriously doubt that all the state prosecutors in Missouri are former federal defenders, this story is really just an example of how sentencing advocates will often "shoot the messenger" of sentencing guidelines rather than just focus on their fundamental concern with the substance of sentencing rules they consider either too harsh (in the federal system) or too lenient (in Missouri's system). Just as I am glad that the federal defense bar has failed to eliminate all guidelines in the federal system, I hope the Missouri prosecutors fail to bring down that their state's seemingly successful (and fully advisory) guideline system.
Monday, June 07, 2010
Connecticut governor vetoes bill which would have created a state sentencing commissionThis local storyfrom Connecticut, which is headlined "Rell vetoes bill to create sentencing commission," reports on an interested sentencing development from the Nutmeg State. Here are the details:
Gov. M. Jodi Rell vetoed a bill today that would have created a new commission within the Office of Policy and Management to review state sentencing policies. The governor argued the legislature's Judiciary Committee already performs this function, and that the bill would have required an extra $130,000 in spending to provide salaries and benefits for commission staff.
"While I appreciate the need for review of our sentencing statutes and practices, given our state's ongoing economic challenges, this is simply the wrong time to create yet another state entity," Rell wrote in her veto message. "I have spent much of the last year examining our state budget to find ways to save money so that we would not have to increase the burden borne by our already struggling taxpayers. Some of the cuts we have made were painful. None were easy."
The bill passed overwhelmingly during the regular 2010 legislative session, which ended May 5, clearing the House unanimously and the Senate by a 34-1 margin. It would have created a 23-member Connecticut Sentencing Commission to review the existing criminal sentencing structure and any proposed changes to it. The panel would be funded, according to the bill, "within existing budgetary resources."
But the governor noted that the group would have to maintain a database and conduct trend analyses to identify areas of disparity, which would create new expenses. "I believe that the Judiciary Committee is the appropriate body to carry out these function, as they have done in the past," Rell added.
Sen. Andrew J, McDonald, D-Stamford, co-chairman of the Judiciary Committee, disagreed strongly though, arguing his panel has neither the staff nor the othe resources needed to conduct this research.
McDonald added the legislation not only enjoyed broad, bipartisan support in the legislature but had "universal backing" from the chief state's attorney's office, criminal defense lawyers and criminal justice advocates. "This legislation held the prospect of creating a more coherent and sustainable system for implementing fair and proportional sentences," he added. "We held a public hearing and nobody testified against it. And up until this veto, we've had no input from the governor's office."
The legislature is tentatively scheduled to meet in special session on June 21, and could attempt to override the governor's veto later this month. That would require a two-thirds' vote in both chambers. McDonald said he believes a veto override attempt would be appropriate, but he hasn't discussed that option yet with legislative leadership.
I tend to assume that a well-functioning state sentencing commission generally can and will produce criminal justice savings that help pay for its start-up costs. And this is the first time I have heard of a policy-maker using cost concerns to justify doing without a sentencing commission.
Consequently, I suspect there is more to this veto story than just an extra $130,000 in spending. Indeed, I feel pretty confident that a concern for dollars and cents is not what is driving Gov. Rell's veto given this news piece from last week, which reports that "Connecticut Comptroller Nancy Wyman says unexpectedly good job and tax revenue growth have swelled the 2010 state budget surplus to nearly $167 million." Seems to me that spending less than 0.1% of an unexpected state budget surplus is not too much to spend on a sentencing structure that could produce sentences that were more fair and proportional. But I am not the Governor of Connecticut, so I do not get to make that call.
Thursday, June 03, 2010
Big sentencing changes become law in South CarolinaAs detailed in ths local report, which is headlined "New law changes criminal sentencing," the Palmetto State has just completed an impressive bit of modern sentencing reform. Here are the basic details:
South Carolina has a new way of dealing with criminals that judges, victims' advocates, crime and justice experts and Republicans and Democrats all have signed off on. The comprehensive new law is intended to save money while diverting nonviolent offenders from prison to community-based programs so space is available in prison for violent criminals. Gov. Mark Sanford signed it into law Wednesday.
