Monday, February 28, 2011

You Can Have Sex With Them; Just Don't Photograph Them

That's the provocative title of this excellent Radley Balko article from Reason. Another moral of the story (apart from the title of the article) is that you can't judge a case by how bad the charge sounds.

Eric Rinehart, the federal prisoner (and FAMM member) profiled in the article, was convicted of producing child pornography.  Sounds bad, but the facts of the case show how complicated this story was -- and how justice was thwarted because the judge couldn't take those complexities into consideration:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17. One of the women had contacted Rinehart through his MySpace page. He had known the other one, the daughter of a man who was involved in training police officers, for most of her life. Rinehart was going through a divorce at the time. The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.
Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal. The age of consent in Indiana is 16. That is also the age of consent in federal territories. Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart. Rinehart lent her his camera, which she returned with the promised photos. Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.
In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison. Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied. ...

It did not matter that Rinehart's sexual relationships with the two girls were legal. Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer. There was also no evidence that he abused his position as a police officer to lure the two women into sex. His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)
I sometimes hear people make arguments that go something like this:  "Oh, I understand why we should not have mandatory minimums for nonviolent drug offenders ... but we should definitely have them for bad, scary crimes like sex crimes and violent crimes."

But mandatory minimums are also unjust when applied to crimes that sound sensational, horrific, and/or scary -- in short, the kinds of crimes lawmakers just love to slap mandatory sentences on these days.  Undoubtedly, there are people out there who deserve 15 years for making kiddie porn.  But Eric Rinehart is living proof that mandatory minimums will -- always, eventually, and inevitably -- produce punishments that are grossly unjust, cost us a fortune, and do nothing to make us safer.

That truth about mandatory minimums will out, and it doesn't matter if the crime in question involves child porn or crack cocaine.

-- Stowe

Way to Go, Ohio

FAMM President Julie Stewart joined the bipartisan coalition of forces supporting sentencing reform in the Buckeye State. On Sunday, the Cleveland Plain Dealer ran her op-ed, which opened like this:

If the polls are to be believed, the American public wants results from its elected leaders, not partisan bickering. Ohio lawmakers will soon have a chance to fulfill the public's wish. Top officials in all three branches of Ohio government are supporting a new comprehensive plan to reform the state's criminal justice system. The plan enjoys bipartisan backing and deserves the support of all lawmakers interested in protecting public safety while reducing wasteful spending.
Ms. Stewart closes her piece by addressing the concerns voiced by some state prosecutors.
Not everyone is on board, however. The head of the Ohio's prosecuting attorneys association, John Murphy, has stated, "Public safety is the first responsibility of the state of Ohio. You don't write sentences to fit the budget."

Mr. Murphy is undoubtedly correct. Ohio and other states should not make cost the only factor when crafting anti-crime policy, but for too long, it was not considered a factor at all. Just as with clean air, good schools and safe roads, we would rather these important government objectives not be limited by cost, but reality mandates otherwise.

Yet while most government objectives need money to improve outcomes, the proposed criminal justice reforms would not only save funds, but would benefit Ohio's criminal justice system by more appropriately punishing offenders, reducing recidivism and increasing alternative treatment options. It may be a need to save money that brought people to the negotiating table, but they are leaving with much more than cost savings. With this proposal, public safety can be maintained, while costs are cut. The Ohio legislature is fortunate to have a plan before it that accomplishes these twin goals.
A special SentenceSpeak shout-out to Ohio State Senator Bill Seitz for his sponsorship of the major sentencing reform bill!

Friday, February 25, 2011

Required Viewing on Mass. Mandatory Minimum Madness

If you want to know everything that's wrong with mandatory sentences and only have 3 minutes to spare, check out this video from Boston's ABC affiliate. Here's the story's teaser:

Small-time, nonviolent drug offenders are spending years in prison when child molesters and killers go free, because of what some call a flaw in our criminal justice system.
 
NewsCenter 5's Sean Kelly revealed on Thursday why efforts to ease restrictions on nonviolent drug offenders serving mandatory minimum drug sentences have been repeatedly blocked by lawmakers on Beacon Hill.

Thursday, February 24, 2011

Profiles in Courage

More clemency news today over at Talking Points Memo, where rumors of former Arkansas governor Mike Huckabee tossing his hat into the 2012 Republican presidential primary sparked this piece by Brian Beutler.  We quote it almost in full because it's such a wonderful profile of a political leader showing courage in the clemency department:

If Mike Huckabee enters the GOP presidential primary, his opponents will batter him over the case of Maurice Clemmons. Clemmons was a prisoner in Arkansas to whom Huckabee granted clemency, who went on to murder four people in Washington state.
Huckabee isn't the first national political figure to face this line of attack. It often plagues former governors who run for president. And when it's true, their response options are often limited.
That said, at a round-table discussion with reporters hosted by the Christian Science Monitor on Wednesday, Huckabee rose to the moment and said he made the right decision.
"There was a kid who was 16 years old, he committed a burglary, he was aggravated, but not armed. And for that he got 108 years," Huckabee said. "One-hundred-and-eight years."  By the time the file hit Huckabee's desk, the culprit, Maurice Clemmons, had already served 11 of those years.
"And most people wouldn't have served -- they wouldn't have even been sentenced to 11, much less served 11. It was clearly a disproportionate sentence, based on all the other cases like his," Huckabee said. "Quite honestly, I'd love to tell you this isn't true, but that kid was black. And if he'd been white, and upper-middle class and had a good attorney he wouldn't have served a day. He'd have had probation, he'd have gone to see a counselor, and he'd probably gone to college, and he'd probably be on Wall St. making a couple billion bucks a year."
After Clemmons was released, he murdered four people in the Seattle area. Huckabee thinks state officials in Washington and Arkansas made errors after Clemmons' release, and that he should have been picked up for other infractions before he committed the murders. Huckabee says he wasn't a mind reader, and based on the information in front of him, he made the right decision.
"If I had the same file in front of me today that I had then, I would make the same decision, and I would like to think -- God help us when we get to the place when the only decisions we make are the ones that are in our own political self-interest," Huckabee said.
Well said.  We don't endorse any candidates here at FAMM, nor do we side with any political parties.  We do appreciate candor, compassion, and courage from all political leaders -- no matter their party.  Huckabee's brave and compassionate handling of the Clemmons clemency and its fallout wins our respect.

