Good and Mad Reading for the Weekend

FAMM's offices will be closed starting December 24 and will reopen January 3, 2011, so have a happy holiday season and a very merry New Year!  But before we leave, we'll give you some good and mad reading to send you into the holidays steaming...

Who controls who gets indicted and who doesn't, and for what?  Prosecutors, of course, and one of the methods they use to bring charges is the grand jury system. This disturbing piece from Slate tells the story of Siobhan Reynolds, founder of the Pain Relief Network, which advocates for patient access to pain-relieving treatments and medications.  The problem?

Over the last decade, the federal government has been targeting doctors who treat pain patients with prescription drugs like Percocet and Oxycontin. Advocates like Reynolds argue that doctors who overprescribe painkillers should be disciplined by medical boards if they are sloppy or unscrupulous, not judges and prosecutors. Dumping them into the criminal justice system puts drug cops in the position of determining what is and isn't acceptable medical treatment. One promising treatment of chronic pain known as high-dose opiate therapy, for example has all but disappeared because doctors are too terrified of running afoul of the law to try it.

The article tells an intriguing tale of painkillers, patients, doctors, prosecutors, and the secrecy (and potential abuse) of grand jury proceedings.  The article doesn't discuss sentencing, but it shows how complex painkiller cases can be.  Where's the line between medicine and crime?  How can patients get the treatment they need when the government might prosecute their doctor for giving it?  How can the government go after illegal pill mills without depriving patients of the help that might make their lives livable?

One thing seems clear to us:  mandatory minimum sentences are the worst of all possible worlds for people whose convictions arise out of such a morass of complicated facts and competing interests.  Mandatory minimums are one-size-fits-all sentences, triggered by facts such as the number and type of pills involved.  Unfortunately, those facts tell only a fraction of many, many pain pill stories.  Giving judges sentencing discretion allows them to tailor sentences in pain cases to fit all the facts and circumstances, including the needs of the patient and the intent of the doctor.

Sentencing Reform is Not a Liberal or Conservative Issue

Says FAMM President Julie Stewart in this opinion editorial from Main Justice, lauding the creation of the conservative Right on Crime campaign to reform America's increasingly expensive criminal justice system.

Having the world's highest incarceration rate and number of prisoners is nothing to boast about -- those numbers mean we are spending a fortune on prisons, destroying families, and wreaking havoc on state budgets in the process.  There are more effective, less expensive solutions that people on both the right and the left should get behind.

Crack Sentences Still Tough

That's the headline of this Wall Street Journal article from the tireless Gary Fields, who uses several cases to show how failing to make the Fair Sentencing Act's crack sentencing reforms retroactive is leading to different sentences for similar crimes -- just because those crimes occurred on different dates:

The Fair Sentencing Act passed this summer knocked down the requirement of long prison sentences for possession of crack cocaine, but a quirk in how the law was written has resulted in some defendants being sentenced under the old rules—and the situation could continue for years.

Lawmakers who backed the change, with the support of the attorney general and federal sentencing officials, aren't pleased with the outcome. They said the new guidelines rectified an injustice born during the drug wars of the 1980s. Instead, the snafu has created a parallel universe where defendants face different rules for the same crimes—sometimes in front of the same judge—because their offenses were committed at different times.

The cause of the problem: Congress didn't say whether the Act should apply to crimes committed before Aug. 3, when it was signed into law. Penalties for any repealed law remain in place for acts committed under that statute, unless lawmakers "expressly" establish otherwise, according to a federal statute.

And because prosecutors have a five-year statute of limitations to file charges for most federal crimes, people accused of committing crack-related offenses before the revision are subject to the old rules. ...

Early next year, in Bridgeport, Conn., Steven Singh, 32, and Marvin Conner, 32, will face the same five-year minimum sentence on the same day, before the same judge, for two drug crimes of different magnitude. Both pleaded guilty in October, Mr. Singh to possession with intent to distribute 15.8 grams of crack cocaine and Mr. Conner for intent to distribute 39 grams. Mr. Singh's offense occurred in Feb. 2009, putting him under the old law, which doubled his likely sentence. Mr. Connor's offense occurred at least partially after Aug. 3.

In Maine, U.S. District Judge D. Brock Hornby recently broke from the pattern, ruling in October that he would sentence William Douglas under the new law for an older crime. Mr. Douglas was convicted of possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher law should be imposed, saying, "Congress stated its goal was to restore fairness to Federal cocaine sentencing. But what possible reason could there be to want judges to continue to impose sentences that are not fair over the next five years while the statute of limitations run?"

