Good and Mad Reading for the Weekend

Leading into the weekend, we thought it'd be nice to leave you with some reading that is sure to make you as good and mad as Henry Fonda in 12 Angry Men.

The case is United States v. Vasquez, No. 09-CR-259 (E.D.N.Y. March 30, 2010).  Mr. Vasquez received a five-year mandatory minimum for playing a minor role selling drugs to support his own drug addiction. Federal Judge John Gleeson wanted to sentence Mr. Vasquez to 24 months in prison, but could not because of the prosecutor's charging decisions.  Even though the prosecutors agreed that a five-year mandatory minimum was excessive, they did not comply with Judge Gleeson's request that Mr. Vasquez be charged differently so that the mandatory minimum would not apply.  Clearly upset, Judge Gleeson's opinion (which is full of gems) succinctly explains why no prosecutor should have this much control over sentencing:

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at the defendant’s sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence. But the prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.

You can read the rest of the tongue-lashing Judge Gleeson gave to the prosecutors -- and the reasons he thought a five-year mandatory minimum was a bad fit -- right here.

Mercy Me -- and Justice, Please

By our count, it's been 647 days since President Obama took office, and in those 647 days, he has not granted any commutations or pardons.

That doesn't mean nothing is happening, though, because this Politico piece by Josh Gerstein highlights that President Obama recently denied requests for clemency -- 605 commutation applications and 71 pardon requests, to be specific. There are, according to the Office of the Pardon Attorney, thousands of other requests still pending, many of which were submitted during the last Bush administration. Here's FAMM's view on the denials, with some interesting factoids from clemency super-blogger P.S. Ruckman:

“We’d like to see him being a lot more generous and actively granting clemency, but it doesn’t seem to be a high priority of this administration at all,” said Molly Gill of Families Against Mandatory Minimums, an organization advocating the elimination of harsh federal punishment for certain low-level crimes. “Obviously, there are a lot of political decisions that go into clemency decisions, particularly in an election year.”

According to Pardon Power, a blog that tracks clemency issues, Obama is currently the fourth-slowest president to commute or void a prisoner’s sentence. Only Presidents Bill Clinton, George W. Bush and George Washington have taken longer, according to P.S. Ruckman of Rock Valley College in Illinois.

Election year or no election year, it is mind-boggling to us that the Office of the Pardon Attorney and President Obama have yet to find even one federal prisoner worthy of a commutation or pardon.  With  mandatory minimums, limits on appeals, collateral consequences for convictions (like not being able to vote), lengthy guideline sentences for nonviolent drug crimes, and a slew of other problems and mistakes in our imperfect legal system, it begs the question:  What are you looking for, Mr. President?

Maybe there are bigger flaws in the clemency review system that need to be addressed.  Here's what we most often hear from FAMM members:  people submit pardon and commutation requests, sometimes never get so much as an acknowledgment that their applications have been received, and then wait...and wait...and wait for an answer.  Most get few or no updates from the Office of the Pardon Attorney.  Calling that office only lands people in an automated system in which they can't get a human being on the phone.  Many of our members report waiting years before their petitions are (inevitably) denied. Getting a commutation hasn't just become a long shot -- it's more akin to winning the lottery.

Until we have a perfect legal system, we will always need the President to correct individual cases of injustice. Thousands of prisoners and their families are counting on President Obama to keep reviewing cases, to urge the Office of the Pardon Attorney to recommend clemency quickly and often, and to use clemency to give everyone the benefit of systemic reforms (for example, giving the benefit of recent crack reforms to people in prison). We know the President knows the system is imperfect -- he's said as much.  Now we need action. Granting clemency isn't soft on crime; it's not just about mercy. It's about doing justice.

Elections Afoot!

Just in case those 22 voice messages on your phone from the candidates aren't enough, we'd also like to remind you to vote (if you can) on Tuesday, November 2.

Who should you vote for?  We can't tell you that, because we're a nonpartisan, non-profit organization and we value our 501(c)(3) status with the IRS.  But whoever you vote for, make sure you vote.  It's going to be an important -- perhaps historical -- mid-term election, and the lawmakers you send to Congress in November will be the ones responsible for reforming sentencing laws for the next two (or six) years.  State elections are just as important -- who you pick for your state legislatures and governors will influence sentencing policies in the future.

So, we can't tell you how to vote -- but we do urge you to get educated, visit some websites, call some candidates, read some literature, and go to the polls on Tuesday.  Project Vote Smart is one resource for finding out who's running for office in your district and where they stand on the issues.  On the Issues is another helpful online tool for tracking where legislators stand.  And don't forget the House and Senate websites for good information on incumbents.  You can get information on all of the races (state and federal) at FAMM's website.

