Thursday, March 31, 2011

Required Reading on Florida & FAMM

If you only read one thing about FAMM's work in Florida, read this superb article by Jeff Gore in the Orlando Weekly.  It covers every aspect of mandatory minimum reform, from the introduction of a bill to the possibility of making a reform law retroactive.  It shares the story of Scott Earle, putting a human face on the problem.  It shares the history of Florida's horrible drug laws and the benefits of changing them.

We're still just at the beginning stages of getting bills moving, but with Florida's overstuffed prisons and jaw-dropping corrections costs, something's gotta give soon in the Sunshine State.

There are so many good parts, it's tempting to include the whole thing.  Here's just a small piece, explaining why new reform bills are revolutionary, and what we're up against.  Read it all, and share with friends:
HB 917 is a forward-thinking criminal-justice bill: It would create a reentry program for nonviolent offenders that would involve substance-abuse treatment, adult basic education courses, vocational training and other rehabilitation programs, and the bill could cut a prisoner's sentence by up to half. In its original form, the bill also called for the elimination of all mandatory minimum sentencing guidelines for non-violent 
drug offenses. The bill's sponsor, State Rep. Ari Porth, D-Coral Springs, says that the state could spend far less money on corrections - and furthermore, get far better results - if non-violent drug offenders were rehabilitated, rather than incarcerated. Despite having evidence to support his theory, it's a proposal he didn't dare present until this year.
"I think the fact that our state has a multi-billion dollar budget deficit is making this legislation, [which] wouldn't have been able to be talked about several years ago, something that's actually viable," he says. The argument was shot down by Florida's Speaker of the House, Dean Cannon, who appoints the committees that decide whether a bill gets to live or die. (In a March 21 budget allocation memo to House committee leaders, Cannon wrote: "The House budget will not revise adult sentencing policies, change inmate release schedules, or take any action that jeopardizes the long-term safety of the public to save money in the current fiscal year.") But the fact that the issue has been raised at all suggests a shifting mentality in Tallahassee regarding crime and punishment - even if it is one that's being driven primarily by fiscal necessity, rather than concern about criminal-justice policy.
With a budget of $2.4 billion, 
the Department of Corrections is the state's largest agency; consequently, it has earned a prominent place on Gov. Scott's chopping block (the governor's office did not reply to requests for comment on this story). Shortly after he was elected, Scott appointed a "Law and Order Transition Team" that recommended an overhaul of the state's mandatory minimum laws and in his budget proposal, he suggested cutting nearly 1,700 jobs from the Department of Corrections, which he says would save the state more than $80 million.

Wednesday, March 30, 2011

Add Alabama!

Yet another state is lining up to consider budget-cutting, prison-population-reducing, smart-on-crime legislation.  It's Alabama (yes, that Alabama).  There are some great quotes in this article from The Birmingham News:

A broad package of sentencing and corrections reform bills aims to reduce the state prison population, then use the savings to bolster supervision of convicted felons and improve public safety, said Chief Justice Sue Bell Cobb.
"It's the theory of reinvestment," Cobb said. "You invest the savings to get an even better result."
If the bills introduced already in the current session of the Legislature are approved, the state would save $106 million in prison costs within five years, Cobb said. ...
"The fact we are [considering these bills] shows how historic this package of bills is," said state Sen. Cam Ward (R-Alabaster), co-chairman of the Senate Judiciary Committee. "They're controversial. But prison overcrowding is so bad, we can't be afraid to talk about it."
What a great attitude!  The bills could cut the prison population by 5,000 in five years, the article says.  

If Alabama can do it, anyone can.  

How Would Moderate Media Change Sentencing?

I offer this question after finding a brief but fascinating article in last week's Washington Post, titled "Mexican Journalists Agree to Limit Grisly Images of Drug Violence."  Here's the concept:

About 700 news executives — including the television duopolies Televisa and TV Azteca, and top newspaper editors and commentators — also vowed “to avoid becoming unwitting tools for organized crime.”
Mexico’s news media offer a daily dose of photographs and videos of victims of drug violence, including beheadings, bodies hanging from bridges and scenes of alleged gang members — and even police — being tortured by masked sadists.
The journalists noted that the public displays are designed to terrorize the populace, intimidate authorities, and send chilling, coded threats to opposing drug organizations.
The nonbinding guidelines allow for continued use of bloody images. But in an apparent nod to complaints from President Felipe Calderon’s government that things are not as bad as the media report, the news groups pledged to “always present information in the right context and proportion” and to report “how it compares to what has happened, or is happening, in other regions and countries.”
This concept of agreeing to try to keep things in perspective is fascinating.  In the U.S., it would raise some serious First Amendment concerns to have a president ask the media to tone it down, but toning it down may be just what we need to avoid knee-jerk reactions and unwise, expensive sentencing laws that don't make us safer.