Unpardonable, Sports Illustrated...

For some time now, there's been a small but sometimes loud movement urging President Obama to grant a posthumous pardon to long-dead boxing legend Jack Johnson.  Johnson was convicted under the Mann Act back in 1913 for transporting his white, then-a-prostitute, soon-to-be-wife across state lines (she traveled with him, as many fiancees are wont to do).  Most people today agree that Johnson's conviction was the result of nothing but racism, but Johnson never sought a pardon while he was alive.

Over at Pardon Power, there's a saucy blog post critiquing Sports Illustrated's recent attempt to argue in favor of a posthumous pardon for Johnson.  Read the SI article (by Tim Dahlberg) first, then read the blog post.  If Pardon Power's author, P.S. Ruckman, sounds a bit peeved, it's for good reason.  This criticism of Dahlberg's article says it all and says it beautifully:
The fact that Obama hasn't pardoned Jack Johnson already is [as] "puzzling as it is troubling" --  You want to see "puzzling" and "troubling, Mr. Dahlberg? Do you? Look into our federal prisons where there are 200,000 plus prisoners and literally thousands of African-American men serving ridiculously long mandatory minimum sentences (which have also disproportionately impacted African Americans). They are alive right now. They are suffering right now. And their suffering is not symbolic. It is real. You want to "right" some "wrongs," do you? And this is the best you can do? Focus on a dead guy who never asked to be pardoned and would probably have no interest whatsoever in your cheer leading effort? Epic fail. Epic.
-- Stowe

Wednesday, February 23, 2011

Anatomy of a Budget Cut

Grover Norquist, the president of conservative group Americans for Tax Reform, continues his new crusade to get conservatives on the Straight Talk (on Crime) Express with this recent op-ed in the Orange County Register.  The piece nicely sums up how incarceration doesn't promote conservative family values -- or, really, any conservative values:

...lengthy prison stays pull people away from school, family obligations and religious institutions – all of the things that conservatives rightly emphasize as critical to good citizenship.
Today's criminal justice system is big government on steroids, and the responsibility for taming its excesses falls to those committed to smaller government: conservatives. We fight against big government, excess spending, unaccountability, and bureaucracy in nearly every other segment of spending. With new Republican majorities nearly 20 state legislatures, now is the time to start fighting against an ineffective, big-government prison system. and begin being tough on criminal justice's bottom line as well as crime.
That message should resonate in California, which has both a budget crisis -- and that's crisis with a capital C -- and a notoriously bloated prison population:
In states like California, the annual cost of incarceration is around $50,000 per inmate. When looking for reasons why California is going bankrupt, just multiply that figure by the 170,000 inmates that live in the state. Moreover, 34,000 California prisoners are serving life sentences as a result of the "three strikes" law, for which the state prison guards' union lobbied intensely. Certainly, some violent criminals should be out after the first strike, but the law applies to many low-level, nonviolent offenders, too.
Stats like those make budget cutting practically a no-brainer!  This nice piece from California's Inland Valley Daily Bulletin gets into the nitty-gritty on new Governor Jerry Brown's efforts to cut back -- with no mention of three strikes law reform:
Brown's budget calls for the elimination of the Division of Juvenile Justice, putting the responsibility on local governments to detain juvenile offenders ($250 million in savings). Meanwhile, lower-level, nonviolent, non-sex offenders would be housed in county jails, not prisons ($1.4 billion in savings). Perhaps we should consider the Texas model, where there have been reduced sentences for drug crimes, and a focus on job training and rehabilitation. As a result, Texas has seen a decrease in serious crime and its incarceration rate, even saving over $2 billion by not having to build a 17,000-bed prison that was planned.
Undoubtedly, Governor Brown is doing his best -- and he inherited this mess, by the way.  A crisis, by definition, calls for serious action.  It's the obvious fix that is the most serious:  if you want to cut corrections costs, send fewer people to prison and don't make them stay there as long!  


Three strikes and mandatory minimum reform should be the first -- not the last -- order of business for states looking to cut budgets.

Wash Post Tells Congress to "Go Retro" on Crack Reform

Ok, we're late in getting you this outstanding editorial that appeared in the Washington Post on February 19th. Because it's exactly what we would have written if we edited a major newspaper, we reprint it here in full.

New law on crack cocaine penalties should be made retroactive


THE PRESIDENT and Congress agreed last year that the penalties for crack cocaine have for decades been grotesquely out of whack.

