Old McDonald Had Some Guns...

Two days after the U.S. Supreme Court handed down its Second Amendment decision in McDonald v. Chicago, the world is buzzing with questions about what it will mean for states with (and without) gun control regulations and laws.

And yesterday, I got my first question from a federal prisoner who was trying to clarify the news as it made its way through the prison rumor mill: “Does this mean all of us gun offenders are getting out?”

Nope. McDonald holds that Americans have a right to possess guns, at least to defend ourselves in our own homes. Justice Samuel Alito, who penned the opinion, specifically said that bans on felons possessing and using guns are still okay.

But there are lots of gray areas -- especially for people without criminal records. What about possessing machine guns? Does my right to keep and bear arms include my M16?  What about conceal carry laws? Does McDonald allow me to leave the M16 at home and pack my .38 Special in my purse when I’m running errands around town?

The answers to these questions matter, because running afoul of some gun regulation laws can land people in court and even in jail – even if the person isn’t a felon. Not all gun laws are aimed at felons who possess or use weapons. Some are designed to stop all people from having certain kinds of ammunition, for example, or to ensure that all guns are bought with a permit or registered. Failure to follow these rules and regs can sometimes lead to fines or even jail time.

While McDonald may not mean that gun offenders get out of prison, it could, depending on how it’s interpreted, mean that in the future some people don’t go there for violating gun laws. Whether that’s how McDonald actually plays out is anyone’s guess.

Doug Berman’s blog has some excellent posts on this topic here and here. 

-- Stowe

Hoosiers May Wisen Up on Sentencing

This article details how Indiana is joining the list of states feeling the financial crunch and deciding to take a long, hard look at their sentencing policies:

Gov. Mitch Daniels on Monday announced a partnership among Indiana, the Pew Center on the States, and the Council of State Governments' Justice Center to examine the state's sentencing laws, recidivism rates and incarceration practices with the aim of saving money.

"Having more dangerous and repeat-offending criminals in prison is the best way to protect Hoosiers, but if our current laws and practices result in nondangerous offenders taking up space at high cost to taxpayers, there may be better ways to manage that," Daniels said.

Since the last sentencing review in 1976, Indiana's prison population has increased from about 7,500 adults to nearly 29,000 today. While the average sentence for an Indiana prisoner is approximately 19 years, last year 4,583 offenders were sentenced to fewer than 90 days in the Department of Correction, with 1,361 serving fewer than 30 days.

Constantly moving people through the prison system for short sentences costs a lot of money, said Adam Gelb, project director for the Pew Center. The state spends about $700 million a year on prisons.

"The fundamental premise here is that prisons are a government spending program. And just like any government spending program, be it education or health care, it needs to be put to the cost-benefit test," Gelb said. "Are we getting the best return possible on our public safety dollars?"

Sounds like they're asking the right questions.  Indiana has made changes to its mandatory minimum sentences before.  In 2001, Indiana legislators eliminated the state’s mandatory 20-year prison sentence for drug offenders arrested with three grams or more of cocaine, giving courts authority to sentence drug offenders who sell drugs to support their drug dependency to treatment instead of prison.  Indiana also put an exception in its “three strikes” law for habitual substance abusers. 
 
Mandatory minimums are the ultimate cash cows of any sentencing system.  If Indiana really wants to save money fast, these laws should be at the top of its list for reform.

Barring Unjust Guidelines

Former Congressman Bob Barr is the latest in a parade of luminaries to chime in  on the case of Sholom Rubashkin, an Iowa meatpacking plant owner convicted of fraud. Whatever you think of or even know about Rubashkin and his convictions, Bob Barr insists that the way Rubashkin and others get sentenced in federal courts “ought to worry everyone.” Barr’s top complaints:

• The federal sentencing guidelines tell judges to up sentences for crimes the defendant was found “not guilty” of or for charges the government actually dropped. This happened to Rubashkin, whose sentence was increased based on crimes he never had a chance to contest in federal court, including those he was acquitted of in state court.

• “Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him to increase his sentence.” This happened to Rubashkin.

• The guidelines use calculations of actual or intended “loss” in fraud cases to increase sentences. The government can distort the loss calculation by, for example, preventing a defendant from disposing of assets (e.g., selling property in a bankruptcy sale). According to Barr, this happened to Rubashkin. The government wouldn’t let Rubashkin sell his company to the highest bidders, who were prepared to pay more for the company than the government ultimately approved.

Under the guidelines, Rubashkin, a first-time, non-violent, 51-year-old offender was facing a life sentence. Even the government shook its head at that one and recommended a “mere” 25 years. This was after a veritable Who’s Who of former U.S. government officials, including Edwin Meese III, Richard Thornburgh, and Seth Waxman, wrote to the sentencing judge in Rubashkin’s case to encourage her to put aside the calculated guideline sentence. One of their concerns was that the white collar guidelines “lack any common sentencing wisdom.”

Barr is right that the guidelines' “complex and, in many respects, arbitrary calculations” can result in sentences that are absurd and unfair. While the guidelines are advisory, they nonetheless exert a compelling gravitational pull at sentencing. The U.S. Sentencing Commission is preparing to meet and set priorities for amending the guidelines in 2011. We hope the Commissioners will respond to Barr’s challenge that the financial crimes guidelines system “cries out for reform.”

-- Mary Price, Vice President and General Counsel, FAMM

“You either pay now, or pay later—and you pay a lot more later.”

So says Texas State Senator John Whitmire about the cost-effectiveness of treating drug addicts in prison in this compelling article in Newsweek magazine. The article discusses an issue we've blogged about before here on SentenceSpeak:  drug treatment programs reduce recidivism, which saves states money down the road, but cash-strapped states are cutting these programs to save money today.

We recognize that the bad economy is wreaking havoc on state budgets, but we hope state lawmakers can find cuts elsewhere. They will be save not only money, but lives, families, and communities.

Thanks to Doug Berman for flagging the Newsweek article.