Most mandatory minimums are created in the frenzy and heat of an uber-publicized crime.  In the 1980s, over-heated media and fear-mongering stories contributed to public paranoia about drug abuse and urban drug-related violence.  Congress listened, didn't do its own research, and created our current drug laws.

Is it any surprise that a mandatory minimum of 10 years for avoiding apprehension after a bank robbery was created in 1934, after a huge media storm surrounding Bonnie and Clyde's career?  Or that Congress created a mandatory life sentence for killing a President in 1965, the year after the Warren Commission's report on President John F. Kennedy's assassination became a hot news topic?  These don't seem like coincidences.

The recipe for mandatory minimums reads like this:  First, find the "crime du jour"  that is making people nervous, scared, or upset.  Next, add extensive media coverage -- the more frightening, the better.  Finally, pass a law with a tough mandatory punishment attached.  Voila!

Enough!  How about keeping things in perspective in crime reporting and in legislating?  Hysteria and sensationalism shouldn't drive sentencing laws, and they're not good journalism, either.


Tuesday, March 29, 2011

A DOC Chief Calling for Mandatory Minimum Repeal?!

You betcha.  Florida's chief of the Department of Corrections is, according to this article in The Bradenton Herald.  And with Florida's huge prison population and a budget crisis, legislators should listen up:

Ed Buss doesn't look like a revolutionary.
The low-key Midwesterner has taken the state Department of Corrections by storm as he sets about reforming and revitalizing the nation's third-largest prison system, a place long hostile to change and where outsiders are viewed with suspicion. ...
In hyper-partisan Tallahassee, Buss is receiving the highest compliment of all: high praise even from some Democrats who despise most of [Gov. Rick] Scott's policies. In just six weeks, Buss has:
• Called for a major new financial commitment to helping prison inmates re-enter society so they can start new lives and become less likely to return to prison.
• Fired more than a dozen highly paid administrators and proposed a 5 percent pay cut for all wardens and the privatization of all prison health care programs.
• Banned smoking by an estimated 60,000 inmates after voicing shock that prisons were still not smoke-free in 2011.
Urged the Legislature to abolish mandatory minimum prison sentences in some cases, saying that judges should be given more discretion and that some people may be in prison who don't belong there.
• Proposed that corrections officers switch from eight-hour days to 12-hour shifts to cut down on commuting costs and give more officers more weekends off.
• Suggested closing three prisons to cut costs and improve efficiency, including shutting the only faith-based prison for women in Tampa.
Seriously, who knows the need for sentencing reform better than the guy whose job is to keep everyone locked up?  When too many prisoners sit in cells for too long, space fills up fast, and it's corrections officials who have to deal with the fall-out every day.  It's refreshing to see a corrections chief calling it like he sees it and telling the legislature that mandatory minimums are the problem.

More like Buss should do the same.

Drug Crime Down in the Delta

Mississippi is in focus today, with the release of a new report by the ACLU called Numbers Game: The Vicious Cycle of Incarceration in Mississippi's Criminal Justice System.

This AP article in the Clarion-Ledger details why Mississippi is in dire need of sentencing reforms.  It offers the story of Atiba Parker, a FAMM member and first-time offender serving a 42-year sentence for a nonviolent drug crime, as just one example of the insanity of Mississippi's drug sentencing laws:

The [ACLU] report said the state's criminal code has a rigid and excessive schedule of mandatory minimum prison terms for drug possession that vary according to the weight of the drugs involved. For example, an individual possessing less than one-tenth of a gram of cocaine - about a tenth of what's in the size of a sugar packet - can be charged with a felony, which carries a mandatory minimum sentence of one year in prison.
The length of the mandatory sentence increases as the weight goes up, with possession of little more than an ounce of cocaine requiring a 10-year mandatory minimum. Such sentences have resulted in crowded prisons and a ballooning financial strain on the state, officials said. Mississippi has the second-highest incarceration rate in the nation, at 749 prisoners per 100,000 residents, according to the report.
According to the report, black offenders are three times more likely than white offenders to go to prison on drug charges, even though drug use rates among the two groups are nearly identical.
The ACLU's reform suggestions include replacing mandatory minimums with flexible sentencing guidelines, creating a safety valve for mandatory sentences, and redirecting money to drug treatment and prevention.

The article, report, and Atiba's story are all worth reading.

The question for Mississippi legislators: do you really want to keep paying for decades of prison time for people like Atiba?

Monday, March 28, 2011


In case you missed it, below is a clip of FAMM's Julie Stewart and FAMM members Karen and Lawrence Garrison on the CNN show "Issues with Jane Velez-Mitchell."  Karen and Lawrence did a terrific job sharing the heart-rending story of how mandatory drug sentencing laws have kept twin brothers Lawrence and Lamont apart for over a decade.  Share it with your friends.

Great Story to Start Your Week

The Kansas City Star has this great story about the ability of some offenders to start anew and become productive members of society. Here's the catch: you have to give them a chance.

