Wednesday, November 10, 2010
Talk in Arizona about budgets and the need for sentencing changes
This AP story, which is headlined "Lawmakers say Arizona budget woes, prison costs could provide impetus for sentencing changes," suggests that at least one set of state legislators is talking frankly about sentencing reforms to deal with budget challenges. Here are highlights:
Arizona's budget troubles could prompt lawmakers to seriously consider changing criminal sentencing laws to reduce or slow the costly growth of the state's prison population, two legislators said Tuesday.
Rep. Bill Konopnicki, R-Safford, said many of his colleagues' fear of being labeled soft on crime has kept the Legislature from taking up the issue. "We cannot afford the current policies that we have, nor is there the will in the Legislature to change it," Konopnicki said.
But he and Rep. Cecil Ash, R-Mesa, said that could change in 2011 due to steady increases in prison costs as the state is trying to close big budget shortfalls. "Between policy and budget, we are headed to a major crash," said Konopnicki, who will leave the Legislature in January. "The financial crisis is going to cause some people to take a good look at what we're doing."...
The Department of Corrections' annual appropriation for the current fiscal year is $949 million, which is 11 percent of the current $8.5 billion budget and an amount larger than the projected shortfall of up $825 million.
Ash heads a House committee studying possible sentencing changes. "We have a lot of good ideas out there," Ash said. "I sense there's a will to do things differently."
Options identified by legislative budget analysts to cope with rising prison costs include expanding the prison system, diverting some offenders to treatment programs and probation, releasing some prisoners early and returning fewer parolees to prison for violations....
Though those two lawmakers each said they perceived the budget troubles created new impetus for consideration of sentencing changes, another Republican legislator recently said the options identified by the legislative budget analysts would receive scant consideration.
Thursday, October 28, 2010
Great new Vera Institute report on how states are trying to balance tight budget and public safety
I received via e-mail blast this afternoon this helpful heads-up about a helpful new report about state corrections practices:
A report released today by the Vera Institute of Justice’s Center on Sentencing and Corrections suggests that after decades of increases in corrections spending, states are trying something new. The Continuing Fiscal Crisis in Corrections: Setting a New Course is based on a two-part investigation that sought to gauge the current status of states’ corrections policies: Vera staff surveyed state officials about their planned corrections spending for fiscal year 2011 and reviewed states’ recent corrections-related legislative initiatives. The results show officials planning to spend less even as they initiate changes aimed at shoring up public safety.
According to the report, two factors are driving these developments. First, ongoing budget pressures are compelling officials to seek savings whenever safely possible. At the same time, states are drawing on decades of research and using identified policies and practices that can be counted on to yield positive results.
The Center on Sentencing and Corrections has also created an interactive online resource highlighting data from the new report. The page features a map and chart illustrating changes in individual states’ corrections appropriations from fiscal year 2010 to 2011, including funding sources.
Download the report.
View the interactive map and chart.
Monday, October 18, 2010
En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute
It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on. Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here). Here is how the majority opinion (per Judge Wesley) gets started:
Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.
In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.
In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).
A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.
Here is a key passage from the start of Judge Winter's dissent:
My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004). Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.
We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.
October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Thursday, October 14, 2010
New York gets a permanant commission to help with sentencing "mess"
As reported in this New York Daily News article, which is headlined "Blue-ribbon panel commissioned to examine New York's sentencing laws," the Empire State has a new sentencing institution. Here are the particulars:
A blue-ribbon panel headed by a Brooklyn judge and Manhattan's top prosecutor aims to clean up New York's "confounding" sentencing laws. "The present sentencing laws are a mess," Chief Judge Jonathan Lippman told the Daily News. "They're like a hodgepodge with no rhyme or reason."
Lippman has called on a group of high-powered judges, defense lawyers and crime victims to carry out what he said will be the most far-reaching analysis of state sentences in 40 years. Manhattan District Attorney Cyrus Vance Jr. and Brooklyn Supreme Court Justice Barry Kamins are in charge of the Permanent Sentencing Commission for New York State....
One of its missions is to find out whether sentences being meted by the state's judges serve as a useful deterrent to future crimes. "We don't know whether the offenders are prepared to live useful lives," Lippman said. "Are sentences too long or too short?"
"Four decades after most of our sentencing laws were passed, it's time for New York to focus on being smart on crime," Vance said. "This will mean longer sentences in some instances, while in others identifying appropriate cases for alternatives to incarceration," he said.
The panel also will look into whether alternative sentences can reduce the number of defendants sent off to state prisons.... Lippman said he hopes the panel will come up with a series of recommendations that can be presented to state lawmakers.