For those with criminal convictions, the right to vote hinges on what your state's law says.  While many, many people with criminal convictions can't vote, this recent Washington Post article has some positive news about the fight against felon disenfranchisement.

"It’s, like, the most intense hallucinogen ever.”

That line comes from this interesting article about a drug bust in the ivy halls of Georgetown University, right here in the heart of Washington, DC.

The hallucinogen in question is DMT, dimethyltryptamine, and it was allegedly being manufactured in a dorm room by two 18 year-old Georgetown students who have now been arrested, held without bond, and charged in federal court.  According to the article, the lab was discovered after students called campus security with complaints about funny smells coming from the dorm room.  Police and campus security evacuated the dorm in the middle of the night and were still turning dorm residents away the next afternoon, out of fears that the highly flammable chemicals found in the room might be harmful or explosive.

A handful of Harbin residents who were milling about outside the dormitory, all of whom shared the floor with the alleged DMT lab, said the dorm’s ninth floor has become known as “the Penthouse” — not so much because it’s the top floor but because “our floor is notorious” for having a good time. Just a couple of months into the semester, they said there have already been a number of complaints about partying. And now, the alleged manufacture of hallucinogens.

Lucky for the students charged, they were apparently making DMT, not methamphetamine.  If the case involved methamphetamine, it could trigger a mandatory minimum sentence of five or 10 years (and possibly more, depending on the sentencing guidelines).  But because the case appears to have involved DMT, it looks like no mandatory minimum will be involved.

Which makes me think the whole assignment of mandatory minimums is pretty arbitrary -- if you manufacture meth, you're in for a mandatory; if you manufacture something else that is also mind-altering and involves dangerous (maybe explosive) chemical labs, you don't face a mandatory minimum sentence.  Why distinguish at all?  Why carve out a list of "bad" drugs and assign them mandatory minimums, but leave other drugs off that list?  Mandatory minimums create all kinds of unintended disparities, and this is another one of them.

The solution isn't to apply mandatory minimums to all drugs -- it's not to apply mandatory minimums to any drugs.  Guidelines and judges should be used to assess each drug case as the unique beast it is.  Getting a sentence that fits you and your crime shouldn't depend on whether you were fortunate enough to pick a drug that isn't on Congress's list of mandatory minimum substances.

Justice Stevens Speaks Out

Retired U.S. Supreme Court Justice John Paul Stevens is gone but not forgotten (how could he be, with all those dissents?!).  Sitting justices do their talking almost solely through their opinions, but when they leave the bench, they have lots of other avenues for sharing interesting stories and opinions about past cases.

The National Law Journal features an article describing Justice Stevens' October 7 speech in Washington, DC, during which he picked apart the opinion that entrenched mandatory minimum sentences in our system:  Harmelin v. Michigan.

In Harmelin, decided in 1991, a defendant challenged Michigan's so-called "650 Lifer" law, which required a mandatory life without parole sentence for any defendant who possessed 650 grams or more of cocaine or heroin.  Defendant Harmelin thought this mandatory sentence (which he received) was cruel and unusual punishment under the Eighth Amendment.

Justice Stevens agreed (and still does), but he was on the losing side of that case.  It was Chief Justice Rehnquist and Justice Scalia who wrote the opinion upholding the "650 Lifer" law, saying that the Eighth Amendment prohibited certain types of punishments (like torture) but didn't require that punishments fit their crimes.  Thank goodness for FAMM and its members in Michigan -- we later got the state's legislature to add parole eligibility for 650 Lifers and repeal many of the state's drug mandatory minimums.

Justice Stevens' speech is a good read, even if you're not a lawyer.  And he's right about the Eighth Amendment -- if "cruel and unusual" doesn't include excessive punishments, that Amendment isn't much of a protection at all.

Shackled to Prisons

I couldn't have asked for a better follow-up to yesterday's piece on women not going to prison than today's article in the Atlanta Journal Constitution highlighting a new report that shows the poor treatment of mothers in prisons:

The report, being released Thursday by the National Women's Law Center and the Rebecca Project for Human Rights, analyzes policies in three areas — prenatal care, shackling of pregnant women during childbirth, and community-based alternatives to incarceration enabling mothers to be with their children.

Only one state, Pennsylvania, received an A.

Ouch.  And yes, you read that correctly -- many pregnant prisoners are still shackled when giving birth in custody.  According to the article, only 6 states -- New York is the latest -- prohibit this.  And lest we think they're all murderers who would escape and go on a killing spree between contractions:

As a backdrop to its findings, the report noted the number of women in prison — more than 115,000 as of 2009 — has risen at a higher rate than that of men since the introduction of mandatory sentencing policies for many drug offenses. It said most of the women are nonviolent, first-time offenders, and about two-thirds have at least one child under 18.