From the story:

Alice Maurer is a 26-year-old whirlwind of shiny optimism. She smiles easily and is a fountain of upbeat aphorisms, the kind you’d expect from a former aerobics instructor.
“A dream is only a dream without a plan,” she said. “You have to put a plan behind it to make it a reality.”

Or this one: “The good thing about a problem is that in order to be called a problem, there has to be a solution.”

Not exactly what you’d expect from a woman who, not long ago, finished 37 months in federal prison for distributing methamphetamine.

Maurer is one of the star pupils of a year-old federal court program in Kansas City that seeks to help former offenders who are at high risk of returning to prison.

Under the direction of U.S. District Judge Ortrie Smith, a team of probation officers, lawyers and service providers intensely focus on a group of 20 or so probationers, doing everything within reason to keep them sober, employed and crime-free.

In exchange, the participants can have years shaved off of their probation.

The work is difficult, said Kim Grace, a senior federal probation officer. Probationers have tested positive for drugs, missed counseling sessions and failed to find employment.

The larger consequences couldn’t be more serious: Be part of the two-thirds of all federal probationers who successfully manage their lives and do not return to prison or join the 33 percent who do.

Successes such as Maurer keep everybody going, Grace said.
Enjoy your week.

Friday, March 25, 2011

Good and Mad Reading for the Weekend

This article from the Denver Post is sure to push some buttons.

The title says it all:  "DA Chambers Offers Bonuses for Prosecutors Who Hit Conviction Targets."  Here's how it starts:
Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.
The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.
Chambers, whose office handles prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, said she set up the standard to encourage her team to meet minimum requirements in line with statistics in comparable jurisdictions. The bonus pool, which comes from an office surplus, and the use of standards to determine who gets part of it are similar to incentive compensation used in private industries.
There are two major problems with this:  first, prosecution isn't a private industry, and second, prosecutors have to abide by ethical rules -- namely, that prosecutors are supposed to do justice, not win convictions.  The whole article, in fact, is a fascinating study in how the job description of a prosecutor has gotten warped over time.  Speaking as a former prosecutor, I know a little bit about this.  The job isn't to take cases to trial.  It's not to become a fearsome trial lawyer.  It's not to win convictions, lock as many people up as you can, or lock them up for as long as you can.  The job is to do justice, even if it's favorable to the defendant, even if the prosecutor "loses."  I would argue that prosecutors who do justice never lose.

What could be the consequences of such a bonus policy, for defendants and the public?

Prosecutors may become less willing to offer plea bargains -- even if it's the right thing to do.  Prosecutors may become more likely to go to trial -- which costs taxpayers a fortune, even if it's unnecessary.

How would you feel if you were being charged by a prosecutor who got paid more to take you to trial and win?

Is that fair?  Is that ethical?  Is that the kind of justice system we want?

-- Stowe

"I Hated Fridays"

So says former Washington state superior court judge Glenna Hall in this moving article from The Atlantic.

Why was the ex-judge bemoaning Fridays instead of TGIF'ing like all of her other government coworkers?  Because Fridays were the days she had to sentence drug offenders under Washington's rigid sentencing guidelines:

One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me. Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office. His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit. He wept as he told of us his long addiction and his recent attempts to get clean. He couldn't go on living this way, he said. He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison. He begged me to help him get into some kind of program. He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change. By the time he finished speaking, I was the only person in the room not crying. With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence. There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.

People like this appeared before me week after week. I hated Fridays. I came home from work with the memory of what seemed to me to be injustices I had done. I considered resigning from the best job I had ever had.
It's not just mandatory minimums that hog-tie judges and force them to hand out heartless punishments that won't help offenders or taxpayers -- mandatory sentencing guidelines can be just as bad.

Thursday, March 24, 2011

Can I Get a Witness?

Have you ever noticed that a horrible act by a single person - say, a parolee commits another crime - is considered sufficient to impose harsh new criminal penalties or to abolish entirely a state's early release program BUT the fact that a first-time, non-violent offender gets 30 years in prison is dismissed as anecdotal and an insuffiicent basis to reconsider sentencing laws?

Should we make broad policy based on singular events? I don't think so. But if we are going to use anecdotes to legislate, they should at least be used in both directions, i.e., to incarcerate and to liberate.

- Ingersoll

More Victims, Less Victory

Tomas Munita -- The New York Times
I cannot think of any better proof that mandatory minimums are not helping us win the War on Drugs than this sad, must-read article in The New York Times.