Almost Too Cruel to Believe

14 years in jail...a few hours of freedom...and then back to prison because of a clerical error. If this story doesn't make you angry, you should have your pulse checked.

The real outrage isn’t the prison’s mistake -- ironically, it allowed the system to work in an effective manner. The real outrage is the fact that this mandatory minimum system exists at all.  In Massachusetts, a mandatory minimum means no earned good conduct credits, no parole, no pre-release programming -- no nothin’ -- until the full mandatory minimum term is served. How does that protect Massachusetts or help keep corrections costs within reason?

Getting On the Reform Bandwagon

This piece from The Crime Report shows how states are getting on the bandwagon of reforming mandatory minimum sentencing laws:

States are increasingly willing to repeal mandatory minimum sentences for drug offenses, Peggy McGarry of the Vera Institute  of Justice told a meeting of judges, state legislators, and corrections officials from nine states to discuss sentencing and prison policies in a time of budget cutbacks. The session, in Annapolis, Md., was organized by the National Governors Association Center for Best Practices in conjunction with the National Conference of State Legislatures, the National Center for State Courts, and the Pew Center on the States. McGarry mentioned eight states that have reduced or eliminated mandatory minimums since 2001.

Among other reforms cited by McGarry are states, including Alabama, Colorado, Maryland, New Hampshire, and Vermont, that have required parole, probation, and other community corrections agencies to use risks and needs assessments for offenders and individualized case management for treatment and other services.  The conference also heard from pollster Bill McInturff of Public Opinion Strategies, who is studying public opinion on corrections issues. Research so far shows public support for releasing more low-risk, non-violent prisoners if there are mechanisms to hold them accountable, McInturff said. States with delegations at the meeting, which concludes today, are Alaska, Arkansas, Georgia, Indiana, Iowa, Kentucky, Louisiana, Ohio, and Oklahoma.

Another (Horrifying) Cost of Incarceration

Prison rape is hardly a light topic for a Friday, but it's in the news today.

Last year, the Prison Rape Elimination Commission issued a report and gave the Justice Department one year to issue standards for reducing rape and sexual assault in prisons. That June 23, 2010, deadline has now come and gone. We may see standards by the end of the year.  Today's Washington Post editorial puts some heat on Attorney General Eric Holder and the Department of Justice for the delay:

The Justice Department has unnecessarily replicated some of the commission's work and lost its sense of urgency. It has forgotten that the presence of sexual violence indicates that a facility lacks basic controls. It has closed its eyes to the obligation to ensure that sexual violence is never tolerated as a collateral consequence of incarceration. It has shut out the fact that those raped in prison are likely one day to be released and asked to rejoin civil society -- a task made that much more difficult by the savagery experienced behind bars. It has, in short, abdicated its responsibility to lead.

The DOJ's defense of the delay is here.  The Hill covers the delay here.

Not to get philosophical with you on a Friday, but this issue goes to the heart of the question, "How much is the state allowed to take?"  It can punish, and it can imprison.  And in many cases, it should do both.  But I keep hearing a common refrain among everyday Americans that is downright disturbing.  It's not enough just to "lock 'em up and throw away the key."  It's also, "We don't care what happens to them when they go in there. They did it to themselves by committing the crime.  They deserve whatever they've got coming to them."  (Don't believe me?  Read some of the comments on the editorial.)

But, as the Post notes, we care what happens to prisoners when they get out and come back to our neighborhoods. Going to prison can be traumatic enough without adding rape to the stay behind bars. And coming home from prison is difficult enough without having to cope with the trauma of an assault.

According to a 2007 Bureau of Justice Statistics survey, an estimated 60,500 inmates (4.5 percent of all Federal and State inmates) each year experience one or more incidents of sexual victimization involving other inmates or staff. And experts think official records of assaults in prison (both physical and sexual) only reflect 10 to 20 percent of all assaults that actually occur there.

Opposing rape in prisons doesn't make you a bleeding heart liberal. Justice Fellowship is the advocacy arm of the faith-based group Prison Fellowship -- hardly a bastion of liberalism -- and has been taking a lead on eliminating prison rape for years. Justice Fellowship's argument is as simple as it is powerful:  prisoners are human beings entitled to dignity and safety. Getting raped shouldn't be part of a prison sentence.  

--Stowe

Get with it, Feds!

The Bureau of Justice Statistics just released some new data on the number of people locked up in America.  Some good news, some bad news:

At yearend 2009, state and federal correctional authorities had jurisdiction over 1,613,656 prisoners, an increase of 0.2% (3,897 prisoners) from yearend 2008 ... This was the smallest annual increase in the current decade and continued the trend of slower growth observed in the prison population since 2006.

The number of prisoners under state jurisdiction declined by 2,941 prisoners (0.2%), the only decrease in the state prison population between 2000 and 2009; the federal prison population increased by 6,838 prisoners (3.4%) and accounted for all of the increase in the U.S. prison population.

Why am I not surprised?  States, who have to stay in the black, are starting to make hard choices between paying for prisoners or doing other worthwhile things with taxpayer dollars (like having a balanced budget).  The Feds don't have the balanced budget concerns that the states do (that national deficit isn't getting any smaller) and apparently think that an additional 6,838 prisoners are worth the extra debt.  Keeping those extra federal prisoners locked up will cost more than $177 million -- and that's just for year one of their sentences!

While 24 states cut their prison populations in 2009, 26 others increased the number of people in their prisons.  For those who follow criminal justice, the winning and losing states shouldn't be that surprising:

Twenty-four states reported decreases in their prison population during 2009, with a combined total decrease of 15,223 state prisoners... About three-fourths (71.7%) of this decrease resulted from declines reported in six states reporting decreases of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069).

Offsetting the total decrease of 15,223 state prisoners was a total increase of 12,282 prisoners in the remaining 26 states. Five of these states reported increases of more than 1,000 prisoners and accounted for more than half (60.7%) of the total increase: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282), and Arizona (up 1,038).

