Saturday, May 29, 2010

Talk is not cheap

Talk, talk, talk, talk, talk… That’s what 17 witnesses and 7 sentencing commissioners did Thursday at a hearing in D.C. on mandatory minimums. I was one of them. I’ve been talking about what’s wrong with mandatory minimums for 19 years. So have many of the others in the room. We have talked this issue to death. We all know that cookie-cutter mandatory minimum sentences deny justice and are bad policy made by reactionary legislators. And yet, we’re still talking about them, instead of killing them.

As I left the witness table a woman approached me to say that her two brothers have been convicted for a marijuana offense. They have been sitting in county jail for 16 months awaiting their sentencing and are looking at 20 years each. She had to collect herself so she didn’t completely breakdown while telling me her story. Of all the words spoken yesterday, hers were the only ones that really mattered. While the policy wonks are discussing the flaws of mandatory sentencing laws, people across the country are getting slammed by them. Talk is not cheap; it is costing decades of peoples’ lives.  It’s time to change these damn laws.

Julie Stewart

Friday, May 28, 2010

Who Said That?

In honor of Friday and the Memorial Day weekend, we'll end the week on a fun note with a game.  Who said the quote below:

"...equal justice depends on individualized justice, and smart law enforcement demands it.  Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant's conduct and criminal history and the circumstances relating to the commission of the offense ..."
Was it:

(a)  FAMM President Julie Stewart
(b)  U.S. Attorney General Eric Holder
(c)  Bozo the Clown
(d)  U.S. Supreme Court Justice Anthony M. Kennedy

The correct answer is:  (b)!  Believe it or not, these words came straight from Attorney General Eric Holder, who issued a new Department of Justice policy memo on May 19, 2010, regarding how federal prosecutors should charge cases and advocate at sentencing hearings.  Individualized charging and sentencing seems to be the order of the day, according to the memo.

Sentencing super-blogger Doug Berman has a full copy of the policy memo at this link.

And have a good Memorial Day weekend!

Thursday, May 27, 2010

Nerds Twitter, Too

Attention, Sentencing Nerds:  Now Tweeting live from the U.S. Sentencing Commission's hearing on mandatory minimums is FAMM's VP, Mary Price.

Follow the Twitter action at, and don't forget to follow FAMM's tweets 24/7, at

President Julie Stewart is up at 4:15 p.m. EST. 

Wednesday, May 26, 2010

Knowing Who = Knowing Why

A National Law Journal piece yesterday describes how the Obama administration is refusing to unveil the names of over 9,200 pardon and commutation applicants who got a big, fat “no” when they requested clemency from President George W. Bush.

The argument against releasing the names: pardon applicants don’t want the general public to know they have a criminal record. But for pardon and commutation applicants, the cat is already out of the bag. Anyone can find out about a person’s recent (or not so recent) stint at Leavenworth with a five-second search at the Bureau of Prisons’ website.

The argument for releasing the names: an open, transparent government, something Team Obama claims it wants. The Office of the Pardon Attorney, which handles clemency requests, will already tell anyone who asks if a specific person has been granted or denied clemency, they just won’t hand over the entire list of names of those who’ve been shot down over the years.

Which begs a question: Why not? What has the Office of the Pardon Attorney got to hide? 

Forking over the names of those who are denied clemency is just as valuable as revealing who was lucky enough to get it. What if the majority of people who were denied clemency were Black? Or Hispanic? What if deserving people were denied clemency, while less deserving people got it? What if politically unconnected people fill the ranks of the denied, while the list of clemency recipients is populated with the president’s friends? What if the Office of the Pardon Attorney's denials show that it isn’t doing a thorough enough job with cases, or that it's indiscriminately denying everyone? Releasing the names of those who’ve been denied second chances could shed light on whether the system is actually working or fair.

The public deserves to know who isn’t getting the gift of presidential forgiveness and what that says about why other people are.

-- Stowe

Sentencing Nerds Unite!

Tomorrow is a big day for sentencing nerds like us. The U.S. Sentencing Commission is holding an all-day public hearing on mandatory minimum sentences in federal law. I know, I know, it's like Christmas in May!

FAMM, DOJ, federal judges, and other advocacy groups will all be represented at the hearing. The goal for sentencing reformers is to make sure the Commission sticks to its guns and issues a new report (slated for release this October) that blasts mandatory minimums as hard as the Commission's 1991 report did.