An Example to Follow

Long-time FAMM friend Kemba Smith celebrates the 10-year anniversary of the commutation she received from President Bill Clinton with this moving piece on CNN today.

Kemba Smith Pradia

Kemba uses the story of her rehabilitation and commutation to urge President Obama to build on the non-retroactive crack reforms passed earlier this year by commuting the sentences of crack offenders who won't benefit from the new law:

That there was bipartisan support for crack cocaine sentencing reform this year, a time of heightened political discontent, is a testament to the intolerable nature of these excessive sentences. But the Fair Sentencing Act is not retroactive, and so it does not help anyone serving time today under the law that both Congress and the president agree is unfair. This cruel treatment should not be allowed to continue, and my experience should serve as an example.

Through the power of commutation, Obama can provide relief to prisoners serving excessive sentences. While the president's clemency track record is bleak -- he has yet to issue any commutations since taking office -- I am hopeful he will see that justice requires his attention and that changing the lives of men and women in prison deserves his action.

Well said.  The pardon power -- which includes the power to shorten (or "commute") sentences for rehabilitated or unjustly sentenced offenders -- has long been used to fix flawed sentences, especially when the law provides no other relief. Congress should make the recent crack law reforms retroactive so that everyone gets their benefit. But unless and until Congress does, President Obama should remember the pardon power -- and use it to bring relief to people serving unfair sentences like the one Kemba is no longer serving.

Numbers Galore

This new report from the Bureau of Justice Statistics provides the numbers on what happened to prison and jail populations during 2009.  Here are some of the highlights from the report, found in BJS's press release:

The growth in the prison population during 2009 was the slowest annual increase in the current decade and marked the third consecutive year of a declining rate of growth in the prison population. While the federal prison population increased by 3.4 percent (up 6,838 prisoners), the state prison population had the first measured decline (down 0.2 percent or 2,857 prisoners) since 1977.

Twenty-four states reported declines in the prison population, with the largest declines in absolute number of prisoners in Michigan (down 3,260) and California (down 2,395). Twenty-six states reported increases in their populations; Pennsylvania (up 2,214) and Florida (up 1,527) had the largest increases.

At yearend 2009, the imprisonment rate—the number of sentenced prisoners per 100,000 U.S. residents—declined for the second straight year, falling to 502 per 100,000 from a peak of 506 per 100,000 in 2007.

The decline in the number of state prisoners occurred as the number admitted into state prisons decreased. During 2009, state prison admissions decreased by 2.4 percent (totaling 674,707). New court commitments (down 1.3 percent) declined for the third straight year during 2009, and parole violators (down 4.5 percent) decreased for the first time since 2003.

While more than half of states reported decreases in admissions to prison, California reported the largest decline (11,122 fewer admissions), which was about four times the decline reported in any other state. The decrease in admissions in California was led by a drop in the number of parole violators returned to prison (down 9,668).

It's interesting to have this data released on the same day that we get the results of the 2010 census, which clocks America in at a population of 308,745,538.  Those census results also show that states like Ohio, New York, and New Jersey will lose seats in the U.S. House of Representatives, while states like Texas, Florida, and Nevada will gain seats.  That could certainly lead to some more shake-ups in Congress over the next decade.  If the BJS numbers are indicative of trends, it appears that states are slowly downsizing their prison and jail populations -- probably due to budget concerns and the recession.  The federal prison population is still growing, though.  Maybe a new year, a new decade, and new examples in the states will convince Congress to reevaluate our country's love affair with prison-packing policies like mandatory minimum sentences.

President Obama, THIS is How You Use Your Pardon and Clemency Power

NJ Gov. Chris Christie

Putting an end to a case we blogged about recently, New Jersey Gov. Chris Christie today commuted the sentence of Bryan Aitken from seven years to time served. His long sentence was a disgrace - the guns he was charged with possessing were bought legally in Colorado and were unloaded and locked in his trunk. Commuting his sentence was the right thing to do, but we know some politicians have a hard time doing even the easy things.

Bully for Governor Christie!

Crack Retroactivity Bill Introduced!