This press release reports on other members of the new commission.
Monday, October 11, 2010
"With more prisoners and no place to put them, Kansas faces hard choices"
The title of this post is the headline of this lengthy article from the Kansas City Star. Here is how it starts:
A few years ago, Kansas had figured out how to control its prison population. It had solved the equation and become a national model. No more. Kansas is officially out of beds for male prisoners, with a population last week of 8,411 — above the system’s capacity of 8,259.
In 10 years, the state is projected to be nearly 2,000 beds short. So Kansas corrections leaders have started talking seriously about two options: Either find millions of dollars to house more prisoners — at a time when the state is struggling to pay for schools and social services — or start letting them go.
Another option — crowding prisoners — would just lead to violence and lawsuits, prison officials say. Many states, including Mississippi, have already retreated from years of tough crime laws. Kansas experts are looking at the Mississippi solution of making nonviolent offenders eligible for parole after they have served 25 percent of their sentences.
Another possibility suggested by the Kansas Sentencing Commission is to increase “good time” credit for some inmates from 15 or 20 percent to up to 50 percent, meaning prisoners who stay out of trouble could be released after serving half of their sentences.
But early releases in either form would violate promises the state made to those who have suffered at the hands of criminals, said Wyandotte County District Attorney Jerome Gorman. “I don’t know how we can do that to the victims of the state of Kansas,” he said. Even nonviolent inmates such as drug addicts and burglars are mostly chronic criminals who will get out and cause trouble, he said, and the state is already failing to revoke parolees who should be put back in prison. “They entrusted a job to police, prosecutors and judges and now they’re saying we don’t care about the effort,” Gorman said.
Wyandotte County District Court Judge Ernest L. Johnson, chairman of the Sentencing Commission, agreed that early releases would be a step back from the state’s sentencing grid system meant to impose consistent and true prison time. “But what do you do when there isn’t enough money? You’ve got to change something,” he said.
Sunday, October 03, 2010
"It's time for Oregon to get smart on crime"
The title of this post is the headline on this lengthy and effective commentary authored by John Tapogna, who is president of an Oregon-based economic consulting firm and a former analyst for the U.S. Congressional Budget Office. Here are excerpts:
As the ballots hit our mailboxes this month, we'll discover a tempting offer. For $30 million a year when fully implemented, Measure 73 promises to lock up repeat sex offenders and repeat drunken drivers longer. Two groups who don't elicit, or deserve, any sympathy. Conventional wisdom suggests the measure will pass. Easily.
And if it does, we will have reaffirmed our conflicting preferences for low taxes and long prison sentences. Through voter-approved property tax limitations and kicker laws, Oregon's tax revenues as a share of the economy have declined. And they'll remain below levels of the late 1980s despite last year's income tax hikes. Meanwhile, we've approved mandatory minimum prison sentences for an expanding list of crimes. Measure 73 would add a few more.
Back in the 1990s when Oregon's economy was hot, we pulled off the trick of cutting taxes while also building prisons. But we're in different times. As federal stimulus fades and the economy sputters, the next governor will inherit a multibillion-dollar state budget shortfall that seemingly deepens with every revenue forecast. Successfully navigate that immediate challenge, and the rest of the decade delivers a projected 46 percent increase in elderly baby boomers who will drive up public spending on health care and pensions. And those well-educated boomers will take their degrees into retirement and leave a less-prepared work force in their wake.
This one-two punch -- a weak economic recovery followed by a demographic tsunami -- demands that government re-engineer every service it offers. The corrections system is no exception. We spent two decades getting tough on crime. Now it's time to get smart.
In recent years, numerous states have jumped ahead of Oregon, modernized their sentencing guidelines and dialed back prison spending. By doing so, they made space in their collapsing budgets for investments with stronger economic returns -- especially education. So will Oregon follow the lead of these innovative states?...
In 1989, the Legislature worked with judges, developed sentencing guidelines for convicted felons and agreed to increase corrections spending. The inmate population edged up in the early 1990s.
But the prison-building boom didn't really take off until voters approved Measure 11 in 1994. The citizens' initiative created mandatory minimum sentences for 16 crimes and, during the subsequent decade, the inmate population doubled from 6,000 to 12,000. Today it's at 14,000 and headed to 16,000 by 2020....