So, mandatory minimums mean longer prison sentences for nonviolent women, who face a whole different set of challenges than men going to prison.  For pregnant women and women with children, those long sentences don't just cost taxpayers in terms of incarceration costs.  They also cost society and the kids, who are usually raised by grandparents or enter the foster care system.

America has shackled itself to long sentences and prisons -- and the costs can't just be measured in dollars and cents.

Women, Prisons, and Alternatives

The Los Angeles Times features this heartwarming article about a women's alternative sentencing and reentry program that is providing women with drug and mental health treatment, job training, parenting skills, and the tools they need to depart from lives of crime.  It should come as no surprise that drug treatment is more effective -- and cheaper -- than prison, too:

The treatment, currently funded through a grant from the California Department of Corrections and Rehabilitation and donated services from Prototypes, costs about $18,000 for each woman per year. But compared with keeping them in prison and their children in foster care for years, the state is saving millions of dollars, the program's organizers say.

Women are one of the fastest-growing demographics in America's prison system, and most end up there for nonviolent crimes that involve drugs, poverty, abuse, or all of the above.  Many have children who, as the article suggests, end up in the care of loved ones or the foster care system.

The thing that really warms my heart about the program in the Times article:  how much flexibility it gives to the judge.  The judge gets to look at each woman, assess where she's at, and make a fully-educated decision about what kind of sentencing options will work for her.  That's the kind of sentencing system we need if we're going to see lives changed.

--Stowe

Crack Guideline Changes Take Shape

The U.S. Sentencing Commission announced temporary emergency crack guideline changes on Friday, October 15.  The changes are temporary only -- which means they'll have to be re-proposed as permanent guideline changes on May 1, 2011 -- and the changes are NOT retroactive.

The changes are the result of the Fair Sentencing Act (FSA), which was signed into law on August 3.  The FSA increased the crack amounts required to trigger mandatory minimums, narrowing the old 100-to-1 ratio between crack and powder cocaine to 18-to-1.  The FSA also ordered the Commission to change the crack sentencing guidelines and to create new sentencing enhancements -- bumping sentences up, for example, if the case involved violence or bribery of a law enforcement officer.  The question facing the Commission:  how closely should the new crack drug amounts in the sentencing guidelines match the 18-to-1 ratio?

The Commission's answer on Friday:  pretty darn close.  The Commission voted to change the crack drug charts in the guidelines to reflect a ratio of 17.9-to-1 throughout.  This essentially undid the so-called "crack minus two" amendment from 2007.  FAMM argued against such a result, but to no avail.

Read more about it in this Washington Post article, and here's FAMM's summary of this complicated amendment.

One man’s criminal history sets him free

Last Friday, Thomas Perrin stood in a federal courtroom and won 14 years of his life back.

A Baltimore News article reported that Perrin was convicted in 2006 for possessing a firearm after being convicted of three prior drug or violent felonies. He was given a sentence enhancement under the Armed Career Criminal Act, which mandates a 15-year minimum term if the defendant is shown to be in possession of a firearm or ammunition after being previously convicted of three drug or violent felonies.

The problem: Perrin was never actually convicted of a third drug offense -- the felony was incorrectly recorded in a state records database.

Judge William D. Quarles reduced Perrin’s nearly 20-year sentence to six years.

"First off, I apologized to him"…Quarles said. He then congratulated Perrin for his persistence, which, he said, "pointed out that you cannot always accept the records at face value, and we need to be reminded of that sometimes."

What does Perrin’s case mean for others serving ACCA mandatory minimums?

FAMM member Garfield Redd is serving a 15-year mandatory minimum under the Armed Career Criminal Act (ACCA) for being a felon in possession of a firearm. In Redd’s case, the three prior drug or violent felonies needed to qualify for the ACCA charge were never verified with original documents. His sentencing judge instead relied on unsupported statements from the probation officer that appeared in the Presentence Investigation Report. Mr. Redd is challenging his case in the Supreme Court. Read FAMM’s amicus brief in the case of Redd v. United States. 

FAMMGram points out power of people

The latest issue of FAMM's newsletter, the FAMMGram is online now.  It celebrates FAMM supporters across the country who called, wrote, emailed and spoke out on behalf of sentencing reform, resulting in three major victories in 2010. The FAMMGram explains the wins and how our supporters helped make them happen.  It also includes an update on the new crack law; details on Massachusetts sentencing reforms; news on FAMM's work in the U.S. Supreme Court; profiles on two individuals serving unjust mandatory minimums, and more.  Click here to read the newsletter.