The new law was one year in the making. It is intended to:
- Make sure there is space for high-risk, violent offenders in prison while saving the state an estimated $350 million, the cost of building a new prison.
- Help inmates transition from prison life back to society and increase supervision of former inmates in the community.
- Provide incentives for probationers and parolees to stay drug- and crime-free in order to go from being tax burdens to taxpayers.
The lengthy new law also redefines 22 crimes as violent, providing longer sentences for some offenders.
Here are some details about why and how this reform came to happen:
Sanford said the law was "smart on crime," a sentiment echoed by many Wednesday. The governor said it strikes the right balance and it's good for the taxpayers. Experts from the Public Safety Performance Project of the Pew Center on the States helped the state develop the new law.
The prison population 25 years ago stood at about 9,000 inmates and is today at 24,000. As the population grew, so did the cost of running the Corrections Department. In the mid-1980s the prisons ran on $63 million a year. Today it costs $394 million, Sanford said. In another five years the cost is projected to increase by another $141 million, as the prison population grows by another 3,200 inmates.
"For the taxpayers, there is something fundamentally wrong with that system," Sanford said. "Unless we're going to build a bunch more jails, you have got to look at alternatives. This bill does that. I think it strikes the right balance and in the process saves the taxpayers over 400 million bucks." South Carolina already spends less than $40 per day on each inmate, the second-lowest rate in the nation, Sanford said.
Sen. Chip Campsen, R-Isle of Palms, called the legislation a massive undertaking. He was part of the group that spent the last year coming up with solutions to South Carolina's haphazard criminal justice system. "We really made a difference with this bill," Campsen said. "It is going to change people's lives. It will help offenders get back on their feet and make sure victims get compensated."
Notably, as documented by this editorial from The Economist headlined "Cutting time, cutting crime," this South Carolina reform effort is already garnering praise from various quarters:
Call it one of the tiny wisps of silver emanating from the immense cloud of municipal budget crises: South Carolina's Republican governor today signed off on a sentencing-reform law that passed the state's Republican-controlled legislature by a wide margin....
We rarely consider prisons and jails a service provided by the state, but of course they are: they are a service to law-abiding citizens, even though, unlike most other municipal services, the money is not spent directly on those whom it serves. And as cash-strapped states are cutting schools, libraries and other such services, it is only natural that they look to prisons. Arguing that a library with fewer books and shorter opening hours better serves its users, however, would be laughable; whereas in the case of prisons, putting fewer people in them and helping those who leave never return is precisely what we ought to be doing.
Monday, May 10, 2010
Will the continued drop in crime rates help Democrats deflect the usual "soft-on-crime" attack?This post's question about the usual crime, punishment and politics dialogue is inspired by this intriguing article in today's Washington Post, which is headlined "Drop in crime might be a boost for O'Malley." Here is how the piece starts:
Maryland Gov. Martin O'Malley is scheduled to announce Monday that the state recorded fewer violent crimes last year than at any point since 1979 and that the overall number of crimes dipped to an all-time low since Maryland police began uniformly reporting them more than 35 years ago.
By another key measure -- the likelihood that a resident will fall victim to murder, rape, robbery or violent assault -- Maryland is expected to drop out of the nation's 10 most dangerous states for the first time in more than two decades.
Maryland's improving public safety record stands out even amid a national phenomenon of falling crime rates, including a precipitous drop last year in the number of homicides across the greater Washington region.
The good news comes at an opportune time for O'Malley: at the outset of his reelection campaign. Over the coming months, O'Malley (D), who won the governor's mansion in part on a reputation as Baltimore's tough-on-crime mayor, is expected to reclaim the mantle of crime fighter.
But with crime rates falling fast nationwide, assessing how much credit O'Malley deserves for Maryland's record lows remains a tough task. Recent high-profile crimes, including the killing of an 11-year-old Eastern Shore girl in December that exposed major gaps in the state's supervision of sex predators and the slaying in February of a teacher at a state-run juvenile detention facility in Prince George's County, have provided entry points for O'Malley's challenger, former governor Robert L. Ehrlich Jr. (R), to question the state's progress.