Incarceration will always be a critical tool in crime prevention, but it's an expensive one. And with the average cost per inmate at $82 daily, prisons have hit the law of diminishing returns. When voters passed Measure 11 in 1994, each $1 of prison spending yielded an average $2.78 in benefits -- prevented pain, suffering and losses associated with crime. But as we have cast prison's net wider, and caught less serious offenders in it, the benefits have declined to 91 cents for every dollar spent.
Long ago, we may have been so flush with cash that we could overlook negative returns on our public investments. But we're not flush anymore, and we won't be anytime soon. So now's the time to ask: How do we stay tough on crime in an era of scarcity?
And the answer is: Be more like Texas. Never accused of being softies, the 2007 Texas Legislature halted a half-billion-dollar prison construction effort and boosted investments in a cost-effective network of residential and community-based treatment and supervision programs. Rather than grow by a projected 17,000 inmates over the next five years, Texas' prison population has started to decline.
Texas is not the lone reformer. California and Illinois have designed performance rewards for counties that keep probationers out of prison. Mississippi and Nevada rolled back sentences for nonviolent offenders who successfully complete drug treatment and vocational training programs. And Hawaii has coupled random drug tests with short jail stays to reduce parole violations and prison sentences.
Innovation is spreading and -- for the first time in 38 years -- the inmate population in America's prisons fell in 2009. Twenty-six states registered declines. Oregon was not among them.
But there is hope.... With a goal of getting smarter on crime, Gov. Ted Kulongoski's recently convened Reset Cabinet investigated best practices across the United States, surveyed hundreds of judges and public safety experts, and developed a list of sentencing reforms. The report's recommendations were built on a philosophy that costly prison beds should be reserved for violent offenders and those convicted of person-to-person crimes. The report also suggested that Measure 11's mandatory minimum sentences should be targeted more narrowly to crimes involving death, serious physical injury or sexual contact with the victim. Implemented competently, the Reset blueprint would save hundreds of millions of dollars over the decade with no appreciable change in crime....
We're in the middle of a long, slow march out of tough economic times, and we can't afford missteps. If we can't muster the smarts and courage to slow spending on public investments that yield negative returns, this decade's outlook for education -- and our economy -- is bleak.
Tuesday, September 28, 2010
Effective new Vera report on decade of sentencing policy trends
The Vera Institute of Justice’s Center on Sentencing and Corrections has published this terrific new report titled "Criminal Justice Trends: Key Legislative Changes in Sentencing Policy, 2001-2010." The report reviews key developments in sentencing legislation over the past decade, and here is how Vera summarizes its coverage:
Since 2001, many state legislatures have changed their criminal sentencing policies, increasingly emphasizing approaches that are “smart on crime.” The three main areas of legislative reform involve redefining and reclassifying criminal offenses, strengthening alternatives to incarceration, and reducing prison terms. This report is a reference for legislators, their staff, and other policy makers who may be considering or implementing similar changes in sentencing statutes and policies.
Tuesday, September 21, 2010
Delaware editorial (strangely?) assails providing sentencing judges with punishment cost dataFollowing up the recent stories on Missouri's new sentencing innovations (background here and here), The News Journal (of Delaware) has this notable new editorial headlined "Judicial trends no place to solve fiscal dilemmas." Here are excerpts:
An advisory committee established by Missouri state lawmakers has voted to begin telling judges the costs of criminal sentences on the state budgets.
For example, a judge might now learn that a second-degree robbery incarceration could be less than $9,000 for five years of intensive probation, but more than $50,000 for prison sentence and parole, The New York Times reports....
But there are more credible efforts to reduce the cost of imprisonment without factoring in capital budgets as pre-sentencing evidence. Reducing sentences for nonviolent offenders tops the lists. Most states are overhauling 25 years of mandatory sentences laws that led to longer jail time for possession of crack, the rock form of the powder cocaine.
In Delaware, which has the nation's 11th-highest incarceration rate, Corrections Commissioner Carl Danberg urges state legislators to consider alternatives for nonviolent criminals. "It's significantly cheaper to supervise the person in the community," Danberg said.
Judicial trends should further the cause of justice and the rule of law, not solve fiscal dilemmas. Unfortunately, Missouri judges are being given the kind of truth-in-sentencing help that stretches the bounds of justice due to victims and defendants.
This editorial seems strange to me on a number of fronts. First, I am not even sure I understand the reference to "Judicial trends" that appears in the headline and penultimate sentence of this editorial. Second, it seems that the editorial favors "efforts to reduce the cost of imprisonment" such as reducing prisons sentences and "consider[ing] alternatives for nonviolent criminals." To the extent I understand the editorial's point, I suppose it is asserting that sentencing cost considerations should ONLY be for legislators' consideration and not for judicial consideration.