New York reformed its Rockefeller drug mandatory minimums last year; Texas has been getting smart on crime and diverting drug offenders left and right.  Those moves appear to be paying off -- literally.

What'll it take to get the federal government to follow suit?

--Stowe

And Just When We Are Feeling Down About the U.S. Justice System...

...we are reminded that our system's failings are relative.

From the AP:

Saudi convicts 15 men, women for mingling at party

By ABDULLAH AL-SHIHRI (AP) – 1 day ago

RIYADH — Judicial officials say a Saudi court has convicted four women and 11 men for mingling at a party and sentenced them to flogging and prison terms.

The men, who are between 30 and 40 years old, and three of the women, who are under the age of 30, were sentenced to an unspecified number of lashes and one or two year prison terms each.

The fourth woman, a minor, was sentenced to 80 lashes and was not sent to prison.

The ruling was handed down on Tuesday at a court in the northern town of Ha'il.

The officials say the police saw the group partying until dawn last month. The officials spoke on condition of anonymity because they are not authorized to talk to the media.

Saudi Arabia follows a strict interpretation of Islam that prohibits unrelated men and women from mingling.

Oh, Canada!!!!!!

It only makes sense that you would want our cars, our computers, and our produce....but why in the world would you want to copy the American addiction to prison? Per this story in the Toronto Star, Canadian Conservatives are pushing a proposal that is estimated to cost over $2 billion to build and manage new federal prisons.

The story's money quote comes from Liberal MP Mark Holland:

“We’d have to cannibalize the health, education, military departments just to pay for all these new prisons and what is so offensive about it is that it was tried in the United States, it was tried in the United Kingdom and these policies were a complete failure.”

Indeed they were.

Checks and Balances Are Alive and Well

The governmnet can appeal sentences it thinks are too lenient.
The government can appeal sentences it thinks are too lenient.
The government can appeal sentences it thinks are too lenient.

Keep saying that until your brain moves something useless out to make room for it. And then every time someone tells you that we need mandatory minimums or mandatory sentencing guidelines to stop certain judges from letting criminals go with just a slap on the wrist, take a deep breath and say: But the government can appeal sentences it thinks are too lenient.

Doug Berman highlighted two decisions yesterday that highlight this power. In both cases, appeals courts found that the judges issued sentences far below the lower end of the range set forth by the federal sentencing guidelines.

In the first, a district judge sentenced a man who pleaded guilty to distributing five grams of crack to 120 months in prison - far short of what the guidelines recommended for the man who had a prior drug conviction and two previous assault convictions - the appeals court stated:

In its terse explanation of the sentence, the district court mentioned only [Rodney] Brown’s age (40 years old), the short length of his previous state sentences, and the conditions of his upbringing.

The government has appealed the sentence. Although a sentence so far below the recommended guidelines range lies within the court’s power, and may even have been justified in this case, the record is too spare to support that conclusion at this point. We therefore vacate Brown’s sentence and remand for resentencing.

In the second case Professor Berman highlighted, a different court of appeals agreed with the government's objections to a sentence of just 5 days for a man who pleaded guilty to two counts of possessing child pornography. The appeals court was clearly not pleased with the factors the district judge considered in formulating the short sentence:

The court found that this sentence was warranted because [Richard] Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing. 

Notice that in both cases the government appealed the district judges' sentences and prevailed. Even in a post-Booker world (non-sentencing nerds can bone up on the Booker here), judges are not running wild. The guidelines matter. The judges' decision-making process matters.

Checks and balances are alive and in place. And why? That's right...

Because the government can appeal sentences it thinks are too lenient.

- Ingersoll

Short, Sweet, and Sensible in Massachusetts

In today's Boston Globe, a terrific op-ed makes a short, sweet, and to-the-point argument that Massachusetts' mandatory minimum laws aren't increasing public safety and are costing the proverbial arm and a leg to taxpayers.  It's so short and so sweet, it's worth reprinting in its entirety:

Drug crimes: An incentive for rehabilitation

June 22, 2010

A legislative conference committee working on crime legislation has an opportunity this week to improve the state’s mandatory drug laws without putting the public at risk. Today’s mandatory minimum sentences for drug crimes are structured badly. Inmates can’t even make a case for parole and don’t take part in rehabilitation efforts. Once they finish their mandated sentences, they are released without supervision.

No one should be looking to return to the loose “good time credits’’ of decades ago that freed prisoners well before they had paid their debt to society. But the Senate has approved a reasonable reform: Prisoners convicted of drug crimes would be eligible for parole after serving two-thirds of their sentences in state prison. The Parole Board would have the final word, and departing inmates would be subject to post-release supervision. The House, however, is hesitant.

Public safety isn’t served when drug criminals spend long periods in prison — at a cost of $47,000 a year per inmate — and leave without supervision. The system is out of balance again. Parole eligibility is the way to restore it.

"$175,000 per offender? Get-tough sex predator 'treatment' busts state budgets"

That's the headline of this AP story that appeared in yesterday's Cleveland Plain Dealer. Enacting tough-sounding anti-crime laws only to find out a few years later that they are prohibitively expensive and yield few benefits is not exactly new. What makes this story (as well as this update on implementation of the Adam Walsh Act) different is simply the size of the hole policymakers have dug for themselves. It's going to be very difficult to claim "our children" are not safe from sexual predators without this new law and then say "never mind" a few years later when the results come in.

When this sort of thing happens, it is tempting to say that the politicians made their bed and now will have to sleep in it - but the truth is that we taxpayers will be the ones paying for their legislative overreaching. What we need from our legislative leaders is smarter lawmaking that allows for the weighing of costs and benefits before new proposals are enacted.

There is no higher priority than protecting children from dangerous predators. Surely our leaders can find ways to accomplish this goal without further bankrupting the next generation.

Good Policy + Good Politics = Good News for Reformers

It is impossible to overestimate the role that fear plays in our nation's criminal justice debate. There is a leading role: fear of crime leads to public support for measures to "keep us safe." And there is a supporting role: politicians fear proposing any reforms that could open them up to the charge that they are being "soft on crime." This latter manifestation of fear has been the basis of some smart political campaigns, but  also some truly stupid anti-crime policies.

