Monday, January 31, 2011

Prison Story Gives New Meaning to Expression "Rockefeller Republicans"...

Stowe, when I read your piece about this story in New York, I couldn't help but think of Supreme Court Justice Kennedy's speech last year in California. He called out the CA correctional officers union for turning the Golden State's sentencing scheme into a jobs program. From the LA Times:

"California now has 185,000 people in prison at $32,500 a year" each, he said. He then urged voters and officials to compare that expense to what taxpayers spend per pupil in elementary schools.

 "The three-strikes law sponsor is the correctional officers' union and that is sick!" Kennedy said of the measure mandating life sentences for third-time criminal offenders.
It made me think of something else, too. We on the Right are getting ready to celebrate the legacy of President Ronald Reagan on February 6, the date that would have been the late president's 100th birthday. (Let's face it, we will find any excuse to celebrate Reagan, but this is a pretty good one.)

When Goldwater and Reagan were trying to rally the GOP to the conservative wing in the 1960s, their nemesis was the moderate governor of New York, Nelson Rockefeller. You were either a Goldwater/Reagan Republican or you were - say it with a sneer - a Rockefeller Republican.

Fairest Stowe, it appears from the article you highlighted about prison cuts in New York State that the term Rockefeller Republican has taken on a new meaning. It now can be used to describe GOP lawmakers who  wish the draconian Rockefeller drug laws were still in effect so that their local prisons would be brimming with addicts and non-violent inmates. These purportedly Republican legislators are willing to keep taxes higher for all New Yorkers in order to keep their local prisons open and their constituents employed.

As Justice Kennedy would say, that is sick.

- Ingersoll

Cut Anything...Except Prison Jobs?

Every governor wants to save money right now. Some want to do it by cutting corrections budgets.  But with unemployment so high, how many are willing to do it by cutting corrections jobs


Back on January 5, New York Governor Andrew Cuomo walked right into the ring with both fists up and said he would close prisons even if it meant lost jobs: 
Nearly a month ago, Gov. Andrew M. Cuomo made a call to close some prisons an emotional capstone of his first annual address to the Legislature, vowing, to sustained applause from fellow Democrats, that underused prisons would no longer be “an employment program” for upstate New York.
The issue has long prompted resentment, particularly for families of New York City residents who are shipped hours north of the city to be incarcerated, to places like the Clinton Correctional Facility in Dannemora, which is perched in the northern Adirondacks. ...
[A]n incarceration program is not an employment program. ... If people need jobs, let’s get people jobs. ... Don’t put other people in prison to give some people jobs. Don’t put other people in juvenile justice facilities to give some people jobs. That’s not what this state is all about, and that has to end this session.” 
Bold words, but according to this article in The New York Times, Governor Cuomo is starting to get pummeled by -- surprise, surprise -- upstate Republicans who don't want to see those prison jobs go.  

In 2009, New York repealed most of its infamous Rockefeller drug laws, which had some of the country's harshest mandatory sentences for nonviolent offenders.  Those laws were almost absurdly unjust, and New York chose a smarter, more humane path that gave judges flexibility and made drug treatment more available.

Now, apparently, New York is reaping the benefits of making better sentencing choices.  It means some prisons will close and some jobs will be lost.  Taxpayers will save money while offenders get sentences that actually make sense and help them avoid more crime in the future.  No one said restoring sentencing sanity to our system would be easy, or pleasant, or popular, or that it wouldn't take some sacrifices by people on the system's front lines.  

But shouldn't the goal of a prison system be to work its employees out of a job?

If that is the standard for a justice system that works, my only words to New York are these:  Congratulations.

-- Stowe  

Have You Read the News Today?

You should, because there's a lot of good news out there about FAMM and sentencing reform right now:

  • In Indiana, FAMM urged state legislatures to support Republican Governor Mitch Daniels' efforts to use smarter sentencing policies for nonviolent offenders to cut the state budget and reduce the prison population;
  • In the Los Angeles Times, this excellent article applauds the emergence of conservatives in the sentencing reform movement, quoting FAMM President Julie Stewart:  "Julie Stewart, founder of Families Against Mandatory Minimums, even believes that Republicans, with their tough-on-crime credentials, may have a Nixon-in-China cover to push reform further than Democrats. 'There is a safety conservatives have," she said. "And for better or worse, Democrats don't always have that luxury.'"
  • In Massachusetts, Governor Deval Patrick's FAMM-supported sentencing reform package has been getting lots of attention, particularly for proposing reducing the large urban territories covered by drug-free school zone laws:  read about it here and here, in The Republican and the Boston Globe.  FAMM's thoughts:
Barbara J. Dougan, who is Massachusetts project director for the group Families Against Mandatory Minimums, said that at least 17 states, including Massachusetts, have begun reexamining mandatory drug sentencing laws or have repealed some of them. Studies have shown that such laws tend to unfairly target urban communities and, as a result, minorities who are more likely to live in the city, Dougan said. 
What the governor is proposing in this bill is right in line with the national trend,’’ Dougan said. “A lot of this has been a response to states not being able to balance their budgets and having crushing correctional costs that are not needed. When you cast a wide net . . . you get some people who deserve to be in jail for lengthy sentences, but you get far more who do not pose a risk to public safety.’’