While Most New Yorkers are Focused on the Upcoming Yankees series...

...the New York Post ran this article today about a new blue-ribbon panel that has formed to re-examine the "mess" that is New York State's sentencing system. The moves comes a year after Empire State lawmakers wisely repealed the state's draconian drug mandatory minimum sentences. The new panel will include prosecutors, defense attorneys, and crime victim advocates. Equally important, it seems that all aspects of sentencing reform are on the table, including consideration of alternatives to incarceration.

Friday Round-Up

It's that time again, time to round it up for the week:

Looking into Edward Norton's new Stone movie a bit more, we found this interesting little piece from Starpulse.com about how interviews with prisoners led to major re-writes of the film's script. You'll never hear the word "vegetarian" the same way again.

Attorney General Eric Holder spoke at the European Offenders Employment Forum about prisoner reentry, the Second Chance Act, and the prison addiction problem that is wreaking havoc not just here but on the other side of the pond, too.  Our favorite selection:

Here in the United States, the cost of housing state prisoners has quadrupled over the last two decades. In fact, state spending on corrections has grown at a faster rate than nearly any other state budget item. Last year, the price tag on state prisons topped $50 billion. The current pace of prison growth is – quite frankly – no longer economically sustainable. And from a cost-benefits perspective, it’s simply indefensible. The same is true across Europe. In fact, as my U.K. counterpart, Kenneth Clarke, has pointed out, it now costs more to put someone in prison than it does to send a boy to Eton.

Strong words, but it will take more than better reentry policies to make our prison populations manageable again -- we need to rethink how many people we're sending to prison, and how long we're sending them there.  No reentry is needed, after all, when a person doesn't have to reenter. 

And news flash:  the U.S. Sentencing Commission's agenda for its next public meeting, on October 15, includes a possible vote to create crack sentencing guideline amendments that would adjust the current crack quantities to the new 18-to-one ratio set up in the Fair Sentencing Act.  Who knows if such changes will ever be made retroactive, but we're excited to see what the Commission does, and we'll have updates available at www.famm.org. 

Edward Norton Loves Prison

Ron Batzdorff © 2010 Stone Productions, LLC

For his new film Stone, actor Edward Norton went straight to prison for his research.  Yesterday, Norton appeared on the Diane Rehm show and discussed how he visited prisons in Michigan and met with prisoners to prepare for the title role as Stone, an arsonist attempting to get his parole officer (Robert DeNiro) to approve his early release.  And if the names "Norton" and "DeNiro" in the same sentence aren't enough to have you queuing up to see this film, I don't know what is.  Unfortunately, the film has a limited release, so some of us may have to wait until it hits Netflix to see it.

In the first ten minutes of the Rehm interview, Norton gives a fascinating and surprisingly warm description of what it was like to talk to prisoners -- their interest in meeting him, their desire to share their stories, their contributions to his take on the character, their anxiety about their own upcoming parole hearings.  Norton evidently sees the prisoners he met as human beings with worthwhile stories to share.

Famous for his turns as sociopath killer Aaron in Primal Fear and the I'm-not-sure-who-you-really-are narrator of Fight Club, we're not the first to observe that Norton has done a significant number of films involving the criminal justice system and prisons.  American History X and 25th Hour, in particular, provide harrowing displays of some of the dilemmas facing those who break the law and face time behind bars.  It makes us wonder:  What does Mr. Norton think of America's status as the world's leading jailer?  What does he think of our draconian sentencing policies?  Those are some opinions we'd love to hear the next time he talks about Stone.

A Judge Going to Jail?

Some rather shocking news about a federal judge in The Atlanta Journal-Constitution:

A longtime federal judge was freed on a $50,000 bond Monday after his arrest on federal charges that he bought cocaine and other illegal drugs while involved in a sexual relationship with an exotic dancer for the past several months.  

Senior U.S. District Judge Jack T. Camp Jr. was arrested late Friday night near Sandy Springs. Camp, 67, is accused of purchasing cocaine and marijuana, along with prescription painkillers, which he shared with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta, according to an FBI agent’s affidavit for his arrest.

According to the article, police also found a loaded handgun in the judge's car when he and the dancer were arrested after purchasing drugs from an undercover agent.  The complaint includes charges of drug possession and gun possession as a drug user (which, yes, is actually a crime -- see 18 U.S.C. sec. 922(g)(3) if you don't believe us).