During this year's General Assembly session, Ehrlich criticized O'Malley and the state's Democratic-controlled legislature for failing to more quickly tighten sex-offender rules. Last week, Ehrlich accused O'Malley and powerful Democrats opposed to capital punishment of "shenanigans" to circumvent the state's death penalty laws, effectively maintaining a de facto moratorium on executions for Maryland's five death-row inmates.
In an interview Saturday, O'Malley said he was looking forward to making the case that his administration's award-winning tactics aimed at cracking down on violent repeat offenders, tightening parole and probation standards, targeting at-risk youths and clearing the state's backlog of unanalyzed DNA samples have made Marylanders safer.
Recent related post:
- Notable (and justified?) attack by old Maryland governor on current governor concerning death penalty
Sunday, May 09, 2010
"Protecting the public while saving public money"The title of this post is the headline of this op-ed out of Missouri, which is authored by a county-level prosecuting attorney. Here are some notable excerpts:
It is a myth that prisons are full of first-time nonviolent criminals. Fewer than 7 percent of the inmates in Missouri prisons fall within the Department of Corrections’ definition of “first-time nonviolent offender.” That means 93 percent of Missouri’s 30,000 prisoners are violent or chronic felony offenders, according to the corrections department’s own narrow definition.
More importantly, the term “first-time nonviolent offender” includes people who clearly deserve to be in prison. The term does not mean the offender is incarcerated without good reason or, in some instances, does not pose a danger to the public.
For example, the department categorizes the following crimes as “nonviolent”: felony DWI offenders with four or more prior convictions; weapons charges; aggravated stalking; burglary while someone is at home; resisting arrest resulting in a risk of death; and escape involving the use of weapons.
Prosecutors recognize that the remaining offenders — far fewer than 2,000 inmates — may not normally pose a danger if released. However, the vast majority of these offenders have already received multiple chances on probation and failed repeatedly. Ultimately, judges must have the ability to incarcerate offenders — even nonviolent ones — if those people refuse to conform to the terms of court-ordered supervision.
Other inmates have committed a particularly aggravated nonviolent offense such as stealing hundreds of thousands of dollars or breaking into dozens of homes. It is true that 41 percent of these offenders re-offend when released. It is also true that judges correctly recognized these offenders’ likelihood of victimizing others when originally sentencing them to prison.
Prosecutors agree there are cost-efficient solutions to address true nonviolent offenders in a way that promotes recovery and rehabilitation rather than simply punishing people through incarceration. For example, drug and DWI courts can address the serious needs of addicts at one-third the cost of incarceration. Such programs can keep people out of the criminal justice system forever if they are motivated to be successful.
Friday, May 07, 2010
Notable variations in state approaches to juve sex offendersThis new AP story, which is headlined "States vary on dealing with youth sex offenders," provides an effective review of the diversity in how different states deal with juvenile sex offenders. Here are excerpts:
When Ricky Blackman was 16, he pleaded guilty to having sex with a 13-year-old girl, and an Iowa judge ordered him to register as a sex offender. But if Blackman had lived in at least a half-dozen other states, his name would never have appeared on a registry because states are deeply divided on how to deal with the nation's youngest sex offenders.
Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors. The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender registration laws.
"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."
Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.
In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.
In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.
Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.
Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.
Critics said young offenders will be more likely to reoffend because of the humiliation of being labeled a sex offender. "These kids can get better and here you are punishing them for life without offering any treatment. That to me is unethical," said Dr. Valerie Arnold, the interim chief of child and adolescent psychiatry at the University of Tennessee. "Even convicted murderers aren't put on a list like this."
It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles. "It's a difficult balance," said Ernie Allen of the National Center for Missing and Exploited Children. "We're in favor of the rehabilitative ideal and targeting treatment for the youngest offenders, but many of America's offenders are kids — and they are committing very serious sex offenses."...