But I do not quite understand the suggestion that Missouri's decision to provide judges with cost data, along with other pertinent information at sentencing about (legislatively authorized) sentencing options and recidivism trends, in any way undermines "the cause of justice and the rule of law." In my view, neither justice nor the rule of law demands that sentencing judges operate blind to the practical costs and benefits of the various sentencing options that legislatures have made available to judges.
- Show-Me State now showing sentencing judges information about the costs of punishments
- "Should a Judge Consider the Cost of a Sentence?"
- Missouri's new practice of providing judges sentence cost information now fit to print
September 21, 2010 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, September 19, 2010
Missouri's new practice of providing judges sentence cost information now fit to print
Today's New York Times includes this effective article, headlined "Missouri Tells Judges Cost of Sentences," which spreads the news on the latest state sentencing innovation. Here is how the article starts:
When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.
For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.
Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.
The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.
But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime. “Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.
The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison. “There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”
Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation. “This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”
The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.
Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.
- Show-Me State now showing sentencing judges information about the costs of punishments
- "Should a Judge Consider the Cost of a Sentence?"
Thursday, September 16, 2010
"Should a Judge Consider the Cost of a Sentence?"The title of this post is the headline of this effective new piece at ABC News discussing Missouri's fascinating new sentencing tool providing "case-by-case invoices" of punishment costs to judges at the time they make sentencing decisions (details here). Here are excerpts from the ABC News piece:
When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.
The information is part of an offense summary culled from statistics kept by the state's Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend....
The program was unveiled last month by the Missouri Sentencing Advisory Commission (MOSAC) as a tool to help judges determine the best chances for reducing recidivism with cost-effective punishments.
A judge or lawyer is able to enter specific information on the MOSAC website, such as an offender's prior criminal history, the crime committed, his education and employment status. The computer then uses statistics from other actual sentences to process the information.
For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.
However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent. Missouri Supreme Court Judge Michael Wolff, chairman of the state's sentencing commission, said the new tool considers cost, but focuses on recidivism....
Judge Wolff asked, "Why not ask the question of how much this is going to cost?" But there are critics of the program.
Jennifer Joyce, the prosecuting attorney in the city of St. Louis, said, "It's ultimately cheaper to prosecute no one." She isn't opposed to the information being available for judges and taxpayers, or to the concept of alternative sentencing, but she is concerned that sentencing decisions will be made on an economic basis.
"Strictly speaking, economics is irrelevant to the decision that the judge makes, which is about public safety," she said. "If we are going to use economics as a basis to making these decisions, then we have to consider the economics of the victim and the community."
Judge Gary Oxenhandler, who sits on the 13th Judicial Circuit and has used the new tool, disagreed with her conclusion. He said cost is only one of many factors a judge should consider, including the threats to the community and the impact on the victim. "I want as much information as I can get," he said.
"Any place a judge can obtain information, that is an important source. The prosecution has its goals, the defense has its goals. Our job is to come up with the right amalgam that is going to best serve all these interests between protection of the public and punishment for the offender."
Helpfully, everyone can see an example of the data reports on recidivism and costs on the last two pages of the latest Smart Sentencing bulletin from the Missouri Sentencing Advisory Commission. I encourage everyone to check out the specifics of what Missouri is doing for its sentencing judges and to think about whether and how sentencing judges (and litigants) in all systems ought be get the benefits of all this helpful data.
September 16, 2010 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, September 14, 2010
Show-Me State now showing sentencing judges information about the costs of punishmentsThe St. Louis Post-Dispatch has this fascinating new article headlined "Missouri judges get penalty cost before sentencing." Here is how it begins:
Justice in Missouri now comes with a price tag.
It is the first state to provide judges with defendant-specific data on what particular sentences would cost the taxpayers, and on the likelihood that the person in the dock will reoffend.
Not everyone is happy about it. "I don't think it has any purpose in a process of balancing justice," complained Jack Banas, the St. Charles County prosecuting attorney. "Justice doesn't come down to dollars and cents. You have to look at the system as a whole picture."
But Kristy Ridings, a defense lawyer practicing in St. Louis, said: "I think it's fantastic. It gives us more argument to look at alternative sentences. There are resources in the community that are not only more effective, but cheaper."
Using information provided online, judges across the state can consider the cost of any sentence — from prison time to probation. The information may soon be included in formal presentence reports.