Two recent developments give hope to the view that the politics of criminal justice might be changing, if slowly. The more recent news comes by way of this story in today's New York Times - remarkable to sentencing nerds like us - in which the candidates are fighting over who has been more vociferous and consistent in their opposition to drug mandatory minimums. Mind you, it took until last year for New York to finally repeal its punitive mandatory minimums. Yet rather than asking whether that was the right move, politicians are already debating what took so long.

But, our wise reader might note, this fight is taking place in a Democratic primary in New York State. This battle among the bluest of blue voters doesn't tell us much about the larger debate, does it? Perhaps not alone, but viewed alongside the results of another primary in another party in another state, we think it does.

Look at the recent Republican primary in the California Attorney General's race. In a crowded field, Steve Cooley, a Los Angeles district attorney, ran on a record of restrained enforcement of the state's onerous three-strikes law. He said the state should not spend its limited resources by giving life prison sentences for those who do not pose a serious criminal threat to society. He practiced what he preached; as DA, he directed his office not to seek life sentences against two-time offenders who commit a minor third crime. His GOP primary opponents seized on this record and attacked him for being - drumroll, please...soft on crime. Yet Cooley won the primary on June 8.

On two ends of the country, in two different political parties, we are seeing candidates use a smart-on-crime agenda to win votes. If this trend continues, we might finally reach the point where good policy and good politics will lead to the same platform of criminal justice reforms.

That Convict Just Might be Someone's Dad

 ...and you will be hard-pressed to forget that after reading this heartstrings-yanking story in USA Today. Thanks to the Crime Report  for the tip, and a sincere Happy Father's Day to all the dads, especially those who can't be with their kids.

THAT carries a mandatory minimum? For real?

Now, I personally think all mandatory minimums are unnecessary (and unwise and unjust), but some have the added bonus of being outdated.

Take 19 U.S.C. § 283.  Never heard of it?  Of course you haven't.  The law was created in 1886.  It makes it a crime to fail to report and pay duties on "saloon stores or supplies" purchased at foreign ports when the ship carrying those supplies docks in the United States.  This nefarious act carries a mandatory minimum prison term of 3 months.

Really? Seriously?  I know I'll definitely think twice the next time I take a cruise, buy a spitoon, and fail to pay the duties on it when I return to the good 'ol U.S. of A.

One of the major premises behind mandatory minimums is that they'll scare people into not committing those crimes. This blog post is a good example of how that premise only holds water if people actually know what the crime is, and what the mandatory minimum is! 

Cruise-takers and spitoon-buyers, beware. You are now on notice that 19 U.S.C. § 283 is out there.  If you don't want to spend three months in a federal prison, listen to your wife and put the spitoon back on the shelf, or just declare the stupid thing when you make port.

--Stowe

The Commission Giveth...and the Commission Taketh Away

The U.S. Supreme Court released its opinion today in Dillon v. United States, a case FAMM has been following closely because of how many federal crack offenders it could impact.

Dillon isn’t a simple case, but I’ll try to break it down. Dillon was convicted and sentenced way back in 1993 for a crack cocaine crime, long before Booker made the U.S. Sentencing Guidelines advisory. The judge never liked the sentence Dillon got – it was a whopping 18 years too long. It wasn’t until 2008, though, that Dillon had a real chance to change that sentence.

In 2007, the U.S. Sentencing Commission passed the so-called “crack minus two” amendment to the guidelines. This change shortened crack sentences for all offenders sentenced after November 1, 2007. On December 11, 2007 – after a lot of urging by FAMM and its members, among others – the Commission unanimously voted to make those changes to the crack guideline retroactive, so that crack offenders sentenced before the March 3, 2008 effective date could try to benefit from the new, shorter crack terms.

To control how the new sentence reductions would be handed out to those in prison, the Commission also amended its policy statement in § 1B1.10 of the guidelines, which tells judges how to apply retroactive guidelines. The bottom line: judges could award sentence reductions that line up with the new amendment, but couldn’t do a complete resentencing under the (now advisory) guidelines. In other words, Dillon could go back to court but, at most, get the benefit of the new crack amendment. The judge couldn’t go back to square one and apply the now-advisory guidelines to give Dillon the shorter sentence the judge believed he deserved.

Dillon, understandably, was upset with this and presented a challenge: if Booker made all the guidelines advisory, isn’t § 1B1.10 advisory, too? That would mean that judges could revisit the entire sentence under the advisory guidelines at the same time they’re applying the Commission’s new retroactive crack amendment.

The Supreme Court answered Dillon’s question with a resounding “no.” According to the Court, getting a retroactive amendment applied to your sentence is just not the same thing as a full sentencing hearing – it doesn’t trigger the same Sixth Amendment concerns that resulted in Booker in the first place. So, judges have to follow the limits of § 1B1.10. The Commission giveth, and the Commission taketh away.

But maybe there’s a silver lining here. A Dillon win could have dampened the Commission’s penchant for making lowered guidelines retroactive. If Dillon had won, judges could treat § 1B1.10 as advisory and resentence people under the advisory guidelines every time an amendment was made retroactive. Maybe this Dillon loss can reassure the Commission it still controls some aspects of sentencing.

Or, at least, let’s hope so. Like I said, I’m trying to see a silver lining.

But Percy Dillon may still get some relief. If another Supreme Court case, Abbott and Gould, goes our way, he might get five years shaved from his sentence. See more about that case, which will be argued sometime in the fall, here. There you will find FAMM’s amicus brief, complete with a profile of Percy Dillon. For more discussion of the Dillon case, see the good coverage on TalkLeft here.

--Stowe

Old, Sick, and Dying ... in Prison

America's love affair with creating longer sentences in the 1970s and 1980s has resulted in a love child we may no longer want to keep:  a skyrocketing number of sick, elderly, and dying inmates who cost millions to treat and keep locked up in prison.