If you are in DC tomorrow and have no plans (and no friends), drop by to watch the hearing at the Thurgood Marshall Federal Judicial Building at One Columbus Square, NE. Be there or be square - or, more likely, be both.


Monday, May 24, 2010

Court Rejects Prosecutors End Run Around Jury

Let's see if I understand the government's argument in the O'Brien case decided today...

If the government wants to lock someone up for 5 years for using a gun during a crime, they have to prove
the guy used a gun beyond a reasonable doubt. But if they want to lock up someone for 30 YEARS(!) for
using a machine gun and don't have strong enought evidence to prove it at trial, they only need to convince a judge at sentencing that the fellow used a machine gun "by a preponderance" of evidence (a much lower standard than "beyond a reasonable doubt.")

Talk about stacking the deck!  

Because the prosecutors' attempted end-around the jury was so contemptible, the Court's 9-0 rejection of it is well-deserved. Sentencing junkies can find the Court's full opinion here.


Stupid is as California Does

If people are still wondering why California's prisons are busting at the seams, they need look no further than the state's three-strikes-and-you're-out law, which voters passed in 1994. The idea of keeping repeat lawbreakers off the street is not on its face objectionable, but the law does not require that the third strike be a violent or even serious felony.

That omission in the law has led to some absurd results, including the infamous case where one sorry Californian received a 25-year-to-life sentence for stealing a piece of pepperoni pizza! (I hope it was a tasty slice.)

On Sunday, the New York Times Magazine published an eye-opening story about the California three-strikes law and the efforts of one Republican District Attorney to smooth its rough edges through careful enforcement. The whole story is worth reading, but I had to share two statistics that jumped out at me.

The first shows that a huge chunk of three strikers aren't the repeat murderers and rapists the people of California hoped to snag: 
About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.
In fact, California has more lifers doing time for nonviolent third strikes than the entire country has on death row for murder:

While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976. The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.

There's an old saying in politics: as California goes, so goes the nation. Fortunately, even among the states that have adopted California's three-strikes approach, none has a law as aggressive  - and stupid, and expensive - as the Golden State's.

Wednesday, May 19, 2010

Where's the Clemency, Mr. President?

According to clemency blogger extraordinaire P.S. Ruckman, President Obama’s gone more than 475 days without granting a single presidential pardon or commutation of sentence. 

484 days as of today, by our count.

To mourn President Obama’s neglect, we’ve created a “Clemency Counter” in the left column of this blog. As long as nothing is happening, we might as well keep track of how long it’s taking.

Of course, we’re just plain upset about the lack of clemencies from this administration. From the beginning, Team Obama has made good statements about changing discriminatory crack laws, focusing more resources on drug treatment, and making sure sentencing laws aren’t too rigid.

But how about some clemencies while we’re waiting for those good things to happen? While the clemency clock is ticking, prisoners who’ve turned their lives around are waiting for a second chance.

And boy, do they wait. We’ve heard horror stories about prisoners waiting anywhere from two to 8 years to get an answer from the Office of the Pardon Attorney, which handles clemency requests. That office has a small staff and gets thousands of applications a year. But no clemencies emerge. The problem can’t be a lack of horribly unjust sentences, because we keep hearing about new ones all the time.

If President Obama does decide he wants to let some deserving folks out of the slammer a few years early, he may have to do a little White House home improvement over at the Pardon Attorney’s office first.

Tuesday, May 18, 2010

Nevada's Shame: The Case of Michelle Taylor, Part I

You can expect us to blog quite a bit about the outrageous prosecution and sentencing of Michelle Taylor, a 34-year-old Nevadan woman, who was sentenced to life in prison for forcing a 13-year-old boy to touch her breast. FAMM's original press statement on the case is here. News stories about the case can be found here, here and here.

Please watch the video of Michelle Taylor's sentencing below. It runs nearly 9 minutes but it's well worth it.

Gainesville Sun Brings Light

We could just provide a link to the mandatory minimum editorial in today's Gainesville Sun, but we thought it deserved to be reprinted in all its blazing glory.

Editorial: The mandatory minimum crisis

While most of state government is shrinking, or at least not growing, Florida's prison system continues to grow by leaps and bounds. The tell-tale numbers are eye-catching.