The result of this refreshing meeting of the minds was the Fairness in Sentencing Act, which brought a measure of rationality to the crack laws. Where an offender once faced a mandatory five-year sentence for carrying five grams of the drug, the new legal scheme imposes the same penalty only if the offender is convicted of peddling 28 grams. A mandatory sentence of 10 years - originally guaranteed for possession of 50 grams - now can be imposed only upon conviction for 280 grams. Just as important, the new law eliminates mandatory minimum sentences for simple possession, and it narrows the gap between the harsh crack sentences imposed most often on young, African American men and the far more lenient penalties for powder cocaine infractions more often associated with white and Hispanic offenders.

The measure was signed into law last August, guaranteeing that those convicted of crack offenses in the future would benefit from the fairer assessments. But the law does nothing for the thousands of prisoners already serving harsh sentences under the old scheme. This injustice can and should be addressed by the U.S. Sentencing Commission.

The commission establishes a range of penalties based on congressional enactments. For example, someone convicted of selling 28 grams of crack could get more than the five-year congressionally mandated sentence when other factors, such as criminal history, are taken into account under the U.S. sentencing guidelines. The commission is preparing to forward to Congress amendments to the guidelines to reflect the changes in the Fair Sentencing Act. The commission should make the new guidelines retroactive.

Some 13,000 prisoners - 85 percent of whom are black - would be eligible for retroactive sentencing reductions, according to the commission's analysis. The average prisoner would receive a sentence reduction of about three years. The releases would extend over 30 years, with potentially 3,000 to 4,500 prisoners being released during the first year after the sentence reductions are made retroactive. But release is not automatic: Prisoners would have to petition a federal court for the sentence reduction, and prosecutors would be able to lodge objections, including those based on public safety concerns.

Making a sentencing change retroactive is not a new phenomenon. The commission did just that three years ago when it amended the crack guidelines and applied the changes to existing prisoners. Since then, some 25,000 prisoners applied for the sentence reduction; some 16,000 of these requests were granted. Even with the reductions, the sentences remained lengthy: The average prisoner earned a reduction of 26 months, from roughly 12½ years to 10 years.

Congress has the power to veto the commission's proposed amendment to implement the changes in the Fair Sentencing Act, but it has no say on whether those amendments, if approved, will be applied retroactively. Some prisoner advocates worry that lawmakers who refused to make the Fair Sentencing Act apply retroactively will nix the proposed amendments just to prevent retroactive application. Such a move would represent the height of cynicism and undercut the good that lawmakers did by passing the Fair Sentencing Act in the first place.


Thursday, February 17, 2011

Is Your State On This List?

The Sentencing Project released this helpful report detailing what states did in 2010 to make our sentencing and criminal justice policies a little bit fairer, smarter, or more cost-effective.


It covers everything from New Jersey's smart decision to give more flexibility to judges sentencing people under the state's overly broad drug-free school zone law (a FAMM reform) to New Mexico's choice to take questions about prior convictions off of public employment job applications.

Did your state make the list?  If you were governor for a day, what reforms would you support in your home state?

Wednesday, February 16, 2011

It's Out

President Obama released the proposed federal budget this week, including how the money will shake out for the Department of Justice, which includes the federal Bureau of Prisons.

Read FAMM's summary here.  If you're really ambitious, read the whole DOJ budget section here.  If you just can't get enough of this stuff, read the entire budget here.  And for those true budget nerds amongst us who want insight into the budget negotiation process between DOJ and the Office of Management and Budget, check out this document.

Here are the highlights:
  • Funding for the custody and care of an average daily population of 219,075 prisoners, an increase of nearly 10,000 people over the current population.
  • $44.7 million to begin the activation process for a new federal prison in Aliceville, Ala. and to expand existing inmate programs (Occupational Education and the Residential Drug Abuse Treatment Program).
  • $41 million in savings if Congress passes modest increases in good time credit for federal prisoners. 
Good time credit is, of course, the big news here.  For years, federal prisoners have gotten a maximum of 47 days off each year for good behavior, and FAMM and others have been arguing in favor of a different interpretation that lines up with the law's allowance of up to 54 days off each year.  These weeks of extra incarceration add up and cost taxpayers millions.

No good time changes are law yet -- right now, it's just a budget proposal.  To see the proposed good time changes become reality, we have to get Congress to pass them into law, and that could take some time.  But you better believe that FAMM is going to fight for this little change -- not just because it will save money, but because it's right.

Tuesday, February 15, 2011

What America's (In)famous For

More mandatory minimum news north of the American border today.  Canada's Globe and Mail editorial calls on the parliament to reject proposed mandatory sentences and create a sentencing commission to "to bring order to our chaotic sentencing regime."

This article explains how Bill S. 10 may create one and two-year mandatory minimum sentences for drug crimes in Canada.  Us Americans, with five and 10-year penalties for drug offenses, might be tempted to dismiss such "light" sentences as no big deal, but with our cultural obsession with over-punishing, I don't think we're qualified to judge.  Besides, it's the principle behind mandatory sentences -- not just their length -- that is offensive to ideals of justice.  Judges should decide your fate, not legislators, regardless of whether the mandatory minimum is two years or ten.

There look to be some big problems with the proposed sentences:
... it’s the low-level street dealers who should be alarmed. As there’s no minimum amount of cocaine required to trigger the mandatory sentence, someone who sells even a 10th of a gram of cocaine for $10 and who has a previous conviction for a “designated substance offence” will be swept up by the new laws. Street dealers are middlemen who facilitate the exchange, while the buyers and suppliers actually control the level of drug use in Canada.
If the Harper government wants to incarcerate street dealers, then it should be forthright and say so. But the government is mobilizing our legitimate fear of organized crime as a Trojan horse against minor drug offenders, the most disorganized of criminals. This is an unnecessary manipulation of public sentiment that punishes the people who have the least impact on the strength of the drug trade.
And we get to officially add mandatory minimums to the list of things America is famous (infamous) for overseas:
It’s absurd to adopt a trend from a country that incarcerates the highest proportion of its population in the world, and one that’s starting to move away from the culture of mandatory minimums. Americans just have too many non-violent offenders in jail, and they haven’t even come close to winning their war on drugs.
We don't know about you, but we'd love to live in a country that's not known for locking up so many people so indiscriminately, at such a high cost.