This 23-minute video from Al-Jazeera English tells the stories of this growing segment of America's prison population.  Is a 101 year-old man with one leg really a danger to society if we let him out?  Is a 59 year-old man who's spent 31 years in prison, earned a master's degree in theology, and redeemed himself a likely candidate for committing more crimes?

You be the judge.

Send Perez Hilton to Jail.....and Free Eric Rinehart

No, I don’t really think the flamboyant celebrity blogger needs jail time, but if I had to choose which of these two gentlemen poses a bigger threat to society, I’d say Hilton in a flash.

What is this all about, the dear reader might be wondering. Let me explain.

Yesterday, Tracy Clark-Flory of Salon.com reported that Perez Hilton tweeted an upskirt picture of pop princess Miley Cyrus. Problem? Cyrus apparently wasn’t wearing panties. Bigger problem? Cyrus is only 17.

If it is true that Cyrus was bare there (and maybe even if she wasn’t), Perez Hilton could be prosecuted for distributing child pornography and, if found guilty, required by federal law to serve a minimum 10-15 years in prison.

Will it happen? One criminal lawyer interviewed by E! Online said it was highly unlikely. Attorney Christopher Leibig told E!’s reporter, "This one image of a 17-year-old, even if it were technically child porn, is not a very big child porn case. Usually child pornography cases involve multiple images, including children being photographed—in a private setting and performing sexual acts—by perpetrators for profit."

Okay, but we’ve seen what zealous prosecutors can do in this area, such as charge high school kids for naughty texting. No matter, says Liebig, “It just doesn't reach the same evil that these laws were intended to prohibit."

Christopher Leibig, meet Eric Rinehart.

Eric Rinehart is a 36 year-old man serving 15 years in a federal prison for downloading some dirty pictures sent to him by a 16-year girl with whom he was in a lawful sexual relationship. Rinehart was charged and convicted of producing and possessing child pornography. The charges carried a mandatory minimum sentence of 15 years.

Rinehart’s judge was so outraged by the sentence he was forced to give that he wrote a strongly worded sentencing memo for the express purpose of helping Rinehart get a commutation. He pointed out that there was no evidence that Rinehart distributed the pictures or even intended to. The judge wrote, “The mandatory minimum 15 year sentence is far greater than is necessary to serve the statutory purposes of sentencing.”

Does Mr. Leibig honestly think Mr. Rinehart’s case reaches “the same evil that these laws were intended to prohibit”?

Here’s the point: Perez Hilton tells potential advertisers that his site averages 280 million impressions and 13.5 million unique readers per month. Eric Rinehart was an audience of one. If Perez Hilton can distribute a pornographic picture of a 17 year-old girl without being prosecuted, why does Eric Rinehart have to forfeit 15 years of his life for simply receiving a picture of a girl he was in a lawful, consensual relationship with?

Salon’s Clark-Flory concludes well:

As is often the case when you delve into the realm of child porn law, it's rather shocking what you can find -- from sexting teens charged as sex offenders to parents arrested for taking photos of their kids naked in the bathtub. If a 15-year sentence and lifetime registration as a sex offender seems a disproportionate response to what Hilton did, remember that scores of Americans face similarly disproportionate charges but don't have a recognizable, headline-making moniker.

- Ingersoll

An Honest Politician....Seriously

Sometimes an elected official just tells it like it is - with no spin and no hedging. That was the case when Nevada State Senator Bill Raggio was asked by a local television station what he thought of the mandatory life sentence given to Michelle Taylor. Senator Raggio was one of the lead sponsors of legislation in 2005 that changed Nevada's law so that all individuals found guilty of lewdness with a minor under 14 must be sentenced to life in prison (with parole eligibility after 10 years). Before then, the law provided another sentencing option: 20 years in prison with parole eligibility after 2 years.

As SentenceSpeak readers know, we were outraged by the life sentence given to Ms. Taylor, who was found guilty of kissing a 13 year old boy and forcing him to touch her breast. Did she deserve to be punished? Of course. Did she deserve a life sentence? Of course not.

Enter Senator Raggio. Asked by KOLO-TV in Nevada about the sentence, Senator Raggio said, "You know, you draft the law because of the more serious cases, and you can't always foresee that something maybe far less could come under that condition.”

The inability to foresee all the cases that could fall under "that condition" known as the law is the fatal weakness of all mandatory minimum sentencing laws. It's why groups like FAMM have collected hundreds and hundreds of case profiles revealing individuals that received sentences that were completely disporportionate to their crimes.

Elected officials might have the best of intentions when they seek to impose a tough minimum sentence for violators of certain crimes. But they should have enough humility to realize that they can't foresee every single case that might be prosecuted under those mandatory laws.

It's refreshing to see an elected official like Senator Raggio step forward and admit that the law he supported might have reached too far. We will be even more impressed if he and his colleagues take action and fix the law.

Mandatory Minimums in Massachusetts on Monday

That's a tongue twister!

But editorials in local Massachusetts papers don't mince words:  the state has a chance to reform its mandatory sentencing laws, and it shouldn't miss that chance.

This editorial in The MetroWest Daily News urges Massachusetts to become the next state to reform its mandatory minimum laws -- especially because a single year of prison time costs taxpayers over $40,000.

This piece from the Patriot Ledger describes how mandatory minimums in Massachusetts might actually lead to more crime, not less.  Interestingly, it quotes a district attorney who agrees:

Mandatory minimum sentences enacted in the 1990s were driven by politics, not smart criminal justice policy.

Getting “tough on crime” and clamping down on soft judges seemed like a good idea at the time, but in practice, it has meant drug addicts get little or no post-release supervision. Their addictions go untreated; they are ineligible for work release programs that help them get a fresh, legal start on the rest of their lives. They finish their sentences and are dropped back into the same neighborhoods they left – and too often fall into the same old patterns of crime and substance abuse.