Those who want juvenile sex offenders on registries acknowledge the requirements are not ideal, but they say the benefits to public safety far outweigh the impact on a juvenile sex offender's psyche.
Supporters often refer to the case of Amie Zyla, who was sexually assaulted when she was 8 years old in Wisconsin by a 14-year-old family friend. She became a leading advocate of juvenile registration requirements when her perpetrator was sentenced to 25 years in prison after pleading guilty to later fondling two teen boys. "The simple truth is that juvenile sex offenders turn into adult predators," she said at a 2005 Congressional hearing. "Kids all over the country need the same kind of protection as in Wisconsin."
Yet there is a wide disparity in how states treat juvenile offenders. In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.
In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."
The challenging question upon reflection is whether we ought to regard the state-by-state differences here as a healthy form of "laboratory of the states" federalism or instead as an unjust form of national sentencing disparity. Any thoughts dear readers on whether we should be pleased or troubled by the state diversity found regarding juve sex offender law and policy?
Thursday, April 22, 2010
"Sanford backs plan to put fewer non-violent offenders in prison"The title of this post is the headline of this new article concerning proposed prison reforms in South Carolina. Here are the particulars:
Gov. Mark Sanford formally threw his support behind a far-reaching sentencing reform bill Wednesday, a bill that supporters say will reduce the number of non-violent offenders in prison and save the state millions of dollars. "You can only squeeze so much blood from a turnip," Sanford said. "This really is a taxpayer issue."
The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.
It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.
And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.
"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...
Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago. Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years. He and several supporters talked about this bill being ruled by statistics rather than emotions. "Don't underestimate that first step in this state's history," he said.
Wednesday, April 21, 2010
Interesting report on long state sentence for child porn offense
At the same time I have been following closely the debates and controversies over long child porn offense sentence in the federal system, I have been wondering how (and how many) such cases are handled at the state level. On that front, I found interesting this local story from Florida headlined "Gibsonton man gets 55 years in child porn case." Here are the details:
A Gibsonton man arrested in a sting in which he thought he was going to have sex with a 12-year-old mentally challenged girl was sentenced today to 55 years in prison. Deputies found thousands of photographs and videos of child pornography on the computer of Carl M. Cocking, 37.
Prosecutors said it was the longest prison term ever handed down in Hillsborough County for downloading child porn. "Every time these images are made, a child has been raped, a child has been victimized and a child has lost its innocence," Hillsborough Circuit Judge Chet A. Tharpe said in imposing sentence. "It has to be stopped."
The sentence was the maximum Tharpe could mete out under a five-page plea bargain Cocking worked out with prosecutors. He was charged with using a computer to solicit child pornography, two counts of attempted lewd and lascivious battery, and 45 counts of possessing more than 10 images of child pornography.
Cocking faced 1,300 years under state law, but prosecutors said 55 years was the maximum sentence under state sentencing guidelines.
Prosecutors took the rare approach of showing some of the images to Tharpe before sentencing. Assistant State Attorney Rita Peters said it was the first time she had done so. The screen was placed so only Tharpe, the lawyers and a detective could see it. The images included the rape of a 2-year-old who cried for her mother during the attack.
"It is beyond my wildest dream that you would watch that and get sexual satisfaction," Tharpe told Cocking. "Thank God the detectives caught you before you acted out because you were going to act out." Tharpe remained visibly upset afterward....
Cocking's lawyers sought to lessen his sentence, saying he has been in constant outpatient therapy since being released on bail and that he didn't flee. Peters said she took the step of showing the images to Tharpe so he could understand the degree of Cocking's depravity. "He needed to be incarcerated," she said.
Wednesday, April 14, 2010
Prosecutors defend who gets sent to Arizona's prisonsThis interesting local article, which is headlined "Most state inmates committed violent crimes: Officials say state gets money worth for $1B corrections budget," reports on an notable effort by Arizona state prosecutors to defend their state's high prison population. Here are excerpts:
A new study of the Arizona prison population reports that nearly all inmates have had prior convictions or committed violent felonies.