Friday, January 28, 2011

Good and Mad Reading for the Weekend

There are 1.7 million children under age 18 who have a parent in prison in America.

When a parent goes to prison, it's not just the parent who goes to prison.  The families left behind -- and the kids in particular -- get locked up in their own sort of prison without walls.  The results are detailed in this excellent report from Justice Strategies, entitled "Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration."
When they do time we also do time. Just because we’re not in there doesn’t mean we don’t do time. Because you’re not with us, we also do time[.] -- Araya, a teen girl with an incarcerated father.
The report details the challenges faced by children of incarcerated parents whose experience of grief and loss is compounded by economic insecurity, family instability, a compromised sense of self-worth, attachment and trust problems, and social stigmatization when their parents are incarcerated. The report outlines the ways in which parental incarceration can influence negative outcomes for youth, including mental health problems, possible school failure and unemployment, and antisocial and delinquent behavior.
As with the punitive consequences of our mandatory sentencing and mass incarceration policies, the impact of parental incarceration falls disproportionately on children of color. African American children are seven times and Latino children two and half times more likely to have a parent in prison than white children. The estimated risk of parental imprisonment for white children by the age of 14 is one in 25, while for black children it is one in four by the same age.
Prepared by Patricia Allard and Judith Greene, “Children on the Outside” urges a shift from failed "tough on crime" policies toward a public health and safety strategy that includes evidence-based treatment options and reducing reliance on incarceration. The report provides concrete steps to moderate the negative impact of parental incarceration on children and points to existing and promising approaches for cost-effective criminal justice policies that promote community health and safety.
At FAMM, we know only too well how devastating incarceration can be for the whole family.  Our Profiles of Injustice tell not just individual stories, but also family stories.

As much as everyone talks about the huge financial costs of incarceration these days, lawmakers would do well to remember that the highest costs of bad sentencing policies are measured in human lives, not dollars and cents. 

Thursday, January 27, 2011

Taking the Ax to Justice's Budget

After President Obama's belt-tightening State of the Union Address, many are asking what will be cut in an effort to downsize the federal budget.

Over at the Department of Justice, it looks like they have their answer:

So the White House Office of Management and Budget, in discussions with departments and agencies, has proposed numerous cuts that could be included in the president's final budget proposal, to be sent to Congress in February. At Justice, according to internal documents reviewed by The Wall Street Journal, OMB's proposals include:
Increasing the amount of time deducted from prison terms for good behavior, which would immediately qualify some 4,000 federal convicts for release, and another 4,000 over the next 10 years.
Before any prisoners or their family members get too excited and think loved ones will be coming home tomorrow, let's remember how this works.  The key word here is "proposal."  That proposal may or may not ever become a reality.

Here's how this works.  Time off for good behavior -- known as "good time" -- is set by statute, at a maximum of 54 days per year.  Unfortunately, right now federal prisoners actually can only get up to 47 days per year because of some bad math (and cases) interpreting the law.  The only way to undo this interpretation of the statute and give qualifying federal prisoners the full 54 days is to -- you guessed it -- change the statute.  And only Congress can do that.  And that means going through the legislative process:  write a bill, introduce a bill, send it through committee, pass both houses of Congress, be signed by the President.  So far, there's no bill to change good time.  It's still just a proposal.

But it's a proposal FAMM is excited about, because we've been fighting for a 54-day interpretation of the good time statute for years now.

So, in other words, no one's going home tomorrow.

Which makes me irritated with the fearful tone of the Wall Street Journal as it questions whether prison sentences should be shortened.  An extra week in prison isn't cheap, people -- especially when we've got over 210,000 federal prisoners doing lots and lots of extra weeks in prison, and over half of them are drug offenders.  They're all coming home eventually.  With more good time available, they'll have bigger incentives to behave in prison and prepare for a law-abiding life after they leave.  And we'll save money.  

So the question really is, why wouldn't a person support more time off for good behavior?

-- Stowe  

Wednesday, January 26, 2011

Massachusetts Reform Set to Move

Good news in Massachusetts:  Governor Patrick Deval will be proposing a hearty package of sentencing reforms, including mandatory minimum sentencing reforms, in new legislation today:
Mandatory minimum sentences for drug crimes that don’t involve guns or children would be repealed, giving more discretion to judges, and certain drug offenders serving mandatory minimums in state prison would be eligible for parole after serving half their maximum sentence, under legislation Gov. Deval Patrick plans to file with his budget Wednesday.
Patrick’s plan will retain mandatory minimum sentencing for drug offenders who use a gun in connection with the crime and those who exploit children. Offenders convicted of crimes that did not involve violence, who did not possess a gun and who did not target children would become eligible for parole after serving half their sentences.
The governor rolled out the proposal Tuesday afternoon in advance of his annual budget filing, detailing standalone legislation that he will file that also lifts the prohibition on drug offenders from participating in work release programs or earning “good time” credits.
Further, the bill will shrink from 1,000 feet to 100 feet the drug-free zones around schools that trigger harsher penalties for drug violations occurring within those areas, according to an administration official.
All of that sounds good to FAMM:
"On the one hand, this is a bold move by the governor, but on the other hand it’s basic common sense. He’s merely trying to realign our drug sentencing laws so they are in sync with what we know to be true about who is sentenced to prison under the laws and what they need to succeed and not reoffend," said Barbara Dougan, state director for Families Against Mandatory Minimums.
Nothing is law yet -- this is just the first step.  But clearly, reform is poised to move in Massachusetts.