“There’s a real benefit to allowing supervised parole after two-thirds of a mandatory minimum sentence is served,” Norfolk County district attorney William Keating said last year when this bill surfaced. “It makes sense because these people are coming out some day” and without access to programs that can aid their transition back into society, “they’re very likely to fall back into what they were doing before.”

Those living in Fall River, Mass. can also read the editorial in The Herald News.

YouTube for the Weekend

FAMM just posted a YouTube video of its president, Julie Stewart, testifying in front of the U.S. Sentencing Commission at its hearing on mandatory minimum sentences on May 27, 2010. 

Ten minutes may not sound like enough time to testify about 20 years of injustice, but that's what Julie got.  She used that time wisely and told the Commission about a horrendously unjust case, urged the Commission to lead the charge on sentencing reform, and called on the Commission to release a cutting-edge research report on mandatory minimums this fall.  Not bad for just 10 minutes!

View parts 1, 2, and 3 here.

Concrete Jungle Where Dreams Are Made Of...

The headline to this story in the New York Times...

"As Crime Rate Drops, New York’s Jail Population Falls to Lowest Level in 24 Years"

...was great, the story was even better. It seems New York is not only benefitting from the continued downturn in crime rates seen across the country, but rather, the city is being smart with its crime-fighting resources. Key quote:

The Correction Department, working with other city agencies and private foundations, has instituted programs to help prevent recidivism. “There has been a very real robust diversion effort,” said Martin F. Horn, another former correction commissioner who teaches at John Jay College of Criminal Justice. “Even though the N.Y.P.D. continues to make a record number of arrests, fewer are coming into the criminal courts or are dismissed or resolved through time served. We’ve got a safer city and less incarceration.”

Safer city and less incarceration? Imagine that.

If Ol' Blue Eyes was right - that if you can make it there, you can make it anywhere - then every big city mayor and police chief across the country should learn from the Big Apple.

From the Bench

Ingersoll, I love it when you use charts, but there's nothing like a good old-fashioned survey to get my policy wonk blood up in the morning.

I'm still going over the U.S. Sentencing Commission's new survey results from federal judges, and they're pretty powerful.  The judges surveyed didn't agree on everything, but clear -- and sometimes surprising -- consensus does arise on more than one point.

Take these results, for example:

• 62% of judges thought mandatory minimum sentences were too high for all crimes
• 71% thought mandatory minimums were too high for receipt of child pornography (which carries a 5-year prison term that some judges find too harsh in some cases)
• 76% thought mandatory minimums were too high for crack cocaine crimes

And that's just mandatory minimums.  Here are some interesting safety valve finds:

• 69% of judges thought the "safety valve" exception to drug mandatory minimums should be expanded to apply to all crimes with mandatory sentences
• 71% thought the current drug "safety valve" should be expanded to apply to receipt of child pornography crimes

A measly 16% of judges thought it was okay to consider so-called "acquitted conduct" at sentencing.  Prepare yourself to hear something downright un-American, because here's the gist of "acquitted conduct":  you're charged with two crimes, crime A and crime B.  The jury finds you not guilty of crime A, but convicts you for crime B.  Under current rules, at sentencing for crime B, the judge can still sentence you as if you committed crime A -- even though a jury acquitted you of that crime!

It's a travesty of justice, right?  Judges apparently think so.

Finally, the Commission asked the judges to pick the sentencing system that best achieves the purposes of punishment (rehabilitation, deterrence, public safety, and just punishment).  A stunning 75% picked the current advisory guidelines system.  Only 3% opted for the mandatory guidelines system that existed before Booker. 

Perhaps those clamoring to return to the pre-Booker world should reconsider.  We might have hundreds of upset judges to deal with if we did.

-- Stowe

Three Charts to Break Your Heart

That's the title of this post by Katherine Mangu-Ward of the indispensable blog, Hit & Run. She cites a new report, "The High Budgetary Cost of Incarceration" by the Center for Economic and Policy Research.

We at SentenceSpeak know the country is not filled with sentencing nerds - and, believe me, we're glad for it. But we also know that if we are going to talk seriously about alternatives to incarceration, especially mindlessly long stints of incarceration, we need all those of good will to start with a common understanding of the facts. Well, when it comes to getting your head around the problem of overincarceration, mass incarceration, addiction to prison - whatever you want to call it - it would help if we all took a good long look at the three charts below and let them sink in for a while.

I don't know if they break my heart, but these charts certainly make me frustrated.

- Ingersoll

What are those judges thinking?!

Do you ever wonder what judges actually think?  Unless they're testifying before Congress, giving us a piece of their minds in a written legal opinion, or (even more rarely) being quoted in a news article, federal judges' true feelings about our sentencing system rarely come out.

Until today, that is.  The U.S. Sentencing Commission just released a tell-all report on what federal judges actually think about the sentences they're handing out on the day job! 

I liked this survey right off the bat.  Question 1:  Are mandatory minimums generally appropriate for the offenses they apply to?  The response:  for all crimes carrying mandatory minimums, only 38% of judges thought they were appropriate; 62% said they were too high.

With drug crimes, it apparently depends on the drug.  The biggest loser:  crack cocaine.  Only 23% of responding judges said that crack mandatory minimums were appropriate for the crime.  A whopping 76% said they were too high.  When three out of four judges think a sentence is too harsh, we have a problem that needs fixing -- right now.

Among the other questions the Commission asked judges: who should receive the benefit of an expanded "safety valve" (an exception to mandatories that currently applies only to low-level drug offenders)? Should the Commission set up its guideline ranges with no regard for mandatory minimums? Are current guideline ranges too high for the crimes to which they apply?

I could go on and on about all these goodies, but I'll refrain. For now.

-- Stowe

We Heart Simple Justice

We want to give a shout-out to Scott Greenfield, Esq. and Simple Justice: A New York Criminal Defense Blog. In this recent post, Simple Justice describes us and our goal perfectly:

The blog is called SentenceSpeak, and states its purpose to be: a forum for educating the general public about sentencing injustices and engaging and finding common ground with "unlikely allies" such as fiscal conservatives, former prosecutors and judges, law enforcement, and members of sentencing commissions. SentenceSpeak is a place for sharing unique perspectives on sentencing policies.