Canada, a word of advice from FAMM:  this is one area in which you really don't want to be like us.

Front end or Back end?

This news piece from NPR notes new conservative involvement in criminal sentencing reform and how budget crises are inspiring states to send fewer people to prison (a front-end reform) or let more people out of prison earlier (a back-end reform).

One trend I've seen over the years is a preference for pursuing back-end reforms:  release a lot of people early, provide better reentry services so they don't reoffend, have better parole/probation revocation guidelines so that fewer people go back in.  Back-end reforms are certainly important and worthwhile, but it's the number of people who go to prison -- and how long they stay there -- that drives overincarceration.

In other words, to save big, what we need is a lot of front-end reform.

The problem:  until recently (and I mean really recently), front-end reform is exactly the kind of reform no politician wanted to touch.  If you touted a front-end reform, you got labeled soft on crime.  Hence, our problem today:  too many people in prison, with still too many going in for too long.

The single most important front-end reform any state legislator could embrace would be repealing mandatory minimum sentences.  Ultimately, we need to fight and prevent crime on both ends -- before and after a person leaves the justice and/or prison system.  But think how much we save if people never have to enter that system to begin with.

-- Stowe

Monday, February 14, 2011

The New Sensation Sweeping the Nation

Is sentencing reform and prison budget cutting.  Lots of news out there on state sentencing law developments this Valentine's Day weekend:

Texas's budget writers are urging corrections officials and their parole boards to release more elderly and ill prisoners, instead of keeping them locked up -- at huge taxpayer expense -- until they die.  In 2009, only 59 of 337 prisoners recommended for medical discharge and community supervision actually got it.

West Virginia's Charleston Daily Mail has the funniest sum-up of a prison crisis we've seen in awhile:

"The regional jails have put bunk beds and bunks within their cells in their facilities to expand their capacity beyond its original design," said Jim Rubenstein, Commissioner of the West Virginia Division of Corrections. "There really is no more room at the Inn."
In Oklahoma, drug court participation is up -- and particularly beneficial to women.  This story offers a glimpse into prescription drug abuse and recovery and a success story.

Finally, this South Carolina article asks why recent sentencing reforms have not slowed prison (and prison budget) growth.  Some say it's because judges are still sentencing the same way they did before the reforms were passed.  Others say the reforms were intended to prevent new prison building and that savings won't show up immediately.  It leads to an interesting point.  In a budget crisis, we want savings now, but we didn't get into this mess overnight -- and we won't get out of it overnight, either.

Sentencing reform:  it's the new sensation sweeping the nation!

Meth and Misinformation

How did we get such stiff federal meth laws?

Mostly ignorance, says this opinion editorial over at The Daily Caller, by a former Congressional staffer who helped write the harsh mandatory minimum laws for meth:

We drafted a bill to impose the same mandatory minimum sentences on meth trafficking that applied to crack. The bill was not approved by the full Senate, but we successfully attached it to an omnibus appropriations bill and it became law.
People can debate whether the effects of this law have been good or bad, but I can tell you that when we put the bill together, I did not know half of what I should have known. I did not know what the average sentence imposed on meth traffickers was at the time, whether those sentences were sufficient at deterring use, whether alternatives to prison might have been more effective at reducing recidivism, or how much these new, longer sentences would cost the federal government. These are things policymakers — or, at least, the staff they entrust to craft their legislation — should know before making national policy.
The need for evidence-based sentencing policies is greater than ever.  Conservatives in particular call for more accountability for a smaller and more efficient government, so how about starting with the way Congress creates sentencing laws?

Passing harsher sentences without adequate research, hearings, prison bed space and budget impact studies, and exploration of alternatives is begging for a bigger, fatter, more expensive, less effective justice system.

Friday, February 11, 2011

To Be Conservative, DON"T Be Tough on Crime

Oddly enough, that is exactly the message of this National Review piece by Grover Norquist, the president of the conservative group Americans for Tax Reform.  So, conservatives, don't just take it from FAMM (and virtually everyone else out there working on criminal justice reform right now).  Take it from one of your own.

The whole thing is worth reading, so here it is:

Conservative Principles and Prison
Let’s stand for limited government, federal accountability, and reduced spending.


When it comes to education, pensions, health care, Social Security, and hundreds of other government functions, conservatives are a beacon for fiscal responsibility, accountability, and limited government — the very principles that have made this country great. However, when it comes to criminal-justice spending, the “lock ’em up and throw away the key” mentality forces conservatives to ignore these fundamental principles.

With nearly every state budget strained by the economic crisis, it is critical that conservatives begin to stand up for criminal-justice policies that ensure the public’s safety in a cost-effective manner.

In the 1970s, conservatives focused on the urgent need to rein in an epidemic of violent street crime that many argued was a result of the misguided academic theories of the 1960s that advocated treatment and rehabilitation of criminals. The idea among “experts” was that rehabilitation worked on everyone — even violent criminals. Within a decade, American streets were overrun with released and reoffending criminals, and the academic theories had been debunked.