The article describes the increase -- increase! -- in violence and drug trafficking in Central America in recent months and years, despite the U.S.'s best attempts to stop it, deter it, fight it, kill it.  We're not succeeding at any of those things, just making drug cartels move their operations (and their violence) into poorer countries who don't have the resources to fight them off:
“She was trying to tell me something,” [Josue Oviedo] said, a day after the funeral for Daisy Oviedo Mej√≠a, 22, who died in a storm of bullets while watching her brother play soccer a few weeks ago. “But she couldn’t. I gave her mouth-to-mouth but there was too much blood.”
Ms. Oviedo, a primary school teacher who liked to dance and sing with her students, was one of four people killed that day when gunmen opened fire at a park, the second such massacre here since November. She was innocent, the authorities said, another casualty in the violence and social ills rocking Central America as criminal groups turn the region into a main artery for funneling cocaine north to the United States.
Our wide-scale demand for drugs isn't just wreaking havoc at home, it's also destroying lives from here to Brazil.

Our solution to our drug demand problem?  Give people ridiculously long, mandatory prison sentences.  Twenty-five years ago, Congress thought that would solve it.

It hasn't.

Long mandatory sentences haven't given us victory -- they've only given us more victims.  More prisoners, more prisons, higher costs, and little to no impact on the production and trafficking of drugs.  More violence in places that source our addictions.  It's time for a different approach, an approach that isn't one-size-fits-all.  It's time to admit that we can't incarcerate our way out of this problem.  Courts need more options -- better, smarter, more cost-effective -- for handling drug offenders.

Our insatiable appetite for drugs won't be conquered with crazy sentences.

Is anyone else as sick of this madness as I am?

-- Stowe

Wednesday, March 23, 2011

Heating Things Up in Florida

FAMM has been doing some great work on sentencing reform down in Florida.  The state has some of the worst mandatory minimums in the country for drug crimes.  In this letter to the editor in the Sun-Sentinel, FAMM's Florida Project Director, Greg Newburn, gives a short and sweet lesson on the high costs of high mandatory sentences:
Legislation recently filed in Tallahassee would eliminate mandatory minimum sentencing for drug trafficking, and save Florida taxpayers millions of dollars. State Sen. Ellyn Bogdanoff and Rep. Ari Porth should be applauded for introducing bills SB 1334 and HB 917, which would help restore fairness and efficiency to Florida's sentencing laws.
Department of Corrections data from 2008 show that nearly 6,000 people were serving mandatory minimum drug sentences in Florida prisons, at a cost to taxpayers of nearly $120 million annually. A full 544 of these were prescription drug offenders — many of them addicts — whose mandatory minimum sentences can reach up to 25 years. Incarcerating these prisoners will cost Floridians nearly $1 billion. Seventeen states facing fiscal crises similar to Florida's have enacted significant sentencing reforms in recent years, each saving millions of dollars and reducing pressure on overcrowded prisons, while protecting public safety.
The Sun-Sentinel supported the legislation in this editorial from March 14, calling for its passage:
The measure faces tough sledding in the Florida Legislature. Lawmakers are preoccupied with closing the state's $3.6 billion budget deficit, and typically are reluctant to spend money on initiatives that may be seen as coddling criminals. The bill is also causing some heartburn among prosecutors who, right now, have the authority to waive mandatory minimum drug sentences. Some worry that eliminating mandatory minimum sentences will undermine their ability to leverage information that may lead to bigger arrests, as if prosecutors don't have other ways to craft deals.
Fortunately, this initiative is neither soft on crime nor hard on prosecutors. It's a refreshing attempt to put the state in a better position to operate its prisons more affordably and efficiently by providing an alternative to an incarceration policy that simply locks doors and throws away the keys.
BOTTOM LINE: The Legislature should approve this bill.
The bills are SB 1334 and HB 917.  You can learn more about FAMM's work in Florida right here.

Tuesday, March 22, 2011

Midwestern Budget Makeover

Some stuff we missed over the weekend shows yet again how budget crises have a silver lining for sentencing reformers, this time in the Midwest:

In Ooooohhhhhklahoma, there's more than wind sweeping down the plains:  there's sentencing reform, too!
Last week, by a vote of 87-4, House members, Democrats and Republicans alike, passed a prison reform measure embraced by both fiscal conservatives and social reformers. House Bill 2131 still must get through the Senate but with a $500 million state budget hole, the Senate needs to help make some changes in corrections or get off the pot.

Steele's bill would make strategic changes including limiting the governor's role in the parole process for nonviolent offenders. Oklahoma is the only state whose governor must sign off on every parole. This creates a logjam, costing the state huge amounts of money while parole applicants await a decision. With HB 2131, the governor still would decide paroles in cases involving certain violent crimes. But, in other cases the state Pardon and Parole Board's recommendation would go into effect if the governor didn't act after 30 days.

The bill also would expand eligibility for community sentencing - a huge step. For many nonviolent offenders, this is a cheaper and far more effective punishment and deterrent against recidivism than warehousing them in prison where they receive little treatment for drug addictions and little job training. In the community, they would be required to work and would receive treatment options.