Tuesday, January 25, 2011

When Texas Talks to Florida...

...this is what it says:

Florida lawmakers heard testimony Monday from Texas state Rep. Jerry Madden, R-Plano, who sponsored prison reform legislation in his home state.
The overriding message: Save money by keeping people out of prison with programs that address drug addiction, alcoholism and mental illness.
Madden said prisoners can largely be divided into three categories: Those who will never return, those who are guaranteed to return, and those who won't return if they are enrolled in the right programs. It's the third category that gives you the most bang for your buck, he said, so it's worth it to invest in drug and alcohol treatment programs.
``This is being tough on crime. It's tougher for a drug guy to take drug treatment than to spend a year and a day in jail,'' Madden said. ``If someone's a drug addict, break their habit.''
The goal, he said, is to keep people out of prison and stop using taxpayer money to provide room, board and health care to people who are only a danger to society because they have substance abuse or mental health problems. ``If he's locked up in your prisons for that, why don't you treat him? Particularly if he's one of those guys that may or may not come back,'' Madden said. ``Don't spend one cent on a person who's always coming back, or the person who's never coming back.''
Madden also suggested giving judges more leeway in sentencing guidelines, creating school programs to stop high-risk children from becoming criminals, and changing penalties so that minor parole violations and possession of small amounts of drugs don't result in extensive time behind bars.
Read the whole thing in the Miami-Herald.  

Giving judges leeway to get around Florida's mandatory minimum drug sentences is going to be essential to cutting prison costs in the Sunshine State.  A single mandatory minimum of 25 years in prison for a handful of prescription pills -- even for a first-time offender like Scott Earle -- costs Floridians half a million dollars.  That's not smart (or tough) on crime.  But giving judges the power to pick a more effective drug treatment alternative or a shorter sentence is both smart and tough.

Floridians:  if Texas can get smart on crime, so can you.

Monday, January 24, 2011

Criminal Justice Reform is for Conservatives, Too

Whether one is a Tea Partier angry over unaccountability, 50% recidivism, and skyrocketing budgets or a social activist concerned over the safety of the community and the over-criminalization of our lives, the system is broken, and the means for fixing it exist directly within our philosophy.
The "our philosophy" refers to conservativism, and this blog post from American Thinker explains why conservatives, libertarians, and Tea Partiers should get on the criminal justice reform bandwagon.
The administration of justice is one of the few legitimate functions of government, says Americans for Tax Reform president Grover Norquist, "so conservatives ought to go and get those things right as well as focusing on what government ought not to do at all[.] ... We haven't looked at prisons with the same jaundiced eye that we look at other issues with."
Currently, state spending to build and support prisons is seconded only by spending on Medicaid. And with a 50% recidivism rate of released prisoners (44.1% within one year, 67.5% within three), Nolan asks, "What private company would stay in business with a 50% failure rate?" That this is tolerated in most states across the Union is incredible.
Indeed.

Friday, January 21, 2011

Good and Mad Reading for the Weekend

If only people were consistent in their mistrust of government: Parole board members are not to be trusted with discretion in granting parole, and judges are not to be trusted with discretion in sentencing convicted defendants; but prosecutors are invariably trusted with significantly increased discretion, despite their track records of abusing it. The illogic of popular, putatively tough anti-crime strategies has long frustrated death penalty opponents and other criminal justice reformers: People who tend not to trust the government with its civil, regulatory power, notably over business or health care, will trust it enthusiastically with awesome, inadequately checked prosecutorial power. They trust that it will prosecute and occasionally execute other people, (only very bad and guilty people) with consistent accuracy and fairness, despite all evidence to the contrary.
Read the entire (damning) article about how prosecutors mess up our justice system right here.

Thursday, January 20, 2011

Delaware Reformers Want on the Bandwagon



In this op-ed found on http://www.delaware.com/, Wilmington lawyers Victor Battaglia and Bernard Abelman urge Delaware policymakers to follow the lead of Michigan, Texas, and other states and reduce prison spending. Favorite paragraph:

The time has come to abolish all mandatory sentencing laws. With the appropriate guidelines Delaware judges, judges from our families, our neighborhoods and our communities have demonstrated both the ability and competence to incarcerate those who are a risk to our safety and to sentence those who do not pose a risk to everything from house arrest, probation with restitution, education and employment, supporting a family and averting contact with undesirable people.


All aboard!


Smart on Crime = Tough on Crime

AP Photo
An editorial in The New York Times praising Governor Mitch Daniels has led to some raised eyebrows -- from Mitch Daniels, of all people.