In 1995, the entire state prison budget was $1.6 billion. This year, it is $2.4 billion.

In 1987, for every dollar spent on higher education in our state, 34 cents was spent on corrections. Today, that number is 66 cents.

There are more than 101,000 inmates locked up in Florida prisons — a 20 percent increase from just five years ago. And if the current rate of growth continues, state analysts predict the population will hit 115,000 within five years, requiring nine new prisons at a cost of $862 million.

It is against this fiscal background — and forecasts of a potential $5 billion state budget deficit next year — that has a growing number of policy and fiscal watchdogs urging Florida lawmakers to rethink and rescind many of the state's mandatory minimum sentence laws, which are among the harshest in the nation.

“It is time for us to rethink 30-year-old policies that may have served the state well in their time,” states a new report from the respected Collins Center for Public Policy, a Miami-based think tank established by the Legislature to advise it on public policy issues.

“But their time has passed. We know more now. Continuing to pour money into a bloated prison system in a time of fiscal austerity is not only unsustainable, it confounds common sense.”

Like the Collins Center, the conservative, business-backed Florida TaxWatch and the respected Pew Center on the States also have homed in on Florida's burgeoning prison population and budget, calling for reducing or eliminating mandatory minimum sentences for non-violent offenders and creating more sentencing alternatives like drug courts, among other reforms.

The groups recognize more people are serving longer sentences than anytime in history. More than 41,000 of Florida's inmates have no chance of parole in large part because of these laws, and one in 10 is serving a life sentence.

When the first mandatory minimum laws were passed in Florida in 1979, it was the height of Miami's cocaine wars.

The intent was to make an unmistakable statement to hard-core criminals. But over the years, too many nonviolent offenders have gotten snared by the inflexibility of mandatory sentencing laws, straining not only the public treasury, but the bounds of humanitarian justice.

The laws are so hard and fast that they have weakened the authority and discretion of judges, supplanting it to prosecutors, who decide whether an accused criminal will be charged with a mandatory minimum offense or not.

Study after study in state after state, meanwhile, has shown mandatory minimum sentences do not deter crime. Nor do parole and alternative sentencing programs lead to increases in crime.

It is time to rethink these archaic laws, and with the fiscal forecast Florida faces, no time is better than now.

Monday, May 17, 2010

It's a Good Day to Be a Juvenile

Once again, the Supreme Court has weighed in with a decision that reminds us that children are not adults and should be not be treated as such.

A 5-4 majority ruled today that a life without parole (LWOP) sentence violates the 8th Amendment of the Constitution when it is given to a juvenile who didn’t commit murder. The 8th Amendment, which bans the government from handing out “cruel and unusual” punishments, hasn’t had a whole lot of bite over the years, outside the death penalty context. Maybe the Court’s decision is a sign that times are changing.

The case is Graham v. Florida. You can read the Washington Post’s write-up on the decision here. And if you are feeling extra ambitious, you can read the Court’s opinion here.

Justice Kennedy Gets It

Once again, U.S. Supreme Court ustice Anthony Kennedy shows that he gets it. The Reagan appointee, who has spoken out eloquently against mandatory minimums in the past, took another whack last weekend. Here’s an excerpt from Newsmax's write-up:

Kennedy was asked if empathy can be “perfectly excised” from the judiciary.

"No. If lack of empathy means that you close your eyes to the consequences of the law’s decree, that’s just silly.”

Kennedy noted that the courts supervise the criminal system, and said that due to mandates largely from the legislative branch, jail sentences in America are eight times longer than in England and Western Europe for equivalent crimes. His home state of California, he said, has nearly 200,000 people in prison, at a cost of $32,500 a year for each inmate.

"Capital defendants in a single windowless, 12-by-8-foot cell for 20 years waiting for their sentence — you’re not supposed to know this when you’re a judge?

“So of course empathy has a role.”

When a questioner referred to comments Kennedy made in 2004 about America’s exploding prison population, the justice responded:

"If you were asked to design a penal system that would win the prize for the worst system, the one you’ve got would at least be runner-up.

“If cost is a way to activate human compassion, I’ll take it. We are squandering our resources and spending them in the wrong way.”

Kennedy said he approves of sentencing guidelines but is critical of mandatory minimums that are often imposed in drug cases.

Asked how he would define an activist court, Kennedy quipped: “An activist court is a court that makes a decision that you don’t like.”