Experts say Missouri is the only state to distribute an invoice on a case-by-case basis. "We're seeing a trend where judges are asking for more evidence about best practices," said Greg Hurley, of the National Center for State Courts. "They are looking at an offender's track record and other predictive data that may show which treatments or programs may work best to cut down on recidivism." But no other state is injecting the cost of a particular sentence into the conversation, Hurley said.
Barbara Tombs, of the Washington, D.C., Sentencing Commission, said states commonly require corrections officials to draw up "economic impact statements" whenever they plan to change a penalty or create a new criminal violation. Such reports include added costs of prison beds, corrections officers and probation workers.
However, Tombs said, she has never before seen numbers broken down for an individual case and handed to a judge before sentencing. "I don't know of any state doing this except Missouri," she said. "I don't know enough about it to know whether it's a good idea or not."
The cost and recidivism statistics come from the Missouri Sentence Advisory Commission, an agency created by the Legislature to help judges find appropriate sentences. While some judges may choose to ignore the data, officials expect others to consider the price tags in finding alternative sentences that may cost less and provide better rehabilitation.
The commission began publishing the information in August, after several judges suggested it. Costs are figured by a formula. The state Department of Corrections was already calculating recidivism statistics compiled from hundreds of thousands of cases over the last decade.
Missouri Supreme Court Judge Michael Wolff, who leads the sentencing commission, said, "The court system should consider all data, including cost, when trying to decide the best way to use its resources for sentencing." He added, "If community-based alternatives show to be more successful and cost less, judges should consider them." Wolff noted: "Obviously, at the end of the day, it is up to the judge to decide the sentence. They are just more informed with this data."
Though I understand why Barbara Tombs might have reservations about this innovation before knowing all the details, I feel very strongly that Missouri is pioneering an important and valuable revolution in sentencing procedure. Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet, I think it is critical (especially in these lean budget times) to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options.
As regular readers know, I think one of the strongest arguments against harsh punishments is an economic one: incarceration is a costly way to try to improve public safety, and there are reasons to fear that, at least for some (many?) non-violent offenders, we may not generally be getting a good public safety bang for our prison bucks. In all areas of government, decision-makers should have their policy choices informed by sound data about the costs and benefits of various potential expenditures of state resources. We should want --- indeed, we probably should come to expect and demand as taxpayers --- that sentencing judges have sound economic cost/benefit data when making punishment choices.
Moreover, as long as all the cost data is available to all, advocates for the state and for the defendant will be able to help a sentencing judge consider different was to assess and incorporate available cost/benefit data into punishment decision-making. Subject to whatever statutory sentencing instructions exist in Missouri, prosecutors and defense attorneys will be able to develop arguments and advocacy the urge judges in individual cases to give lots or little weight to cost issues in light of each case's unique circumstances. In other words, in the sentencing context, we need not worry about "bean-counters" making consequential policy decisions without transparency or reasoned arguments about just when values and concerns other than just costs ought to be of greater concern than just dollars and cents.
In short, huzzah for Missouri and here is hoping other states follow suit.
September 14, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
Wednesday, August 18, 2010
ACLU of Ohio produces major report on prison growth and problems
As detailed in this article from the Columbus Dispatch, which is headlined "ACLU: Ohio prisons in crisis: Senators of both parties agree that system is costly, overcrowded," the ACLU has a new and timely report on Ohio's prison costs and problems. Here is how the Dispatch article gets started:
The American Civil Liberties Union and state Sens. Nina Turner, a Cleveland Democrat, and Bill Seitz, a Cincinnati Republican, are at odds on many issues. But the unlikely trio joined forces yesterday to pitch enactment of reforms to heal Ohio's "overcrowded, overused and underfunded" prison system.
"We are at a crisis in the state of Ohio," said James Hardiman, Ohio ACLU legal director, in releasing "Reform Cannot Wait," a report examining the cost and impact of prison incarceration and spending from 1991 to the present.
The report summarized the findings of other reports over nearly two decades and reached the same conclusions: Ohio sends far too many people to prison, spends an inordinate amount of money on adult and youth prisons, and has done little to reduce crime and recidivism....
Seitz said the state's 1996 "truth-in-sentencing" law failed miserably, largely because lawmakers added dozens of tough-on-crime sentence "enhancements" that increased the overall average time served instead of reducing it as intended. "We created layer after layer of additional sentences," he said.
Seitz is the sponsor of Senate Bill 22, which would funnel some low-level, nonviolent offenders to community treatment programs and give offenders time off their sentences for successfully participating in education and treatment programs behind bars. It would initially save about $13.7 million in operating costs, but it would help avoid billions in spending if it prevents the state from having to build new prisons because of severe overcrowding, he said.
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.