On Friday, Representative Bobby Scott (D-Va.) introduced a new bill to make the Fair Sentencing Act of 2010 (FSA) retroactive.  If passed, the new bill would allow federal crack offenders sentenced before the FSA became law (in other words, before August 3, 2010) to receive the benefit of the FSA's reduced crack-powder ratio of 18-to-one.  Read more at FAMM's website here.


The retroactivity bill is H.R. 6548, the Fair Sentencing Clarification Act of 2010.  It is not a law yet -- before that happens, it must be passed by both houses of Congress and signed into law by President Obama, and that process could take a long time.  Unfortunately, what Congress doesn't have right now is time -- they are expected to conclude business this week. And on December 31, all bills that haven't passed die -- meaning we will have to start from scratch on retroactivity when Congress returns in January 2011.


Nonetheless, the introduction of the bill is a great chance to educate lawmakers about the need for retroactivity.  You can contact your lawmaker today and tell them to support H.R. 6548 and to support quick passage of a similar bill in 2011.  All the how-to you need is right here.

Right on Crime ... on the Right

If you haven't seen it yet, we suggest you click on over to Right on Crime, a new project, blog, and website launched by the conservative Texas Public Policy Foundation.  Right on Crime (ROC)'s Statement of Principles explains why it feels the need to get conservatives involved in criminal justice and sentencing reform:

Conservatives correctly insist that government services be evaluated on whether they produce the best possible results at the lowest possible cost, but too often this lens of accountability has not focused as much on public safety policies as other areas of government. As such, corrections spending has expanded to become the second fastest growing area of state budgets—trailing only Medicaid.

Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending. That means demanding more cost-effective approaches that enhance public safety. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered. 

In the words of this analysis of the ROC from The Crime Report, "Conservatives advocate for this kind of accountability in nearly every other area of government. Why not criminal justice?"

Why not, indeed?  Read FAMM's response to the new ROC right here.

FAMM is a nonpartisan organization, and we've never believed that sentencing reform is a liberal or conservative issue -- it's an issue for all Americans and all parties, and the costs of excessive and ineffective sentencing policies (both human and fiscal) are too high to keep ignoring. We welcome the ROC into the sentencing reform fray.

Good and Mad Reading for the Weekend

Maybe this article won't make you good and mad -- maybe it will just make us thoughtful and circumspect.  And that's not a bad thing, either.

The title of this piece from The Washington Times is "The Balance Between Mercy and Justice," and it tells the tragic story of Florida DUI offender Baruch Zegeye, who, at 17 and while under the influence of alcohol and Xanax, killed a man in a car crash.  A first-time offender and "A" student who shows deep remorse and has earned the forgiveness of his victim's family, Zegeye is facing 14 to 20 years in prison -- though the judge can give him less time.

What should the sentencing judge do?  What would you do?

Cases like this remind us why we believe in individualized sentencing:  because each case is unique; because sentencing deals with infinitely complex humans and enormously complicated moral questions; because one-size-fits-all punishments leave no room for a balanced outcome.

Wanna Save? Invest!

That's the message of FAMM President Julie Stewart, who, in this Huffington Post piece, urges Congress to create a national criminal justice commission that will more than pay for itself in the future -- by providing cost-saving, more effective sentencing reform suggestions for both the states and the federal government.

Sounds a lot like "paying it forward," doesn't it?  The bill that would create the commission is S. 714, the National Criminal Justice Commission Act of 2009, and Congress has only a few days left this year to pass it!

A Tale of Two States

Listen to the calm, cool, collected voice of Indiana Governor Mitch Daniels (a Republican) in this excellent article from the Indianapolis Business Journal:

Sweeping changes proposed for Indiana's criminal sentencing system won the endorsement Wednesday of Gov. Mitch Daniels, who said that if lawmakers enact the changes they would hold down the state's ballooning prison population and save taxpayer money by reducing the need for more prisons. ... "The only way to continue protecting Hoosiers and making Indiana safer and doing that in a way that also protects Indiana taxpayers I believe is to embrace this package of reform," Daniels said at a news conference in his Statehouse office that included lawmakers.

That "package of reform" refers to sentencing reform suggestions in a forthcoming joint review and report from the Pew Center's Public Safety Performance Project and the Council of State Governments (CSG) Justice Center.  According to CSG's press release, the report identifies Indiana's top challenge as "Indiana’s one-size-fits-all drug sentencing laws have led to even minor, nonviolent drug offenders’ spending more time behind bars than some violent and sex offenders."  Watch Governor Daniels discuss the problem -- and some potential solutions -- below.