Unfortunately, the ideological pendulum then swung too far in the other direction. Conservative reformers brandishing the phrase “tough on crime” tackled misconduct by incarcerating more people and giving them longer sentences. The new conventional wisdom was that rehabilitation never worked — so why even try?

This attitude led America to our current situation. Today, 2.3 million people sit in U.S. prisons — nearly one in every 100 adult Americans. America has the highest known incarceration rate in the world. Many of the incarcerated are guilty of non-violent crimes and afflicted with drug or mental-health problems, for which they receive little treatment, even when full rehabilitation is possible.

As the size of the prison system has grown over the last three decades, its cost has quadrupled. Corrections spending is currently among the fastest growing line items in state budgets.

This extensive and expensive incarceration regime is worthwhile to the extent that it is the most cost-effective means of protecting the public; however, research indicates we have long since reached the point of diminishing returns, and numerous case studies can be used as evidence that more prison spending does not necessarily provide greater public safety than alternative approaches.

Consider Texas, a state legendary for being “tough on crime.” When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.

State and local governments must be empowered to move toward rehabilitation programs that are best for their communities. Hawaii, for example, pioneered the HOPE Court, a community court that constantly drug-tests offenders and informs them that they will be immediately incarcerated if they fail. In the HOPE Court, positive drug screens have been reduced by 91 percent, and revocations and new arrests have been cut by two-thirds.

Further, corrections funding must be performance-based. Additional funding for corrections agencies must be given as a reward for reducing recidivism rates, not simply on the basis of the volume of prisoners they house. Similarly, prisons and community corrections programs should be evaluated on the number of discharged offenders who are less of a threat to public safety than when they entered.

Conservative principles don’t have to change to make the criminal-justice system successful, but the stance conservative leaders take must. There is no reason that conservatives should be tied to the “lock ’em up and throw away the key” strategy; rather, we must stand for the very principles of limited government, federal accountability, and reduced spending that our forefathers effectively deployed. I ask my fellow conservative leaders to reconsider the “tough on crime” approach so that we can cost-effectively increase public safety. 


Grover Norquist is the founder and president of Americans for Tax Reform and a signer of the Right on Crime Statement of Principles.

Thursday, February 10, 2011

Smarten Up on Crime

That's the message to legislators, the President, state governors -- anyone who will listen -- in the Smart on Crime website launched today.

The site is www.besmartoncrime.org, and the concept is simple. Two years ago, criminal justice reform experts (including FAMM) got together and asked, "What should the new President do to improve the justice system?"  The answers were compiled at this site. Two years later, we're back.  The new site looks at what the Obama Administration has -- and hasn't -- achieved and offers recommendations for better, smarter policies.

FAMM chipped in on the Federal Sentencing, Prisons, and Pardon Power & Executive Clemency sections.

Read, share with friends, and let us know your thoughts:  What would you tell President Obama to change in our criminal justice and sentencing systems?

Wednesday, February 9, 2011

Jim Webb Going...But Not Without His Bill?

Senator Jim Webb (D-Va.), a champion of criminal justice reform, is retiring after just one term in the U.S. Senate, he announced today.  But before he leaves at the end of 2012, he's got some unfinished business:  passing the National Criminal Justice Commission Act.  The bill was first introduced in 2009 but was not passed by Congress, and yesterday, he introduced a virtually identical bill, S. 306, which you can read about in FAMM's press release here.

The National Criminal Justice Commission would do a top-to-bottom review of our system -- including looking at our sentencing policies.  What it reports back to Congress would lay the groundwork for something we haven't had much of in federal sentencing policy:  evidence-based, data-grounded, cost-effective reforms that make us do what works instead of what is popular, fear-inspired, or appears "tough on crime."  And surely 20 years and an overstuffed, high-cost prison system have shown us that mandatory minimums don't pass muster.

Such a Commission could not come at a better time.  Getting control of the federal budget means making everything work a little harder, better, and cheaper (see this good article on that concept) -- and the criminal justice system and prison system are no exceptions.

Tuesday, February 8, 2011

Legislate First, Know What the Heck You Are Doing Second

I don't know whether to laugh or cry after reading this story about the Toyota unintended acceleration "problem." It turns out that Toyota was right all along; the problem was not electrical. In fact, it's likely that the biggest problem was with the people driving the cars mistaking the brake for the gas. This is exactly what Toyota was saying last year when they were called before Congress and subjected to the manufactured outrage of so many theatrical congressfolks.

The president of Toyota - not to mention the company's shareholders - deserve an apology from those members of Congress who jumped to conclusions before the facts were known. But I am sure Mr. Toyoda is not holding his breath.

So why is this an issue for SentenceSpeak, dear reader? This kind of knee-jerk, uninformed reaction has marked federal anti-crime policymaking for too long.

According to the AP story on Toyota's vindication:

Congress considered sweeping safety legislation last year that would have required brake override systems, raised penalties on auto companies that evade safety recalls and given the government the power to quickly recall vehicles. But the bills failed to win enough support, and it remains unclear if Congress will pursue similar legislation before the 2012 elections.

You see, Congress was ready to pass "sweeping" legislation before waiting for the Transportation Department's study into the cause of the problem. In fact, the government could only confirm five deaths from unintended acceleration and couldn't confirm any of them were the result of Toyota's alleged flaw, but such trivial details were not going to stop Congress from acting.
Does this sound familiar? Think crack. After basketball star Len Bias died in 1986, Congress rushed through harsh new mandatory minimum sentences without so much as a hearing. When the media publicized a few, scary car theft-turned-homicides, Congress jumped in and made carjacking a federal crime. Time and time again, Congress has acted in the name of "public safety" without even the slightest hint of study or reflection.