The Arizona Prosecuting Attorney's Advisory Council commissioned the study, titled "Prisoners in Arizona: A Profile of the Inmate Population." "Who is it who's locked up?" Pima County Attorney Barbara LaWall asked at a March 30 news conference. "It's just who you'd expect."
Citing the 91-page analysis, LaWall said at least 94 percent of state inmates are repeat or violent offenders. The figure represents more than 38,000 of the estimated 40,500 people incarcerated in state and private prisons.
Figures from the study show that 52 percent of inmates, some 21,200 prisoners, have been convicted of violent offenses. The study also notes that as much as 83 percent, or 33,896 of convicts, have one or more felony convictions on their records.
Law enforcement officials say the study proves that only the most violent or problem criminals fill state prisons. "A very small minority of folks can be classified as non-violent or fist-time offenders," LaWall said.
The study, as well as comments by LaWall and study author Daryl R. Fischer, may be directed at critics of the state's mandatory minimum sentencing laws. Such laws lay out sentencing guidelines for numerous crimes, including drug offenses and drunk driving. "The myth that we're filling our prisons with first-time drug offenders is not true," Fischer commented at the news conference.
A mathematician and longtime research manager with the Arizona Department of Corrections, Fischer wrote the study for the Arizona Prosecuting Attorney's Advisory Council, which paid about $24,000 for it. Fischer retired from the department of corrections in 2007....
According to the "Prisoners in Arizona" study, the state locks up about 567 people in 100,000. Only Alabama, Louisiana, Mississippi, Oklahoma and Texas incarcerate people at a greater rate.
The study also note the state now spends about $1 billion per year on its corrections department. "The state is getting its money worth for every tax dollar it spends on the prison system," Fischer said. He noted that while crime has fallen by 42 percent since 1995, the prison population has risen by 18 percent.
The report discussed in this article, "Prisoners in Arizona: A Profile of the Inmate Population," is available at this link. The report include a lot of interesting data, and that data might readily be "spun" in any number of ways.
For example, the report asserts in its final numerical summary that "94.2% of inmates are violent or repeat offenders" and further asserts that, even among thousands of non-violent first offender, "97.2% exhibit factors either predisposing the present incarceration or weighing against early release." These data certainly suggest that the vast majority of Arizona prisoners have a good reason to be in prison. But they also suggest that there are still dozens (and perhaps hundreds) of non-violent first offenders behind bars in Arizona who have factors that neither predispose the present incarceration nor weigh against early release. Now that this report helps identify who these non-violent first offenders may be, I wonder if these unnecessarily incarcerated persons will be able to get released early.
Sunday, April 04, 2010
Georgia not (yet) considering prison reduction to cut costsThis effective piece from the Atlanta Journal-Constitution, which is headlined "Georgia prison population, costs on rise," suggests that Georgia may soon have start considering it prison populations as it tries to deal with budget deficits. Here are excerpts:
As Georgia lawmakers desperately search for ways to slash spending, they are not debating an option taken by other states: cutting the prison population. Georgia operates the fifth-largest prison system in the nation, at a cost of $1 billion a year. The job of overseeing 60,000 inmates and 150,000 felons on probation consumes 1 of every 17 state dollars.
The state’s prison population has jumped by more than a quarter in the past decade and officials expect the number of state inmates to continue to creep upward. Georgia has resorted to measures other than reducing the prison population to keep corrections spending under control....
Georgia prisoners are serving longer sentences due to tough-on-crime laws adopted in the 1990s. Those laws ban early release through parole for many offenders. A wave of convictions related to illegal methamphetamine also pushed up prison admissions in recent years.
Enough states are experimenting with keeping fewer offenders behind bars that the total number of state prisoners held nationwide declined this year for the first time in nearly four decades, according to a new report by the Pew Center on the States. The Pew study found that prison populations dropped in half the states. Georgia was among the states that posted an increase.
Budget problems played a role in the prison population reductions elsewhere. But so did a sense among some policy makers that continuing to put greater numbers of offenders behind bars for longer sentences would not be effective at reducing crime, especially for some non-violent offenders and those incarcerated on drug charges....