Governor Daniels' humorous response to the Times is over at The Daily Caller, and in it, the governor defends his attempts to make Indiana a state that is smart on crime, cutting prison costs for its taxpayers and giving low-level and nonviolent offenders the tools they need to stay out of the system:
Ordinarily, a kind mention in the New York Times — there have actually been a few, lately — sends me back for a serious rethink of whatever action or stance gave rise to the compliment. But this week’s support for our proposed criminal justice reforms in Indiana will engender no second thoughts, because the Times has it right — we can be a lot smarter about our incarceration policies.
During my transition to service in December 2004, I was told that we would need to build at least one new prison a year starting immediately. I said, “Uh, the state’s broke. I think we’ll need to find an alternative.” Six years later, we are housing 38% more prisoners without having built one additional cell. At a per day cost that is down around 30%, by the way. But even we are out of capacity utilization ideas.
Enter our friends from the Council on State Governments and the Pew Foundation. Their analysis shows that we are imprisoning, in our most expensive spaces, more people for relatively minor, non-violent offenses, like low-level property and drug violations, than most other states. Some of our guests are not with the state corrections system long enough for any rehabilitation, substance abuse counseling, or job training to take place. They’re only with us, as my guys say, “long enough to study under some real criminals.”
We applaud Governor Daniels for his efforts, but he's taking some flak at home from -- shocker -- prosecutors who claim the proposed reforms are "soft on crime."

It's time for a change in vernacular.  Who says the "tough" in "tough on crime" means long sentences?  Being "tough on crime" isn't about having the longest sentences in a five-state radius.  It also means stopping crime, reducing crime and recidivism.  Offenders who get the treatment and tools they need to lead law-abiding lives don't commit more crimes.  Some people follow the rules better if they stay in the community instead of going to prison. Being smart on crime is being tough on crime.

Wednesday, January 19, 2011

A Tale of Two Cases

We talk about all kinds of disparities in the sentencing world:  racial disparities, the crack-powder ratio disparity, judges who sentence differently in the same circuit court system, disparities among different circuit courts.  But there's another disparity out there that gets much less attention:  the difference in sentence lengths for the same crime, depending solely on whether you're convicted in state or federal court.

And if you're a child porn offender in Pennsylvania, it appears that you should want to be prosecuted in state court.

This lengthy but excellent article in the Wilkes-Barre, PA Times Leader, explains why by telling a tale of two cases:  one state defendant sentenced for possessing 507 child porn images, and one federal defendant sentenced for possessing 279 similar images.

Guess who got the longer sentence?  The man convicted in state court (for more images) got nine to 23 months in prison.  The man convicted in federal court (for fewer images) got 11 years.

And who controls whether a case stays in state court or goes to federal court?  Federal prosecutors.  And the decision to move a case into federal court is unreviewable and irreversible. So...
Why are federal sentences so much harsher?
Attorneys say the key difference lies in how federal sentencing guidelines are calculated.
A defendant’s sentence is based upon a numeric score attached to the offense, known as the offense level, combined with the defendant’s prior record score.
Once the base offense score is determined, a defendant may be subject to various “enhancements” that increase the total score, and thus, total sentence.
The concern with child porn cases, Cronin and Stabenow said, is the guidelines are written in such a way that nearly all defendants are subject to numerous enhancements.
For example, possession of child pornography typically has a base level score of 22, which equates to a sentence of 41 to 51 months for a first time offender. But if the defendant used a computer – which nearly all defendants do – he or she automatically gets a two-level enhancement, which add 10 to 12 months.
The guidelines are also largely tied to the number of images a person possessed. Once a defendant reaches 600 images, that triggers a five-level enhancement, which, with the computer enhancement, ups the sentencing range to 87 to 108 months – more than double the original sentence.
Read the whole thing and tell us what you think:
  • Is it good or bad that sentences for the same crime are different depending on what court a defendant lands in?  
  • And is it right that prosecutors make that decision?

Tuesday, January 18, 2011

Sentencing Nerd Red Alert!

Sentencing nerds, we have a red alert!  The guideline amendment process for 2011 has begun!

Confused about how the U.S. Sentencing Commission amends the federal sentencing guidelines?  Understand the process by reading this new factsheet on how a guideline gets changed, from proposal to retroactivity.

Each year, the U.S. Sentencing Commission suggests changes to the federal sentencing guidelines, which apply to all cases sentenced in federal courts.  Some changes are big; others are small; and some could mean reduced sentences for people already in prison or for people on their way to prison in the future.

Each January, the Commission starts the amendment process by proposing changes to the guidelines.  The public (including FAMM) gets 60 days to submit its thoughts, gripes, and comments on these "proposed amendments."  The Commission listens, then decides what shape the final version of the amendments will take.  On May 1, the Commission submits the amendments, giving Congress 180 days to reject them.  If there are no rejections, the amendments go into effect on November 1 and apply to everyone sentenced on or after that date -- unless the Commission decides that an amendment will be retroactive, in which case it can apply to people sentenced before that date.

Just like clockwork, the Commission announced its proposed amendments to the guidelines last week.  You can read all the amendments and get a summary of them right here.  Nerd out, sentencing nerds!

MLK Day is a Great Day for Retroactivity

So argues FAMM President Julie Stewart in this op-ed in The Huffington Post in honor of Dr. Martin Luther King, Jr.'s birthday yesterday:

On some positions, Cowardice asks the question, "Is it safe?"
Expediency asks the question, "Is it politic?"
And Vanity comes along and asks the question, "Is it popular?" 
But Conscience asks the question "Is it right?"
And there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because Conscience tells him it is right.
-- Martin Luther King, Jr.