Here, with Toyota, the overreaction has had severe economic impacts on the company. That's bad, but the company will survive. When Congress overreacts on anti-crime issues, however, the lives of individuals and families are ruined.

- Ingersoll

Oh, Canada!

Apparently, American legislators aren't the only fans of mandatory minimums -- our neighbor legislators to the north, in Canada, also want more of them.

But this article in the Winnipeg Press -- titled "United Front Opposes Tory Crime Bill" -- shows that legislators might be among the only Canadians who like mandatory minimums:
Backlash against the federal government's tough-on-crime agenda heightened Monday as hundreds of academics and physicians nationwide banded together to lobby against mandatory minimum sentences for drug crimes.
More than 550 doctors, professors, social workers and other academics signed a Feb. 6 letter addressed to Prime Minister Stephen Harper and the three opposition leaders opposing Bill S-10.
The legislation has been in circulation in one form or another since 2008 but has never passed because Harper either prorogued Parliament or called an election.
The bill establishes mandatory minimum prison sentences for certain drug crimes, including those connected to organized crime or where weapons are involved.
But the letter says S-10 is not scientifically grounded and might actually contribute to further harm. It says there is no evidence mandatory minimum sentences reduce drug use or deter crime. Instead, the letter's signatories argue such sentences are expensive and ineffective.
The letter points to several U.S. states, including New York, Michigan, Massachusetts and Connecticut, that are repealing "costly and ineffective" mandatory minimum sentences.
Yes, Canada, take it from us Americans:  just say no to mandatory minimums.  All they'll do is pack your prisons and bust your budget, providing little to no bang for your buck.  If our 25-year failed experiment with them can't convince you that it's a terrible idea, I don't know what can.

Canada is also considering increasing mandatory minimums for child porn production -- from 14 to 90 days.  That measure is also being opposed, with defense lawyers arguing for preserving judicial discretion and access to sex offender treatment.

Just as a point of comparison, most sentences for producing child pornography images in the U.S. start at a mandatory minimum of 15 years in federal prison for a first offense. (That's right, years.)

The next time I hear someone say we're not hard enough on child porn offenders, I'm going to tell them to take a look at Canada's laws and reconsider. There's a fine line between tough and crazy. The best sentencing option of all is to do away with the mandatory sentences and let the judge decide what's appropriate for each unique case.

-- Stowe

Florida: Teachers or Prisons? You Pick.

The Broward-Palm Beach New Times blog features this post covering FAMM's campaign to scale back mandatory minimum sentences in Florida:

As the law stands right now in Florida, if you're caught with a bottle of pain pills, you'll face the same sentence as someone charged with lewd and lascivious conduct with a child. That's 25 years in prison, with no parole, the mandatory minimum sentence.
But since Gov. Rick Scott announced his plan to cut more than a billion dollars from the state's prison system, Families Against Mandatory Minimums, a Washington, D.C.-based group dedicated to ending mandatory minimum sentencing policies nationwide, has taken up a campaign in the Sunshine State.
Greg Newburn, the Florida director of FAMM, says he hopes the governor's cost-cutting measures will provide an opportunity to change the sentencing laws in this state. "Sentencing reform is the only way to tackle the major problem," Newburn tells the Juice. "We can make small cuts here and there, but if we don't cut the flow of prisoners into the prisons, it's going to cost the state more money, not less." He adds, "The cuts have to begin on the front end."...
Right now, taxpayers spend about $20k per prisoner per year. "Two prisoners is a teacher in the classroom," Newburn says. "Every time we put two of these people in prison, we're essentially taking a teacher out of the classroom. It's time to decide what we value as a state."

Monday, February 7, 2011

What Happens When They Get Out?

Every time someone starts talking about sentencing reform, releasing prisoners early, or making a reform retroactive, someone else is bound to ask:  "But what will happen when they get out?"

The question is a good one, but the implied answer is "something bad."  But it ain't necessarily so.

Over at FAMM's website, visit our new section of Success Stories, which profile formerly incarcerated people who got out of prison and are doing great -- they've reunited with families, gotten jobs, stayed drug-free, served their communities, and raised awareness about the need for more access to drug treatment and alternatives to long prison sentences.  Some of these success stories got out of prison early because of a reform -- and none have reoffended.

We don't hear these kinds of success stories -- we usually only hear the bad stories of people who reoffend, because that's the kind of story that appeals to the media.  Recidivism rates are high, but it's important to remember that there are many, many successful former prisoners out there -- and they are living proof that people can change, that rehabilitation isn't just wishful thinking, that people need and deserve second chances.

Friday, February 4, 2011

Good and Mad Reading for the Weekend

We started this weekly feature to give our faithful readers something longer to read over the weekend than just a blog post -- and something to get them good and boiling mad about the need for criminal justice reform so they come back on Mondays ready to fight another week.

So, this week's Good and Mad Reading for the Weekend is the January/February 2011 issue of The American Prospect, which you can read cover-to-cover right here.  The entire issue focuses on sentencing reform, and the cover story is about mass incarceration in America.  Other articles range from community policing to increasing transparency in juvenile criminal proceedings to problem-solving courts.

Enjoy, leave a comment, and we'll see you next week.