Compare Indiana's response to that of Arizona's prosecutors, who raised a ruckus and all but called lawmakers soft on crime after the introduction of cost-cutting sentencing reform legislation there this week.

Anyone want to bet on which state reforms its system faster, saving money for its taxpayers and producing better justice for its citizens?

The Nation on Drugs

Keep your eyes peeled for The Nation's December 27 issue, which is devoted to how America can end its  War on Drugs.  The magazine's title is "Dare to End the War on Drugs" and features articles from the heads of stalwart drug policy groups like Drug Policy Alliance and The Sentencing Project.  The head of the latter, Marc Mauer, does a nice job addressing the unjust sentences that have become part and parcel of the War on Drugs.  While narrowing the crack-powder disparity with passage of the Fair Sentencing Act of 2010 was a good first step, says Mauer (citing a FAMM Profile of Injustice and one of our biggest legislative victories, reform of Michigan's 650 Lifer law), it shouldn't be the last:

As welcome as the reforms are, they leave in place the broad structure of mandatory sentencing for most drug offenses, under which judges have no discretion to consider mitigating circumstances such as the defendant's age, parenthood or history of abuse. Such policies have produced outcomes as bizarre as the fifty-five-year prison sentence imposed in 2004 on Weldon Angelos, a 24-year-old music producer in Utah with no prior felony convictions. On three separate occasions, Angelos sold about $350 worth of marijuana to a police informant. At each sale, Angelos possessed a gun, which he neither used nor threatened to use. Yet under the terms of federal mandatory penalties, Judge Paul Cassell, a George W. Bush appointee, was required to impose what was essentially a life sentence, which he called "unjust, cruel, and even irrational."

FAMM's Profiles of Injustice include many other examples of crazy sentences that are creating crazy costs for taxpayers.  Next year is the 25th anniversary of federal mandatory minimum sentences for drug crimes.  Twenty-five years is long enough -- and expensive enough -- to know that this policy doesn't work and destroys lives, families, and communities.

OK, Congress, do what OK is doing

FAMM President Julie Stewart urges Congress to follow Oklahoma's lead in this letter to the editor published on December 11.  The letter is in response to an article in The Oklahoman describing the Sooner State's decision to reevaluate mandatory minimums in an effort to cut their expanding corrections budget.  Congress could follow Oklahoma's lead by passing the National Criminal Justice Commission Act of 2010, which would create an expert commission that would do a full review of America's criminal justice system -- and hopefully produce recommendations for a fairer and more cost-effective approach to incarceration in our country.

States are called the "laboratories of democracy" -- but that doesn't mean the federal government can't do some of its own experimenting and researching, too!  In fact, the Commission would provide research and recommendations for both state and federal criminal justice systems, so everybody wins if the Commission is created.

Good and Mad Reading for the Weekend

Normally we wait until Friday to post the Good and Mad Reading for the Weekend, but this lengthy article from USA Today on prosecutor misconduct is enough to get the blood boiling even on a Thursday.

Prosecutors have enormous -- and pretty much unchecked -- power.  They decide whether a case goes to federal or state court.  They decide who is charged.  They decide what the charges are -- and if those charges are tied to mandatory minimums, prosecutors are also deciding what the defendant's minimum sentence will be.  So, it begs the question -- who polices prosecutors?

In the federal system, prosecutors police themselves.  The Department of Justice has an internal office, the Office of Professional Responsibility, which handles and (sometimes) investigates complaints about bad prosecutors.  Is that enough?  USA Today looked at hundreds of investigations in an attempt to answer that question, and what it reports isn't pretty.

Governor Paterson's Pardons

Outgoing New York Governor David Paterson issued an interesting round of pardons this week.  What is particularly interesting is the in-depth, heartfelt reasons the Governor released along with the grants, describing why he thought these were cases that deserved a second chance and a clean slate.  Namely, Governor Paterson granted the pardons to help people avoid deportation -- one of the more onerous (and sometimes downright devastating) collateral consequences of a conviction.

You be the judge:  What do you think of Governor Paterson's pardons?

What Is Your State Cutting?

Besides the obvious (more money), many states are putting some interesting things on their holiday wish lists this year, as there's no end in sight for budget woes they're facing and (gulp) those woes may only be getting worse.  This article from the New York Times doesn't discuss sentencing or prison costs much, but it does put the nation-wide state budget crisis into new perspective.