The bill also calls for greater use of Global Positioning Systems to monitor more offenders - an option that is far less costly than spending $18,000 a year to incarcerate an offender.
This editorial from the Lincoln, Nebraska Journal-Star calls on state legislators to get in gear and get the corrections budget in the Cornhusker State under control:
In a report released last month [by the Platte Institute], authors Marc Levin and Vikrant Reddy reported that between 1995 and 2005, Nebraska's prison population grew by 34 percent. During the same period, spending on corrections nearly tripled from $72 million to $206 million.
"Locking up dangerous violent offenders for long periods, though costly, is undoubtedly a sound use of taxpayer's dollars," the report states. "The growth in Nebraska's prison population and costs, however, is largely the result of increased incarceration of nonviolent offenders for short periods of time."
The report suggests that the key question that should be asked by budget hawks and policymakers is "not how many people are in prison, but how much public safety and victim restitution is obtained for each dollar spent."
That's where conservatives and progressives find common ground. It turns out that for some offenders, particularly nonviolent drug offenders, there are more effective options than doing hard time in prison.
Some of those alternatives have been tried on a limited basis in Nebraska, but more can be done to expand alternatives that are "consistent with the principles of limited government, fiscal responsibility and public safety that have proven successful in empirical research in and practice on a limited basis in Nebraska and in other states, such as Texas," according to the report.
For Nebraska sentencing afficionados (or true sentencing nerds), you can read the full report from the Platte Institute here, or skim the highlights here.

Monday, March 21, 2011

Massachusetts Monday

Our work at FAMM isn't just about getting rid of mandatory minimums -- we're also working to make sure more don't get created. Often, when there's a (usually violent) crime that gets a lot of media attention, legislators are quick to propose and pass more mandatory minimums. In turn, the taxpayers get stuck with expensive, prison-packing sentencing laws that do little or nothing to make them safer.

After a career criminal on parole in Massachusetts shot and killed a police officer in December 2010, there are renewed calls to make the state’s habitual offender law tougher and to eliminate parole for habitual offenders. The bill getting the most support is called "Melissa's Law."

This article in the Lowell Sun details a hearing held by the Legislature’s Judiciary Committee last Wednesday, at which crime victims argued for the bill and sentencing reform advocates argued for a smarter approach:
Melissa Gosule was a 27-year-old substitute teacher when she was killed in 1999 by a stranger with a combined 27 criminal offenses who gave her a ride after her car broke down in Bourne.

[Police officer] Maguire was killed by Domenic Cinelli, a career criminal sentenced to serve three life sentences, during a department-store robbery.

Calls to toughen sentencing in response to those incidences is meeting resistance.

Barbara Dougan, director of [Massachusetts] Families Against Mandatory Minimums, compared the bills to drug-sentencing laws that target "drug kingpins," but wound up overcrowding prisons with minor offenders.

"We are casting our nets far too wide and will end up with unintended consequences of people being in prisons for lengthy [periods] who do not deserve or need those sentences," said Dougan.
Although everyone who testified in favor of the bill spoke about targeting repeat violent offenders, Melissa’s Law would actually apply to those convicted of any three felonies. Governor Deval Patrick also filed his own habitual offender bill. It is somewhat more focused, targeting those who have been convicted of two violent or serious crimes, but also would allow an habitual offender conviction based on any third felony.

In our written testimony, FAMM described California’s disastrous experience with its “Three strikes and you’re out” law, a law that is much more narrowly tailored than Melissa’s Law and similar to the Governor’s bill:
Certainly every state must contend with its own budget issues, prison populations and political landscape. But it is also true that Massachusetts can learn from California’s experiment with an habitual offender law that has sent thousands of non-violent or non-serious offenders to prison for lengthy mandatory sentences. California’s “three strikes” law was not the only reason for dangerous prison overcrowding and the costly litigation it spawned, but it was one of the contributing factors. It is noteworthy that California was forced to expand parole in order to release prisoners early. Surely it is better public policy to craft sentencing policies that only target those who present a danger to public safety in the first place.
Read our testimony here.  

FAMM opposes the creation of new mandatory sentences in Massachusetts. It's not smart on crime, it's not wise fiscal policy, it's not good justice, and it won't make Massachusetts safer.

Friday, March 18, 2011

Sentencing Commission Update

Yesterday the U.S. Sentencing Commission had a public meeting to discuss this year's proposed amendments (changes) to the federal sentencing guidelines.  FAMM's Mary Price testified before the Commission, asking it to

  • Make the Fair Sentencing Act's changes to crack guidelines permanent AND retroactive and
  • Reduce the guidelines for other drugs by two levels, so that drug guideline sentences are fairer and not higher than the mandatory minimums.
We don't know what the Commission will do.  There will likely be a vote later this year on crack changes and retroactivity, but the Commission may not vote on other drug guideline changes at all this year.  But there's still some time to send the Commission a letter and ask it to do the right thing.  Click here and make sure your letters get there by March 21.

What Ever Happened to "Local" Crime?