Real Justice is Sane, Affordable

That's the title of this good op-ed in Georgia's Ledger-Enquirer, which provides as good an indictment against mandatory minimums as we've seen in awhile:

People have warned, since well before the first of these ridiculous exercises in political machismo were signed into law by governors knee-knocking scared to be branded “soft on crime,” that the ultimate cost of stuffing prisons with nonviolent offenders would be prohibitive.
The bill has now come due, with interest. And lo and behold, what sensible appeals to basic justice and long-term fiscal responsibility couldn’t accomplish, a state budget crisis very well might. ....
Sentencing laws that remove all discretion from courts and make individual circumstances legally irrelevant have always been an affront to justice and fiscal sanity, even in prosperous times. Now it’s obvious -- as it should have been all along -- that such laws are not just unconscionable, but unaffordable.
Over at the Savannah Morning News, this op-ed echoes the approval of reforms suggested by Republican Governor Nathan Deal:
Gov. Nathan Deal is on the right track with his proposal to divert nonviolent drug offenders from prison to alternative programs.
That's what Chatham County has been doing for about a decade, and the track record is encouraging. It makes sense to try to replicate it across Georgia.
All we get from locking up crackheads, meth users and other addicts - besides a hefty bill - is 17 percent of our prison population who become better criminals when they are eventually released.
Why lock people up at public expense if you can clean them up and get them to become productive citizens?
Why, indeed?  Deal's proposal, detailed here, sounds like a good deal for Georgians and is getting bipartisan support:
"One out of every 13 Georgia residents is under some form of correctional control," [Deal] said. "It costs about $3 million per day to operate our Department of Corrections." ... 
State Sen. Vincent Fort, D-Atlanta, noted Deal's proposal has earned widespread bipartisan support.
"It's a sort of convergence of liberal and conservative ideas," he said. "This idea is fiscally sound as well as socially responsible.
"We need to distinguish between the people we are afraid of and those we're just mad at. We can't afford to lock up everyone."
It probably doesn't hurt that Gov. Deal's son is a judge who runs an alternative sentencing court in Hall County.

When I think about Georgia, I don't think "hard on crime" -- I think "crazy on crime."  Could those days be over soon?

-- Stowe

Thursday, February 3, 2011

Those Sneaky Mandatory Minimums

Mandatory minimums are beloved by prosecutors for their supposed ability to give prosecutors leverage to get a defendant to plead guilty.  But what happens when the prosecutor's got the plea in the bag ... and then finds out he can't get around the mandatory minimum -- even though he wants to? 

Here's an interesting case in which that apparently happened.

The defendant: Scott Bloch, a former lawyer in the George W. Bush administration who pled guilty to misdemeanor contempt of Congress -- a crime that, yes, actually carries a mandatory minimum prison sentence of one month.  Even the prosecutors in the case didn't want to give it to him -- they actually asked the judge not to apply it and argued that applying it wasn't necessary. (Read all about it in the court's order.)

The judge's order is worth reading because it gets into where this mandatory minimum came from in the first place:  a proceeding (which the court doesn't describe in detail) in the House of Representatives in 1857 in which someone apparently wasn't as responsive to the Congressmen's questions as they'd have liked him to be.  In their ire, Congress created the mandatory minimum to punish people who refused to cooperate.  This isn't surprising:  almost all mandatory minimums are created in the heat of Congress's anger or fear about some crime du jour.  (Here's a fun cocktail party game:  use FAMM's complete list of mandatory minimums and guess what inspired their creation by looking at the dates they were passed!)

Before Bloch, the contempt of Congress statute had only been used twice ... and both cases resulted in sentences of probation.  Bloch got the mandatory minimum.  Any takers on a bet that there'll be an appeal?

Heroin, Terror, and National Security


The team advances to another field, and from a crumbling house a woman emerges, shrieking, "For God's sake, don't destroy it! We don't have anything else!" The men say nothing and keep swinging. A few minutes later, they discover another poppy field, surrounded by brick walls. Two small children stand against the wall, crying loudly as the officers approach. An older sister tries to comfort them as their mother hollers, "These children have no father! How will I provide for them now?"
These poignant words, from an Afghan woman growing poppy (a/k/a the source of heroin and opium), show the supplier's perspective on the War on Drugs.  

The February 2011 issue of National Geographic Magazine has this interesting article on efforts to stop poppy farming in Afghanistan. The poppy crop is one point at which the War on Drugs and the War on Terror intersect:
Afghanistan's share of worldwide opium production skyrocketed from 19 percent in 1986 to 90 percent two decades later. The greatest factor, however, was the Taliban. When it first came to power in 1996, the new Islamist government garnered support from tribal leaders by agreeing not to crack down on poppy cultivation. The supreme leader, Mullah Omar, received regular funding from trafficking groups, which he allowed to operate freely. At the same time, the new Afghan government levied a 10 percent tax on all agricultural profits. By 1999 Afghan opium production spiked to more than 5,000 tons, prompting pressure from the UNODC for a crackdown. In July 2000 Mullah Omar issued a fatwa, or religious decree, declaring opium production a violation of Islam. The Taliban enforced the ban with brutal efficiency, as one former poppy farmer told me, "by threatening to set your house on fire." The result was a massive 91 percent reduction in poppy growing in one year. After the U.S.-led invasion of Afghanistan and the fall of the Taliban in 2001, regional warlords once again cranked up opium production. No longer in power, the Taliban now saw opium as a way to fund their insurgency.
The article doesn't discuss reducing American demand for the drug. Drug treatment courts and community supervision are cost-effective and proven to help people stay drug- and crime-free (as opposed to mandatory prison sentences, which are only proven to drive up corrections budgets). Another selling point for using these alternatives instead of harsh prison terms:  reducing demand for drugs could advance our national security interests.