So, what's it going to be, cash-strapped states?  More prisons?  Or smarter, more cost-effective, more rational sentencing policies?  

Overcrowding, Oklahoma-style

“Prison population grows in three ways: the number of people coming in, the length of sentences and the number of people coming out,” Jones said. “In all three categories, we're striking out.” Jones is Justin Jones, the director of Oklahoma's Department of Corrections. A very thorough story about the massive overcrowding problem confronting OK state leaders can be found here. Kudos to The Oklahoman for a balanced explanation of the situation.

STOP THE PRESSES! Pardons Granted!

Disregard today's earlier post, because President Obama has issued his first pardons!

The grants go to nine people whose cases are described briefly in this press release from the Department of Justice.  All of the offenses appear minor (e.g., mutilating coins), and four of them involved drugs.  The oldest conviction dates back to 1960 (a whopping 50 years ago); the most recent to 1999 (11 years ago).  In all but three of the cases, probation was the sentence, and the longest term of incarceration was two years.  In short, none of these cases appears to have been controversial or a "tough call."

FAMM applauds President Obama for using the pardon power.  Though he waited a long time to do so, we imagine that the recipients of the pardons are thrilled to have closure and a clean slate after all these years.  The collateral consequences of convictions are so onerous -- and a pardon is the only way out of them -- that President Obama should keep granting pardons so that rehabilitated people can keep moving forward with their lives.

Of course, we are deeply disappointed that there are no commutation recipients on this list.  We find it impossible to believe that of the thousands of federal offenders receiving harsh mandatory sentences each year, the Office of the Pardon Attorney could not find a handful of deserving people to recommend for commutations.  President Obama should keep the pressure on the pardon attorney's office and ensure that commutation applicants are getting fair and thorough consideration.  There are deserving people serving too much time in prison, and for many of them, a commutation is their only way back into society early.  With a close and impartial inspection, we believe President Obama and the pardon attorney's office will find that many of these commutation applicants are ready to rejoin society and lead productive lives. 

Good and Mad Listening for the Weekend

Will we see any pardons or commutations from President Obama this holiday season?

Not unless there are some major shake-ups in the way the Obama Administration and its Department of Justice handle clemency requests, according to this radio show, which aired yesterday on the Kojo Naamdi show (if you prefer reading, here's the transcript). Guests Samuel T. Morison and P.S. Ruckman discussed the lack of pardons and commutations from President Obama -- and how it is the Department of Justice that is largely to blame.

Sam Morison is a former attorney with the Office of the Pardon Attorney (OPA), which reviews clemency applications and makes recommendations on clemency to the president.  The problem:  OPA sees its job as denying clemency and reinforcing the convictions prosecutors have won, so virtually all applications are uniformly denied.  P.S. Ruckman runs the Pardon Power blog, which has a whole weekend's worth of statistical data on clemency to read at your leisure.

California Scrutinized by Supreme Court

Max Whittaker for The New York Times

California's prison system is so packed -- and its health care so poor -- that a federal court has held that prison conditions there violate the Constitution's ban on cruel and unusual punishment.  The federal court's solution:  it ordered California to release about 40,000 inmates.  That court order is being challenged in the U.S. Supreme Court in the case of Schwarzenegger v. Plata, and this Sacramento Bee article does a nice job explaining how the justices narrowed in on what's at stake, in yesterday's oral arguments:

In a closely watched case, Republican appointees challenged the proposed prisoner release plan as a threat to public safety while Democratic appointees suggested it was necessary to alleviate horrific penal conditions. ... 

"When are you going to avoid the needless deaths?" Justice Sonia Sotomayor asked Carter G. Phillips, the attorney representing California. "When are you going to avoid or get around people sitting in their own feces for days in a dazed state?" ... 

Chief Justice John Roberts Jr. added his own conservative-tinted concern about activist judges taking over jobs best done by elected officials. "The point is, this is a budget prioritization that the state has to go through every day, and now it's being transferred from the state Legislature to federal district courts throughout the state," Roberts said skeptically.

What do you think?  If state legislators refuse to control prison overcrowding, should courts pick up the slack and do it for them?

Of course, California wouldn't have this mess on its hands if it adopted smart-on-crime policies instead of relying on long mandatory minimums like its infamous "three strikes" law.  Mandatory minimums fill prisons fast -- and as this case shows, full prisons produce their own special problems.