On August 3, 2010, the nation's first African-American president signed into law a bill to reform what many considered the most racially discriminatory sentencing policy in federal law. The old policy required dramatically more severe penalties for crimes involving crack cocaine than for offenses involving powder cocaine. The president and Congress deserve credit for working together to lower crack penalties. Yet, in a cruel irony, they failed to provide any relief to the very prisoners whose unnecessarily harsh sentences they had pointed to as the impetus for reform. As our nation celebrates the life and legacy of Martin Luther King, Jr., we implore the president and new Congress to listen to their consciences, do what is right, and apply the reformed crack penalties retroactively to all offenders.
Dr. Martin Luther King, Jr. envisioned an America where members of all races were treated equally -- including in the courthouse and at sentencing.  Making MLK's dream a reality shouldn't be limited to people who aren't in prison yet.

Friday, January 14, 2011

Good and Mad Reading for the Weekend

Judge Jack Weinstein was in the news again yesterday for his stance against child porn mandatory minimums, this time in the case of Peter Polizzi.

The Polizzi case has a long history and involves receipt of child pornography, a federal crime that carries a five-year mandatory minimum prison sentence (with no parole).  Like all mandatory minimums, it's a one-size-fits-all punishment -- it doesn't matter if the person is a first-time offender, has a history of being sexually abused as a child, or has never sexually abused a child himself.  Peter Polizzi, 57, fit all three of those criteria, and Judge Weinstein found him so compelling that he fought long and hard -- through an appeal and a resentencing -- to avoid giving him a mandatory minimum.

The New York Times chronicles here Judge Weinstein's herculean efforts to get around the mandatory minimum sentence:
During his trial, in 2007, Mr. Polizzi used an insanity defense, saying he had been repeatedly raped as a child and had collected the pornographic pictures not for sexual gratification, but in hopes of finding evidence of his own abuse — claims the prosecution dismissed as implausible. When the first of the images were shown in court, Mr. Polizzi collapsed and was taken to a hospital.
He was eventually convicted of all 12 counts of receiving child pornography and 11 counts of possession.
Then, in a departure from custom, Judge Weinstein asked the jurors if knowing about the mandatory five-year sentence would have changed their views. Some said yes. The judge sentenced Mr. Polizzi to a year in prison for the possession count, then ordered a new trial on the other charges. The Court of Appeals later reversed that order.
You can read FAMM's "friend of the court" brief we submitted on the Polizzi appeal here.

This week, Judge Weinstein reluctantly gave Polizzi the mandatory minimum sentence of five years in prison:
Last year, in an interview with The New York Times, Judge Weinstein said he believed that mandatory sentences were misapplied to people who viewed child pornography, as opposed to those who produced the images.
“We’re destroying lives unnecessarily,” he said then. “At the most, they should be receiving treatment and supervision.”
In 2007, a jury found Mr. Polizzi guilty of receiving and possessing child pornography. Under federal sentencing guidelines, he was eligible for a term of 11 to 14 years in prison. That is what the government requested [this] Thursday.
But the judge responded: “I find it grossly excessive. Therefore, a guideline sentence is not imposed.”
Instead, Judge Weinstein ordered that Mr. Polizzi serve the mandatory minimum of five years.
He also gave Mr. Polizzi eight weeks before beginning the sentence. Federal prosecutors had asked that Mr. Polizzi be taken into custody immediately, saying he was guilty of a crime of violence.
Again, the judge disagreed.
“Calling it a crime of violence for this purpose seems to me a strange treatment of language,” Judge Weinstein said, adding that he would not require the defendant to start serving his sentence right away. “It does seem to me to be a form of cruel and unusual punishment and punitive in nature.”
For the record, Judge Weinstein isn't the only federal judge who thinks child pornography sentences are too long.  In a 2010 survey of federal judges by the U.S. Sentencing Commission, 70% of judges agreed that child porn receipt sentences are too harsh (both under the sentencing guidelines and under mandatory minimum laws).

Sure, receiving and viewing child pornography is a serious social problem and an absolutely unsavory crime, but should it be punished with a mandatory minimum?  Everyone deserves to be sentenced as an individual. Every case is unique. And as Peter Polizzi shows, no child porn case is simple.

We applaud Judge Weinstein for fighting for fair and individualized sentences even for unpopular offenders.

Thursday, January 13, 2011

Is it Violent if You're Running Away?

Slate has this entertaining summary of yesterday's oral arguments in the U.S. Supreme Court case of Sykes v. United States.