The Washington Times features this excellent op-ed co-written by FAMM President Julie Stewart and Justice Fellowship President Pat Nolan.  The focus of the piece: how Congress has turned what used to be local crimes (carjacking, drug crimes) into federal crimes, then slapped harsh mandatory sentences on them.  The result:  an overcrowded federal prison system that costs taxpayers a fortune without making them much safer.  Because it's so good, we reprint it below in its entirety.  Enjoy.

NOLAN & STEWART:  Don't Make a Federal Case Out of It

Recently, the Republican-controlled House of Representatives enacted a new rule that requires all federal lawmakers, when introducing a new piece of legislation, to cite the specific "power or powers granted to Congress in the U.S. Constitution to enact the bill." We applaud the new leadership for ensuring greater adherence to our nation's founding charter. We are especially hopeful that this renewed commitment to constitutional principles will halt the growing federalization of crime.

In Federalist 45, James Madison said that criminal justice - which he referred to as "the internal order ... of the state" - was among "the powers reserved to the several states." Similarly, Alexander Hamilton wrote in Federalist 17, "There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, I mean the ordinary administration of criminal and civil justice." This view dominated the first half of the nation's history. The federal government was such a minor player in criminal justice that it did not even need a prison of its own (except for soldiers and sailors) for the first 104 years of our country's history.

Fast-forward to the present, and one will see an exploding federal prison system that holds nearly 210,000 inmates. This growth is the result of an explosion in the number of federal crimes. The Congressional Research Service found a whopping 4,450 federal crimes. There actually are more, but the service stopped counting there. In addition, the various federal regulatory codes contain tens of thousands more crimes.

Traditionally, criminal sanctions were reserved for actions that were morally reprehensible, such as murder, rape, arson and robbery. Now, however, people languish in federal prisons for such trifling acts as mislabeling orchids for shipment and transporting lobsters in plastic bags rather than cardboard cartons. It would be funny except that ordinary people have been labeled as felons and have lost their freedom. Plus, hundreds of thousands of dollars have been squandered on prosecuting such "dangerous criminals."

We know that new federal crimes are added in response to high-profile crimes. For instance, after the death of basketball star Len Bias and the release of a blaxploitation film, "New Jack City," there was an explosion of federal drug laws. The nightly news spread fears of a crack-cocaine "epidemic," although little was known about the drug or its effects at the time. We now know that crack is pharmacologically the same as powder cocaine. The main difference is that crack is cooked and sold in local neighborhoods because it is too unstable to be transported. So, by definition, possession of crack is a local crime. It is cocaine powder - from which crack is manufactured - that is transported across our borders and state lines. That is where the federal government should be focusing its efforts.

Similarly, a couple of frightening and widely reported car-thefts-turned-murders spurred the creation of a new word - carjacking" - in the nation's lexicon, and Congress jumped in, adding a new offense in the federal criminal code even though the carjackings were not part of any national syndicate but were merely the acts of local thugs.

Too often, Congress has turned traditionally state and local offenses into federal crimes. Worse, it routinely has attached mandatory minimum sentences to the new crimes it has created. Years of experience and research have revealed that those mandatory sentences overfill prisons and bankrupt budgets but don't reduce crime effectively. In an age of global terrorism, does it make sense to divert scarce federal resources to investigate local crimes?

Perhaps most surprising about the federalization of local crimes has been that conservatives have supported it. Fiscal conservatives, who in most other areas of governance advocate for state autonomy and flexible approaches to national problems, have voted for these new federal crimes with one-size-fits-all penalties.

That is changing. Several prominent conservatives, including former Attorney General Edwin Meese, former House Speaker Newt Gingrich and former drug czar Asa Hutchinson are part of Right on Crime (, which seeks to reserve expensive prison beds for dangerous criminals while having mandatory community punishment for offenders who are not dangerous. This will save a tremendous amount of tax dollars and still keep us safe.

These conservative leaders are part of a growing bipartisan consensus concerned about the twin dangers of overfederalizing crime and overcriminalizing activity in general.

The new House rule will force members of Congress to base their legislative proposals on explicit grants of constitutional authority. We think those seeking to expand federal jurisdiction over crime won't find any authority for their power grab in the Constitution. We also think a genuine commitment to constitutional principles will lead the House to reverse the trend of overfederalization. Americans will be freer as a result.

Pat Nolan is vice president of Prison Fellowship. Julie Stewart is president of Families Against Mandatory Minimums.

Wednesday, March 16, 2011

Feds Feel the Pinch, Too

It's not just the states that are feeling the budget crunch in their corrections departments -- the federal prison system feels it, too.