Most interestingly, Senior Judge Camp is known as a tough sentencer.  All other morals (and judgments) aside, the moral of this story is that drugs can get a lot of people involved in the criminal justice system -- even, sometimes, the people running it.  That's why FAMM is so devoted to telling individual stories of sentencing injustice, and why so many of our members are prisoners or their loved ones.  The message of those stories -- and perhaps of this one -- is that tough sentencing laws can seem just fine...until they happen to you.

The Annual Sentencing Tune-Up

The federal sentencing guidelines are like a car:  they need regular tune-ups to stay in good shape.

Fortunately, there's a mechanic for the sentencing guidelines: the U.S. Sentencing Commission.  Each summer, it announces its priorities for tuning up the guidelines over the course of the upcoming year.  Like any good mechanic, the Commission lets the public know what it's considering putting on the agenda for investigation and/or repair and allows the public to comment on it.  The Commission's priorities and comments on those priorities set the tone for the entire year of guideline changes ahead.

Normally, the public comments on the Commission's suggested priorities are not put on the Commission's website, but we were pleasantly surprised to read all of this year's comments here.

Some noteworthy picks:  Senator Patrick Leahy (D-VT) calls for more alternatives to incarceration and tougher sentences to deter corporations from committing environmental crimes; FAMM urges expansion of the safety valve and retroactive application of any crack guideline changes; and, interestingly, the Probation Officers Advisory Group suggests putting a sentencing cap on possession-only cases involving child pornography.

Lots for sentencing nerds to enjoy here!

Who's Working for Justice Now?

What do prescription drugs, Florida, and long mandatory minimum sentences all have in common?

FAMM, that's what.  We're targeting that state's draconian (25 years!) sentences for trafficking prescription drugs.  This New York Times article gives just one example of how cracking down on illegal pharmacies and prescriptions is having all kinds of unexpected consequences around the country.  In the article, a man goes without his pain medication for a weekend because a nursing home doesn't have a doctor on hand to write a prescription and is afraid to call one in without it.  In Florida, we've heard stories of people getting 15- and 25-year mandatory minimum sentences for being addicted to painkillers that were once legitimately prescribed or for using another person's painkillers to attempt suicide.  Mandatory minimums, of course, don't allow courts to make distinctions in these kinds of exceptional cases.

Deborah Fleischaker directs state legislative affairs for FAMM and is working to get rid of Florida's mandatory minimums for prescription drug crimes.  She took a few minutes to tell us what drives her:

Why do you work for FAMM?

Deborah:  I work for FAMM because I believe that each one of us has a responsibility to make our society better.  There are many ways to do this, but I choose to focus on making our criminal justice system more rational, more fair, and more humane.

What does a day in your life at FAMM look like?

Deborah:  Every day looks different, which is part of what I love about my job.  I speak with members, I plan legislative strategy, I learn about sentencing reforms across the country, and I meet with policymakers.  Each part of my job is different, and each is interesting in its own way.

What is your favorite part of your job?

Deborah:  Winning!  There is nothing like seeing the hard work of so many people pay off with a legislative accomplishment.  Just knowing that I’ve helped make the laws fairer for thousands of people is incredibly rewarding.

What's the most difficult part?

Deborah:  Talking to the family members of people caught up in the criminal justice system.  There is so much pain and so much unfairness and I wish there was more that we could do.

What don't most people know about sentencing reform, but should?

Deborah:  I wish people understood how moved legislators are by personal contact from their constituents.  It may be scary to write and call legislators, particularly if you have never been politically active before, but it really makes a difference!

Will Voters Care About Crime in 2010 Elections?

The 2010 elections are all over the news (especially in Washington, DC), so it seems a good time to ask:  is crime an issue in this election season?

My gut reaction is to say no, but why take my word for it?  I checked Gallup, a polling group you may have heard of now and again, just to be sure. These Gallup poll results from September 21 show that I'm right.  But just how far crime will be from the minds of those stepping into voting booths next month may surprise you.  In short, it won't be on their minds.  Crime didn't make the top 10.  Full results show that crime clocks in at # 12 on the list of non-economic concerns, a distant runner-up to concerns like war and healthcare.  Top voter concerns are the economy, jobs, and dissatisfaction with the government.

None of this should be news to anyone with access to a television, radio, or the internet, but it's still worth mentioning.  The fears of crime are just not a driving force in this election -- which means no matter who gets elected in November, Congress should take some bold steps on sentencing reforms in the next two years.  Congress passed crack reforms this summer with nary a reproach from the media or the public.  More importantly, sentencing reforms that are evidence-based and cost-effective could actually address the concerns voters care most about right now:  a struggling national economy and a crippling national debt.  

--Stowe