Marcus Sykes pled guilty to being a felon in possession of a firearm.  In federal court, that charge can win you a 15-year mandatory minimum sentence if you are an armed career criminal -- i.e., you have three prior convictions for a "violent felony."  The problem:  what is a violent felony?  The Armed Career Criminal Act (ACCA) includes a laundry list of state and federal crimes that qualify, but not every crime imaginable -- which has led to a veritable swamp of ACCA litigation.  In Sykes' case, was his conviction for resisting arrest by fleeing in his car a "violent felony"?  Here are some highlights from the Supreme Court justices during oral arguments:
Justice Samuel Alito, for instance, has found a case in which intentional vehicular flight led to "a 45-minute high-speed chase" in which "officers shot at the defendant's truck at least 20 times" while the "defendant drove over 100 miles an hour and at times drove into the oncoming traffic lane."
[Justice] Scalia, on the other hand, thinks that fast fleeing is just not such a violent activity: "Do words mean nothing?" he asks, mournfully, of Assistant Solicitor General Jeffrey B. Wall. "I mean, we're talking about a violent felony. That's what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony. That seems to me a big leap."
[Chief Justice] Roberts gently chides Wall, who argues that fleeing in a vehicle is by definition aggressive: "It seems to me, this is the exact opposite of aggressive. He's running away. Certainly the other option is to turn and confront, and he doesn't want to. There's nothing aggressive about running away." He adds: "Those are the three words, 'purposeful, violent, and aggressive.' I'll give you purposeful, I'll give you violent, but aggressive?"
Scalia then asks whether speeding is also a violent felony, and Justice Elena Kagan asks whether drag racing or running away on foot are violent felonies as well. Everyone agrees that running away from a prison on foot is a felony because the case law says as much, but nobody seems to agree on whether fast driving from the cops is violent or aggressive, or why.
The extrapolations -- was this a Dukes of Hazzard-type chase or more of a Blues Brothers chase? -- seem endless.  But the consequences are anything but laughable:  the difference between having three violent felonies instead of two is the difference between a mandatory 15 years and no mandatory minimum at all.  And in the realm of ACCA, it's often an appellate court -- and, increasingly, the U.S. Supreme Court -- that has to decide.

Why not abolish the ACCA mandatory minimum altogether and let another court -- the district court -- decide if someone is really an armed career criminal who deserves a lengthy sentence?  District courts can look at a defendant, his entire criminal history, and the unique facts of each and every prior conviction and decide for themselves whether a defendant deserves 15 years, 15 months, or something in between.  The problem with ACCA isn’t a lack of clarity, but a one-size-fits-all solution for a group of offenders who are anything but one size.

Wednesday, January 12, 2011

Two Cents on the Arizona Tragedy

This post is not about Sarah Palin, but she provides a useful jumping off point. In a video response to the Arizona shootings, she called the alleged killer, Jared Loughner, an “evil man” and “deranged.” Dictionary.com defines deranged as “insane.” Former Gov. Palin is not the first person to use these words to describe Jared Loughner and I don’t imagine she will be the last. The question I have is whether you can be both evil and insane, and if I am right that you can’t, how should the law punish the latter?

I come at this with my own personal baggage. My mother was diagnosed with bi-polar disorder/manic depression long after she first exhibited its effects around our family home. Even after receiving her diagnosis, she had difficulty finding the right drugs to control it. My mom often acted irrational when she was off her medicine. Her inability to think clearly often damaged her more than others, but there were many times when her irrationality manifest itself in hurtful behavior toward her children and others. Some of us who experienced her behavior believed that could be plain “evil.”
After watching my mother struggle with mental illness for her entire adult life, I know how terrifying it can be. I also have gotten a sense of how little others, who are lucky enough not to have a loved one suffer from it, understand about mental disease. My brother has observed how little mental illness is discussed publicly compared to its presence and negative effects on our society. This country is home to many charity walks (and runs) to raise awareness of breast cancer, AIDS, and all sorts of dangerous diseases. These charitable endeavors are undeniably worthwhile. But one wonders what it will take for us to take note of the mental health crisis that is spreading right before our eyes?
If our reaction to the Arizona shooting rampage is that Jared Loughner was a clear-minded, cold-blooded murderer, we can dispose of his case and his crime quite easily. But if we understand that he is like hundreds of thousands of Americans who are anything but clear-minded, then the resolution of this matter might be more complicated.
My mother’s illness was treatable. When taking the proper medication, she was not deemed evil by anyone. I was lucky there. I understand that not every deranged person can be treated and rehabilitated to the point that they should be free to live alongside us in civil society. But the truly insane or deranged cannot be evil and should not be punished as such. The fact that we still conflate the two is a sign of how far our society still has to go to appreciate the true nature of mental illness.
- Ingersoll

Monday, January 10, 2011

Arkansas to Take the Ax to its Prison Population?

Arkansas appears to be the next state lining up to cut its budget and save money.  This article in the Arkansas News pinpoints one of Governor Mike Beebe's top savings priorities as "tackling the state’s burgeoning prison population."

The governor said he would like to address the state’s growing prison population with some of the recommendations made by a working group that has been studying the problem for nearly a year.  In a study released Tuesday, the group recommended holding offenders more accountable, reducing the number of low-risk drug offenders in prison and expanding medical parole for terminal convicts.
That working group includes the Pew Center on the States. Its initial brief on Arkansas came out in June 2010 and found that the primary cause of prison population growth is -- no surprise here -- sending too many people to prison instead of using alternatives like probation. This month, the Arkansas working group follows up with a new report offering suggestions for changes, from who goes to prison to who gets parole.

All of the Pew suggestions are good ones, and FAMM would only add that Arkansas take a hard look at its mandatory minimum sentences. Nothing racks up prisoners -- and prison costs -- faster than mandatory prison terms.  And nothing should bother taxpayers and legislators more than using expensive prison space for nonviolent offenders who don't need to be there.