States working to cut prison populations are relying on new research that helps them identify which offenders are likely to do well outside of prison and which programs work best to discourage recidivism....
Cutting Georgia’s prison population hasn’t been debated this year, even as legislators have considered drastic cuts in education, health care programs and the judiciary. Given the state’s finances, some influential voices say it is time to begin a conversation about prison spending.
State Rep. Chuck Martin (R-Alpharetta), who leads a subcommittee that oversees public safety spending, said it makes sense for the Legislature to study alternatives. Martin said sentencing some low-risk offenders to house arrest at night, while requiring them to work during the day, could be more effective than placing them behind bars for a year with hardened criminals.
Such an approach could conserve resources to keep dangerous offenders locked up, he said, while also steering low-level offenders into more productive lives. “If they are non-violent and do not pose a risk to the community or themselves,” Martin said, “let’s find a way to punish them and make them continue to work and pay restitution and support their family.”
Newt Gingrich, the former Georgia Republican congressman who served as Speaker of the House from 1995 to 1999, wrote recently in The Atlanta Journal-Constitution that “Georgia simply can’t afford for the corrections system to maintain the status quo.” Gingrich argued that recidivism rates are unacceptably high and that churches and non-profits need to offer more resources and support to help offenders who are released from prison build productive lives in the community.
“Celebrating taking criminals off the street with little thought to their imminent return to society is foolhardy,” Gingrich wrote in the article, which was co-authored by Mark Earley, a former attorney general of Virginia.
Friday, March 26, 2010
Significant sentencing reform moving forward in South CarolinaAs detailed in this local story, which is headlined "Sentencing reform passes: Bill tries to free up room for the dangerous," significant proposed changes to South Carolina's sentencing laws seem to be close to becoming a reality. Here are the details:
A bill designed to reduce the number of people going to jail in South Carolina for minor offenses and let more people out on parole received key approval Thursday.
The bill approved by the Senate is expected to save taxpayers money while providing improved oversight and training of nonviolent offenders. Proponents said it will ensure there's prison space for high-risk, violent criminals and that they'll serve longer prison terms. "This is a balanced bill that is tough on crime while providing alternative sentencing for those who deserve it," said Sen. Gerald Malloy, D-Hartsville, chairman of a commission that spent more than a year reviewing sentencing policies.
People convicted of nonviolent crimes account for nearly half of the state's 25,000 inmates, and nearly one in five inmates are imprisoned for drug crimes, according to the commission's February report.
Malloy, an attorney, said the bipartisan bill reforms a hodgepodge of laws enacted in recent decades, often as knee-jerk reactions to a particular local crime. Inmates are most commonly in prison on drug charges, burglary, check fraud and driving under suspension, in that order, he said. Providing education and supervision, rather than just throwing low-level offenders in prison, can "turn them from being a tax burden to a taxpayer," Malloy said.
Legislators have embraced the long-overdue changes largely because of the state's budget crunch, he said, noting that incarcerating someone costs $14,500 a year, compared to roughly $2,000 for supervised probation.
The state Corrections Department has been allowed to run a deficit for three consecutive years, as officials balked at the idea of releasing inmates early to make up for budget cuts. South Carolina's inmate population and its cost to taxpayers have soared since 1983, from less than 9,200 costing the state $64 million, to 25,000 costing $394 million. If trends continue, there will be 3,200 more inmates in five years, costing an extra $141 million to house and feed them, and several hundred million more for construction of new prisons, the report said.
Thursday, March 25, 2010
Interesting sentencing enhancement case from Washington state
Thanks to How Appealing, here is a little report on an interesting split state Supreme Court sentencing ruling today:
Should someone who is arrested for drunk driving, then taken immediately to jail, where a search reveals a small bag of methamphetamine taped to his sock, be subject to a sentencing enhancement for possessing a controlled substance in a jail or prison? By a vote of 5-4, the Washington State Supreme Court answered "no" in a ruling issued today. The ruling consists of a majority opinion and a dissenting opinion.