The Appropriations Committee of the U.S. House of Representatives had a hearing yesterday to discuss the budget needs of the Department of Justice -- which includes the federal Bureau of Prisons (BOP).  The BOP is asking Congress for $6.8 billion for fiscal years 2011 and 2012.  With a population of nearly 210,000 and counting, the BOP is notoriously overcrowded (50% over capacity at high security prisons!) and looking for more prison space.  Buying and operating a federal prison in Thomson, Illinois would cost taxpayers at least $304 million, according to this article at Main Justice.  Representative Frank Wolf (R-Va.) isn't too keen on that idea, though:

The DOJ will have to take general-population prisons and renovate them for maximum security inmates if Congress doesn't allow them to use the Thomson facility, [BOP Director Harley] Lappin said.  Without Thomson, he said, prisons will become more crowded.  
Wolf seemed unimpressed.  
The Republican said the Bureau of Prisons should devote its energy to reducing recidivism through prison work programs and rehabilitation in addition to working on proposals for early releases.
To the BOP's credit, Lappin and his agency are supporting some proposals, such as increasing annual time off for good behavior by 7 days for each inmate who earns it.  This small change would release 4,000 people in the first year and save $41 million, but it's up to Congress to pass a bill that would get it done.  Lappin's testimony to the Committee also supported more good time credit for prisoners who participate in recidivism-reducing job and educational programs.

Of course, the biggest and best way to cut the BOP's prison population -- and save huge on costs -- would be front-end sentencing reforms.  Get rid of mandatory minimums; provide judges with more discretion in more cases through the creation of "safety valves"; make past reforms (like the Fair Sentencing Act) retroactive.

Well, states, take some comfort in this:  you're not the only ones facing tough questions on balancing budgets, cutting corrections costs, and keeping the public safe.

Tuesday, March 15, 2011

Good and Mad Reading

This one's not just for Oregonians and sentencing nerds:  the Oregon Criminal Justice Commission has released an interesting and worthwhile study on Measure 11, its 15 year-old package of mandatory minimum sentences.  The report shows many of the problems with mandatory minimums, summed up in this good article from The Oregonian.

One of the justifications offered for mandatory minimums is uniformity:  everyone who commits a certain crime will get a certain minimum punishment.  The Oregon report blows this justification out of the water, though.  Because the use of mandatory minimums is controlled by prosecutors, they are not applied evenly.  People who deserve the mandatory minimum might not get it.  People who don't deserve it might be forced to serve it.  It all depends on who's prosecuting the case:
This report focuses on the application of mandatory sentencing in Oregon in thousands of cases over more than a decade, and makes clear the predictable sentence is only arrived at in the minority of cases where a prosecutor, not a judge, decided it was appropriate and necessary. This report delves into the factors that increase the likelihood a prosecutor will seek a conviction that calls for a mandatory minimum sentence and examines the broad disparity in sentences for the 70 percent of cases where the prosecutor uses the “leverage” of the mandatory sentence to obtain a plea bargain to a lesser charge.
The report finds that mandatory minimums aren't only applied unevenly from prosecutor to prosecutor, but from county to county in Oregon.  And -- no surprise here -- mandatory minimums are also applied differently to different groups:
Juveniles and females indicted for a M11 [Measure 11] are both less likely to receive a M11 conviction. These differences are statistically significant with juveniles and females both being about 20 percent less likely to be convicted of a M11. M11 conviction rates also differ by ethnicity. Blacks who are indicted for a M11 are about 15 percent less likely to be sentenced to prison than whites, and Hispanics are about 40 percent more likely to be sentenced to prison than whites.
And M11's effect on Oregon's prison population is undeniable:
If Oregon voters had not passed M11, Oregon would require an estimated 2,900 fewer prison beds, about one third of the initial official estimate. Senate Bill 1049 (1997), which allowed guidelines sentences for some M11 offenses, had little or no impact on the prison population. The prison months imposed for indicted offenders changed very little after passage of the law. ...
Analysts also predicted that Oregon would need an additional 9,000 beds in 10 years following the passage of M11. The actual increase in beds was much lower. Part of the reason there were fewer beds needed than predicted was prosecutors used their discretion and more often convicted offenders of non-M11 crimes.
For years, I've been arguing that the biggest cause of unjustified sentencing disparity isn't wild judges or advisory sentencing guidelines, but prosecutors and mandatory minimums.  If sentencing uniformity and certainty of punishment are our goals, mandatory minimums -- at least in Oregon -- aren't getting us closer to them.

There's lots of goodies in there.

-- Stowe

Monday, March 14, 2011

Turning Over a New (Green)Leaf

Pennsylvania State Senator Stewart Greenleaf, a Republican, "doesn't regret his early advocacy of law-and-order, lock-'em-up justice. But he says he has come to understand the cost. Now he's trying a new approach." So wrote Joseph DiStefano in Sunday's Philadelphia Inquirer. DiStefano's piece featured Sen. Greenleaf's efforts to instill a sense of proportion to the state's criminal sentencing laws.

Greenleaf was first elected to Pennsylvania's legislature in 1978. Not long after, he began introducing bills to impose mandatory minimums for some crimes and give law enforcement more tools to go after criminals. More than 30 years later, he sees the fruit of his labor - including what he deems unforeseen consequences - and thinks some of it has rotted.