Friday, January 7, 2011

Newt Gingrich to Conservatives: Downsize Prisons

Today, former Speaker of the House Newt Gingrich, a stalwart conservative, joined with long-time prison reformer Pat Nolan of Justice Fellowship and gave conservatives this no-nonsense message:

There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential. We spent $68 billion in 2010 on corrections - 300 percent more than 25 years ago. The prison population is growing 13 times faster than the general population. These facts should trouble every American.
Our prisons might be worth the current cost if the recidivism rate were not so high, but,according to the Bureau of Justice Statistics, half of the prisoners released this year are expected to be back in prison within three years. If our prison policies are failing half of the time, and we know that there are more humane, effective alternatives, it is time to fundamentally rethink how we treat and rehabilitate our prisoners.
We can no longer afford business as usual with prisons. The criminal justice system is broken, and conservatives must lead the way in fixing it.
Hear, hear!  The op-ed makes many convincing arguments that downsizing prisons (and curbing our addiction to them) won't lead to a spike in crime and will save cash-strapped states lots and lots of money.  Read the whole thing, and check out Right on Crime's website for conservative ideas on criminal sentencing reform.

Of course, the major contributor to prison population growth in the last 25 years has been the widespread use of mandatory minimum sentences -- especially for low-level and nonviolent drug offenders.  The math is simple:  require long prison sentences for lots of offenders, and you run out of prison space -- and run up prison costs -- fast.  In Florida, for example, just a handful of illegally obtained prescription drugs earns even first-time offenders a trip to prison for 25 years.  One such sentence for one offender costs Floridians half a million dollars (see the case of Scott Earle as an example).  Now multiply that by hundreds or thousands of offenders, and you see where Florida's overstuffed prisons and colossal corrections budget came from.  And we know from yesterday's post that America's favorite drugs to abuse are prescription drugs, which begs the question: is a long mandatory prison sentence really the best way to handle such a common public health problem?

Getting rid of mandatory minimums, giving judges discretion, and creating smarter alternatives to prison must be part of any plan -- conservative or otherwise -- to kick America's incarceration addiction.

Thursday, January 6, 2011

And the Most Dangerous Drug Award Goes to...

...the ones sitting in your medicine cabinet, if we're measuring dangerousness by most visits to the ER.

According to this New York Times article, the leading type of drug abuse landing people in emergency rooms each year doesn't involve crack, cocaine, or heroin -- it involves prescription drugs.

The number of emergency room visits resulting from misuse or abuse of prescription drugs has nearly doubled over the last five years, according to new federal data, even as the number of visits because of illicit drugs like cocaine and heroin has barely changed. ...
Emergency room visits resulting from prescription drugs have exceeded those related to illicit drugs for three consecutive years, said R. Gil Kerlikowske, President Obama’s top drug policy adviser. ...
In 2010, the Substance Abuse and Mental Health Services Administration reported that the number of people seeking treatment for addiction to painkillers jumped 400 percent from 1998 to 2008. And in a growing number of states, deaths from prescription drugs now exceed those from motor vehicle accidents, with opiate painkillers like Vicodin, Percocet and OxyContin playing a leading role.
Interesting, isn't it?  For years, War on Drug advocates have been using abuse of "hard" drugs to whip up fear and justify absurd, costly, and ineffective sentencing policies.  While the abuse and trafficking of drugs like crack, heroin, and methamphetamine is no laughing matter, neither is prescription drug abuse.  Why do you think there hasn't been more focus on prescription drug abuse over the years of the drug war?

Tuesday, January 4, 2011

Vick's Second Chance = Second Chances for Others?