The writing is easily understood and quickly digested, and the content is controversial. There are two authors of the blog, both pseudonymous. FAMM has proven to be a highly credible source of information and done some great work in the sentencing field. As for the blog content, it's unclear whether it represents FAMM's position or just that of the unknown authors.
 
I would expect that it will be directed toward non-lawyers, and thus be a bit on the simplistic side as shown by this post about sentencing for unconvicted conduct, but still a great resource for those who would otherwise have neither knowledge nor access to this sort of information. And it uses some pretty interesting graphics to spice things up.

For non-lawyer sentencing nerds (their description, not mine), this is a very interesting blog and something that you might want to let the families of convicted clients know about.

BINGO! Thanks to Simple Justice for welcoming this new kid to the block.

Preventing crime? There's an app for that.

Can it really be that much longer until technology transforms our antequated criminal justice system? From GPS tracking to the ankle bracelets examined in this story in today's Dallas Morning News, I am hopeful that our country can slowly shake its addiction to prison.

In the short term, it would be swell if DOJ or a forward-looking state underook an ambitious pilot project that pushed the use of technology to its limit. Public safety must not be compromised, of course, but at a time when such a large percentage of the people being held in dungeons - er, I mean, prisons - are non-violent offenders, such an experiment would seem to pass any cost-benefit analysis.

So what do you say, Google? If you have the time and capability to produce a curbside view of every house in the United States, can't you lend a hand? And, Apple, couldn't you develop an app that helps law enforcement keep Johnny the Junkie out of trouble? I bet you can.

- Ingersoll

Meet Scott Earle

If one compelling case is sufficient to change the law - think Adam Walsh Act, Megan's Law, and the Amber Alert - then the only thing you need to know about how rotten Florida's prescription drug mandatory minimum laws are is the case of Scott Earle.

Scott Earle and his mom

Meet Scott Earle.

Scott began using painkillers after a sports injury when he was a teenager. After being in several car accidents, his dependence on the medication grew until he was taking over a dozen pills each day. Despite his addiction, Scott held full-time employment at an auto dealership and worked as a musician on the side.

In September of 1995, Scott was admitted to the emergency room for a painful diverticulitis attack. The doctor prescribed him Vicodin. Several days later, Scott’s roommate introduced him to a beautiful woman at a neighborhood bar. After getting drinks with Scott and learning of his recent hospital visit, the woman asked him if she could have some of his pills for her back pain. He agreed and gave her some of his own pills.

Unbeknownst to Scott, the woman was an undercover police officer. Soon, she began calling Scott at home and at work, asking if he could get more pain medication for her. Scott’s legal prescription had run out so he contacted a friend who knew someone that could supply the woman with painkillers. The officer started out by purchasing small amounts of pills and then began requesting over 100 at a time. Scott, who had developed strong feelings for his new “friend,” would meet her at the neighborhood bar, where she would pick up her pills from the supplier. Afterwards, she and Scott would drink and talk for hours. Scott acted as a middleman who connected the officer to a man selling pain medicine. He did not benefit monetarily from the transactions. Three months after meeting the woman at the bar, Scott was arrested for felony drug trafficking and conspiracy.

Scott accepted responsibility for his actions and pled guilty. In return, he received the only penalty allowed under Florida law: a 25-year mandatory minimum sentence. The sentencing judge was appalled at the sentence he was forced to impose on a first-time nonviolent offender:  "[T]his punishment does not fit the crime. We are not talking about a first or second degree murder…with a great degree of reluctance, I will have to sentence the defendant [to] 25 years minimum mandatory."
 
The judge's words have been of little comfort to Scott Earle as he has languished in prison for the past 12 years. Unless something changes, he will not be released until October 2019. I hope something changes.
 
- Ingersoll

Now John Stossel Weighs in on Michelle Taylor Sentence

Popular author, 20/20 host, and current Fox Business News host John Stossel weighed in on our favorite case on his blog. He criticized the mandatory minimum life sentence given to Michelle Taylor in Nevada as another example of one-size-fits-all-government gone terribly awry. From Stossel:

"After delivering the life sentence, The judge offered a confused-sounding explanation:
Ms. Taylor, you were charged with a crime with this sentence and apparently you weren't offered any plea deal... I've done a lot of these cases and I can't figure it out. To tell you the truth I don't know why they charge what they charge... and why they give plea bargains to some and others not, but I know that you had a jury trial, and you were charged, and this is the sentence. Good luck.

Good luck!? Julie Stewart of the group Families Against Mandatory Minimums tells us: 'We are following this to its bitter end -- fighting to get it overturned in the State Supreme Court -- to try to make sure that this is overturned not just for her case, but that they overturn the law.'

Once again, one-size-fits-all government policy imposes its nasty results."

Good for John Stossel. As we reported last week, Taylor's attorney has filed an appeal with the Nevada Supreme Court. We're convinced it's just a matter of time before this story gets even bigger. Stay tuned.

- Ingersoll

Proud Blog Papa

Please indulge a proud blog papa, but we can't resist bragging when one of FAMM's own appears brilliantly in print. Behold the op-ed written by our own Barb Dougan which appeared in this morning's Republican in Massachusetts. Money shot:

In 2009 New York decided to reduce the demand for illegal drugs by embracing treatment as the more effective tool. Rhode Island and Michigan are among the many states that have repealed mandatory drug sentencing laws. Massachusetts simply cannot sustain its addiction to lengthy prison sentences for drug offenses. Our tax dollars should be spent in a way that makes communities safer, not poorer.

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

FAMM's been outraged by the case of Michelle Taylor from the minute her judge was forced to give her a mandatory life sentence for forcing a 13-year-old boy to touch her breast and soliciting him for sex (never mind that no sex actually happened).