Wednesday, February 2, 2011

Show Me the Alternatives!

Gil Kerlikowske, career law enforcement officer and current drug czar, offers a thoughtful and well-written commentary in The Huffington Post on how we should taking a public health approach to America's drug problems.

Drug use fell throughout the 1980's, to some of the lowest levels we've ever seen - but spending on overcrowded prisons spiked to unsustainable levels, the criminal justice system came to resemble a revolving door, and the relationship between police and the communities they serve was frequently strained to the breaking point. Eventually, progress stalled and use began to rise again as it became clear that our mostly one-sided response needed retooling. Many Americans were also forced to confront a difficult truth -- that the face of the drug problem was too often that of a son, an aunt, a wife, or a father.
(Too true, as our Profiles of Injustice show.  If you haven't read them, take a glance.  Look like someone you know?  You betcha they do.)  Mr. Kerlikowske seems to say that all this incarceration has caused drug use to drop, but alas, there's no solid evidence supporting that connection.  Drug use ebbs and flows based on many factors, only one of which is incarceration.

Kerlikowske rightly praises the Obama administration's achievements (including passing crack sentencing reforms last year) and effort to focus on treatment, prevention, and alternatives to long prison sentences for drug offenders:
But we also know we can make progress by employing evidence-based strategies. Despite recent increases in drug use, it is half of what it was 30 years ago, cocaine production in Colombia has dropped by almost two-thirds, and we're already successfully diverting thousands of non-violent offenders into treatment instead of jail by supporting alternatives to incarceration.
Last year, President Obama also signed into law the Fair Sentencing Act, which dramatically reduced a 100-to-1 disparity between trafficking offenses for crack and powder cocaine. We're also providing communities with the capacity to prevent drug use and drug-related crime, increasing funding for drug courts and other alternatives to incarceration by millions of dollars, and using community corrections programs involving swift, certain, yet modest sanctions to monitor and support drug-involved offenders.
All of this sounds great, and all of it is needed.  Here's our beef:  these alternatives don't exist in the federal system!  There are no federal drug courts getting federal funds; no federal treatment alternatives; no meaningful alternatives to prison available to the vast majority of federal drug offenders -- just long mandatory minimums and long guideline sentences.  The federal system is the world's largest penal system, and its numbers are damning:  federal prisons are at over 40% over capacity, stocked with 210,000 prisoners -- over half of which are serving time for a drug crime!

Treatment, alternatives to prison, community supervision, drug courts -- we need more of these in the states, but we also need more of them in the federal sentencing system.  Kerlikowske and President Obama can't control what state legislatures decide about their sentencing policies, but they can influence what becomes available in the federal system.  A good start would be getting rid of mandatory minimum sentences for drugs, giving more flexibility to judges sentencing federal drug cases, and providing meaningful access to drug courts and probation for federal offenders.

Kerlikowske says we have "no choice" but to change the way we address our drug problem.  He's right. Part of that change must include making federal drug sentencing policies smarter and fairer.

A Baseball Story

AP Photos
We all know I (Stowe) am a big bleeding heart, so I'm going to share a sentencing story with a happy ending.  And it just so happens to involve America's pastime and the best sport ever created:  baseball.

(Football fans, try not to hate.)

Growing up, my brother was a rabid Kansas City Royals fan. Any self-respecting KC fan knows of Willie Mays Aikens:
In the 1980 World Series against the Philadelphia Phillies, the left-handed hitting Royals first baseman and designated hitter batted .400, drove in the winning run in the Royals' first World Series game win ever and became the first player in history with two two-homer games in a single Series. Aikens hit 88 home runs during four years with the Royals beginning in 1980 and a total of 110 homers in a career that also included two-year stays with the Angels and Blue Jays. His lifetime batting average was .271.
What some don't know is that Mr. Aikens also spent 14 years in federal prison for a crack offense.  Now, he's out (thanks to the 2007 changes to the crack guidelines, which FAMM and many others worked hard to make retroactive) and doing great.  He's got a new job, too:  coaching for the Royals' farm system.

Read all about it in this ESPN article.  Says Mr. Aikens on his new job:
"I don't want to just teach young players about the fundamentals of hitting but to help and mentor some of the guys if they are having problems off the field," Aikens said. "I have that life experience, as a person who was successful and hit rock bottom. If I can go in and talk to the guys and keep them from going in the same direction I went in, it'll be a blessing for them, too."
Mr. Aikens is an excellent example of how much formerly incarcerated people have to offer to society, and we offer him our congratulations on his new job.

-- Stowe

Tuesday, February 1, 2011

Sentencing Nerd Red Alert!

With the advent of guideline amendment season, we have yet another Sentencing Nerd Red Alert!

Pull out your pocket calculators and your wallet-sized guideline charts (just kidding -- no such thing exists...I think), because the U.S. Sentencing Commission just released its data analysis on the retroactive impact of the Fair Sentencing Act conforming guideline amendments.

In English, what that means is this:  IF the Commission's changes to crack sentencing guidelines go through this year, and IF (and only if) they are made retroactive, between about 12,800 and 15,230 currently incarcerated crack offenders would be eligible to seek reduced sentences.

KEY WORDS:  Retroactivity is no guarantee.  We don't know if the Commission will go for it or not.  And even if it does, sentence reductions won't happen automatically.  People in prison will have to file a motion with the court that sentenced them, and the judge will decide if the person's sentence should be cut.

But for true sentencing nerds, the retroactivity analysis makes for interesting reading.  So nerd out, sentencing nerds!

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