For football fans, Michael Vick's return to the game isn't just good news for his team, the Philadelphia Eagles, it's also -- possibly -- good news for criminal justice reformers.  President Obama weighed in on the redemption of Vick, who recently served almost two years in federal prison:
On Monday, the buzz was about how the president had weighed in on the redemption of Michael Vick. Obama phoned the owner of the Philadelphia Eagles to praise the team for giving a second chance to the quarterback, who is again a National Football League star 19 months after leaving prison for his role in a horrific dogfighting ring that killed pit bulls by electrocution, hanging and drowning.
The president has not spoken publicly about the call, though aides acknowledged that it took place. But Eagles owner Jeffrey Lurie told Peter King of Sports Illustrated and NBC Sports that during their conversation Obama was passionate about Vick's comeback. 
"He said, 'So many people who serve time never get a fair second chance,' " said Lurie, who did not indicate when the call occurred. "He said, 'It's never a level playing field for prisoners when they get out of jail.' And he was happy that we did something on such a national stage that showed our faith in giving someone a second chance after such a major downfall.''
In today's Washington Post, Michael Gerson registers his own eloquent thoughts on Vick as an example of how people can pay their debt to society and become productive, law-abiding citizens.  But few returning prisoners have the resources or help Vick has -- and reentry wouldn't be a problem in the first place if many, many offenders were given more effective punishments like drug or mental health treatment or other sentences that don't involve expensive prison time.  As Gerson says it,
... states are searching for better ways to sort their criminal population - to distinguish between the predatory who require prison and the nonviolent who need something else. They are questioning mandatory minimums, experimenting with alternative sentencing and creating drug courts that give priority to treatment. There is less creativity, but equal need, on the reintegration of ex-prisoners: providing transitional work programs, addressing addiction and mental health issues, removing unnecessary barriers to employment and housing. It is never a level playing field for prisoners when they get out of jail.
Preventing crime and reducing recidivism are among the most difficult social policy challenges. Gains come slowly and tend to be incremental. But such efforts are also the practical demonstration of a defining national principle: While human beings are capable of great horrors that merit justice, they do not become trash to be thrown away. Even the least sympathetic - heroin addicts and jailed criminals and gang members - remain part of the American community, the human community. And their very lack of sympathy tests our commitment to that ideal.
Obama's instinct on this issue is entirely correct, and he should run with it. The president has exhausted the nation with grand reforms. Perhaps instead of the reconstitution of American society, he could focus on the amelioration of some specific needs. Other presidents have done the same, to their great credit. George H.W. Bush pushed for the Americans With Disabilities Act, making our laws and sidewalks more welcoming. Bill Clinton expanded the earned-income tax credit; George W. Bush fought AIDS worldwide.
Guiding children away from crime and disrupting the cycle of recidivism fall into a similar category. When an important moral cause lacks a potent political constituency, only the president can unite the nation to address it. It is the power, and burden, of executive leadership.
America is the nation of the second chance. Or at least it should be.
Well said.  Years of ineffective, expensive policies like mandatory minimums and over-reliance on incarceration have cost America dearly in dollars, in values, and in human lives.  President Obama can and should take the lead on giving people second chances -- second chances instead of prison for those who merit it, and second chances after prison for all who return to our communities.

Monday, January 3, 2011

New Year, New Chances, New Voices

There's a lot of good stuff brewing in the media right now on mandatory minimum sentencing laws and the need for a smarter, more effective criminal justice system.  It may be a new year, but we still have a lot of work to do -- and a lot of years of bad policy to fix.

For all the time and money we spend vetting federal judges to ensure they are qualified to do their jobs, mandatory minimum sentences cede all discretion to prosecutors to determine when to charge which defendants with what offenses. The result? Neutral judges are prevented from considering factors such as motive, intent, addiction or the defendant's actual role in the offense.
Even after 40 years of studies, no reliable evidence shows that mandatory minimums make us safer. In fact, studies show that lengthy sentences may increase crime. The longer a person serves in prison, the more likely it is that the person will return to crime when released.
  • In the Boston Globe, FAMM's Barbara Dougan tells the hard truth about Boston's mandatory minimum drug laws and how they foster recidivism:
Massachusetts’ ill-conceived sentencing laws actually prohibit drug offenders who are serving mandatory minimum sentences from learning, while in prison, the skills needed to earn an honest living upon release. Too often they are forced to remain idle, with little chance to put their time behind bars to good use. Meanwhile, taxpayers foot the bill for such an ineffective policy. 
  • On December 30, The Washington Post issued this disapproving editorial about President Obama's failure to grant more than nine pardons so far.
  • Peter B. Krupp provides this nice defense of sentencing flexibility for judges in this response to a Boston Globe article that raised concerns about judges sentencing differently within the same court.
  • And add Pat Robertson (yep, the Pat Robertson) to the list of unlikely allies who support canning mandatory minimums.  After seeming to vocalize his support for marijuana decriminalization, Christian TV giant Robertson clarified his remarks and took a definitive stand against mandatory minimum sentences, citing their huge costs and ineffectiveness as grounds for reform.  Read it all at Reason's blog, Hit and Run.
Phew.  That's a lot of good sentencing news to start a new year of reform.  Happy New Year!

Mexican Wrestling Just Says No to Drugs

Happy New Year!  Welcome to 2011, and we'll start by blogging about this fun (and funny) piece from The Washington Post about "lucha libre," the Mexican professional wrestling satirized (immortalized?) in the 2006 Jack Black film Nacho Libre.


David McNew / Getty Images
(Yes, that "luchador" is dressed as a chicken.)
While "narcocultura" - the trappings and legends of dope-smuggling, gun-toting millionaire hillbillies such as Joaquin "El Chapo" Guzman - has penetrated every other element of Mexican pop culture, from movies and music to TV and religion, the masked lucha libre characters and their corny good-vs.-evil story lines have remained untouched.
"Perhaps the reason is that lucha is more innocent," said Sandra Granados, press deputy for the World Council of Lucha Libre, one of the main promoters.
But [Jorge] Chabat said: "It is probably because the government has told them they cannot. And I can understand why. I can't imagine a wrestling character called 'El Traficante' in the ring, or 'El Super Narco,' or 'the Assassin.' I can't imagine they would allow it." ...
"I really don't know how the public would react to a character representing the narcos. I don't know if they would cheer for them or boo them. They don't want to turn these guys into superheroes. What if the audiences really applaud?" 
That's the question, isn't it?  Read the whole thing -- it's a good read about how drug abuse and trafficking becomes (or doesn't become) part of a culture.  I've blogged before about how drug trafficking arguably has its own language and its own religion.  In Mexico, it appears that -- for now, at least -- the drug culture cannot claim pro wrestling as its own sport.