Taylor's saga continued today with the next step:  filing an appeal.  Here's FAMM's response, and if you need a little something to get you good and angry on a Friday, here's the YouTube video of Taylor's sentencing hearing.

South Carolina Cuts Where it Counts

This week, South Carolina joined ranks with a growing number of states that are hacking away at their prison budgets using sentencing reform as a machete.

This Post and Courier article sums up the bill, and here's FAMM's reaction to it.

This kind of reform is exactly what we need to be seeing more of.  When states start seeing prisons as the precious (i.e., rare) commodity they should be, they'll start making smarter, more effective choices about how to use them wisely.  Getting smart on prison usage will benefit taxpayers and ease the budget strains on state governments.  And in this economic slump, those are some cuts we can all get behind.

The Epidemic that Isn't

Ingersoll, you're right -- it's prosecutors, rather than judges, who lead the way in giving people less time than the sentencing guidelines recommend.

Yesterday, just for kicks ('cause that's how us sentencing nerds roll), I was looking at U.S. Sentencing Commission data collected after U.S. v. Booker got handed down -- you know, the 2005 case that said the sentencing guidelines are no longer mandatory.  Since Booker, the Department of Justice has been complaining about a supposed outbreak of sentencing disparity -- people getting different punishments for the same crimes, because judges aren't handcuffed to the guidelines anymore.  You'd think it were an epidemic, the way some people have ranted and raved about how Booker is creating the end of the world as we know it.

A slight problem with that:  the raw numbers don't support it.

Here are the raw numbers:  in the five years since Booker, over 345,000 (!!!) people have been sentenced in federal courts.  Only 33,143 (about 9.6%) of them have been sentenced below the recommended guideline sentence by judges relying on Booker.

Does that sound like a pandemic of sentencing disparity to you?  Not to me, it doesn't.  Out of 345,000+ cases, these kinds of sentencing disparities are acceptable -- and should be expected.  Those 33,143 people could've been given shorter sentences because -- what a concept -- the sentencing guidelines aren't perfect, the case was unusual, or the defendant was extraordinary.  The number one reason judges gave last year for going below the guidelines:  the nature and circumstance of the offense or the history of the defendant didn't merit a sentence at the guidelines range. 

This supposed pandemic of sentencing disparity is a bit more like another pandemic we recently survived -- swine flu, anyone?

--Stowe

This Price is Right

At last week's hearing before the U.S. Sentencing Commission, the Department of Justice floated ideas for mandatory minimums for white collar crimes. What a tease.

Today, FAMM Vice President and General Counsel Mary Price strikes back with commentary on Main Justice.

There Go Those Liberal Prosecutors Again...

Look at the graph below very closely. It shows the latest data from the U.S. Sentencing Commission about federal sentences. (What did you expect the Sentencing Commission would report on?) This updated graph shows the number of times that sentences handed down last quarter (and many quarters before) followed the guidelines recommended by the Commission. It's like a report card.

Now direct your attention to the green line which shows the number of times that judges sentenced below the recommended guidelines. According to the Justice Department, this number should bother you, to make you suspect that wishy-washy, soft-on-crime judges are giving lighter sentences more often than they should. Don't judges know that they are (mostly) supposed to follow the guidelines? Angry yet?

Okay, now look at the blue line. This represents the number of times that the prosecutors requested that offenders receive a sentence below the guideline range. Meet me below the chart when you're done looking.

Notice anything interesting about that blue line? That's right. It's higher than the green line. It demonstrates that prosecutors are seeking lower sentences for offenders more often than judges are initiating shorter terms.

Now, sentencing is a complicated business and to make sense of this graph, you would really need to know a heck of a lot more information. For instance, maybe the prosecutors proposed lighter sentences for some because those offenders were helpful in other investigations. Maybe the prosecutors wanted to accept lower sentences as part of a plea so they could more quickly deport an alien offender. There could be all sorts of legitimate reasons why prosecutors might not seek absolute uniformity in sentences.

But that raises an obvious but vital question: If prosecutors are allowed to sacrifice uniformity on occasion, why is it considered a crisis when judges - for reasons they find compelling - go below the guidelines with less frequency?

- Ingersoll

Speaking of talking...

FAMM President Julie Stewart has been talking about mandatory minimum sentencing reform for 19 years, and this Denver Post article shows why people are still listening:

“Judges cannot dispense justice in every case when there is an automatic punishment that may or may not be appropriate for every person. ... Every crime is different, every defendant is different, and when you just apply a cookie-cutter sentence to each crime, you are not going to be sentencing people to their appropriate sentence in every case ... Some people are going to get too much time.”

Hear, hear.  Or rather, I hope Congress and the U.S. Sentencing Commission hear.

--Stowe

Will "Texas Tough" Become Texas Smart?

Texas's lengthy addiction to prison and harsh punishment has been well-documented, including in a new book titled "Texas Tough" by Robert Parkinson. But today's Crime Report highlighted a new story about growing momentum in Texas to close a prison or two in reponse to growing budget constraints. The story, which appeared in the Austin American-Statesman, included the following:

For decades, Texas focused on building more prisons in the name of public safety, tripling the size of the system in the 1990s alone. But in recent years, the state has found that greatly expanded treatment and rehabilitation programs can reduce the number of people in prison — and save money.

"One in every 22 Texans are in the criminal justice system — on probation, on parole, in prison," said state Rep. Jim McReynolds, who chairs the House Corrections Committee. "Because we invested in treatment and re-entry and rehabilitation programs starting several years ago, Texas is in a position to have those drive the discussion for the first time that I can remember, instead of just incarceration or building new prisons. That's a big change from the past."

Whereas the average cost of keeping one felon in prison is about $47 a day, the cost of alternatives is much less, according to state statistics. Probation costs an average of $1.24 a day; parole supervision is $3.74. Various community-supervision programs range from $5.56 to $47 or more, depending on the type of program and whether secure housing is provided.

If Texas - TEXAS! - can close prisons in favor of re-entry and rehab programs, then smaller, sissy states should have all the cover they need to try the same.

- Ingersoll