From the article:

"The purpose of those bills was to address the violent criminals," and that worked, Greenleaf says. "But we also got in our net many little fish. Meaning the nonviolent offenders."

The result, says Greenleaf: "We went from seven state prisons in 1980 to where we now have 27, and we're building one every year. Our prison population went from around 8,000 inmates to over 51,000."

Each new prison costs $200 million to build, $50 million a year to run. Each inmate costs $35,000 a year, including overhead. That's more than a year's tuition at Penn State or Temple, and 10 times what it costs to keep a man or woman on probation. And that's not counting vast expansion projects at existing facilities such as Graterford Prison.

"I'd spend all that money and more if I thought it was helping public safety. But it's not," Greenleaf said.
SentenceSpeak wishes Senator Greenleaf nothing but success. Stay tuned for more on his efforts.

Massachusetts Monday

We're starting a recurring column here at SentenceSpeak -- it's called "Massachusetts Monday" and will feature an update on our Massachusetts reform efforts every couple of weeks.  Our Massachusetts state sentencing reform project, spearheaded by Barb Dougan, has been working for (and winning) reforms for several years now, and as the current legislative session heats up, we're hoping for more good news to share here.

In this article over at the website of the Massachusetts chapter of the National Lawyers Guild, Barb explains the devastating impact of Massachusetts' mandatory minimum drug sentencing laws on women:
Some women get flowers and chocolates from their partners. Others get 10 years in a prison cell. ...
With mandatory minimums, the sentence is typically based on the type and quantity of the drug in question, not the person’s role in the offense, prior criminal record or need for treatment. Thus, those at the bottom of the drug trade are subject to the same harsh punishments intended for major traffickers and kingpins. And the drug trade is no different from so many other commercial ventures — women fill the low level positions. But they can pay the same big price, with sentences up to 10 and 15 years. ...
By 2009, nearly one-third of the female prisoners in Massachusetts were serving drug-related sentences. Over half of them were serving mandatory minimum sentences, compared to only 12 percent in 2003. It is no surprise that drug sentencing laws contribute to longer sentences for female offenders. This, in turn, creates problems for the next generation. The majority of the state’s incarcerated women have children under 18. Children are five times more likely to end up in foster care when the mother is in prison, compared to the father. Children with either parent in prison are much more likely to become involved with the criminal justice system.
Mandatory minimums are a multi-generational plague.  A good way to start reducing the fall-out from that plague is to create parole eligibility for people serving mandatory minimums -- including all those women missing their kids.

Learn more about FAMM's Massachusetts campaign by clicking here.

Friday, March 11, 2011

No Walls, No Bars -- Would it Work?

I love posting articles about how other countries punish people.  Even if the U.S. system comes out looking like it's run by a bunch of Neanderthals.

This very worthwhile article from The Wire describes a prison in Norway that uses no walls, barbed wire, locks, or bars to keep its inmates in check.  The concept also forces prisoners to take care of themselves and not become institutionalized:  
This is supposed to be a prison. But Raymond Olsen doesn’t want to be here in the world’s most liberal prison, on this Norwegian island in Oslofjord, an island so small that it takes less than an hour to walk around its perimeter. Freedom beckons on the opposite shore, where the lights glitter at night like rhinestones. The 2-mile trip by boat to the mainland takes less than 10 minutes.
The warden, Arne Nilsen, wants the men here to live as if they were living in a village, to grow potatoes and compost their garbage, and he wants the guards and the prisoners to respect each other. He doesn’t want bars on the windows, or walls or locked doors.
The inmates on Bastoy have been convicted of crimes such as murder, robbery, drug dealing, fraud, violent crime, and petty theft. Some 115 prisoners live on Bastoy, and those who wish to stay are required to work and integrate into the community. The idea is that the prisoners should have an incentive to stay, and that they are still there when the count is taken—four times a day. ...
This paradise has been around for 20 years—and has a warden who loves statistics. Only 16 percent of the prisoners in this island jail become repeat offenders in the first two years after leaving Bastoy, as compared with 20 percent for Norway as a whole. The warden also feels vindicated because there has never been a murder or a suicide on the island—and because no one left Bastoy last winter even though the sea ice was frozen solid.

Olsen, the new inmate, is expected to work. He will earn 50 kroner a day. He is expected to get up every morning, cook his own food, and do his own laundry. He doesn’t know how he will manage.
Could a system like this work in the U.S.?  The most famous island prison in America is Alcatraz, which was considered anything but humane and is now a museum.

The truth is that a lot of low and minimum security prisons in the U.S. don't have barbed wire or walls and even let prisoners work outside the prison grounds.  That's not to say there aren't a million other controls on prisoners' daily lives, which can leave them feeling lost at sea when they return to society and have complete freedom.

What do you think of Norway's island prison concept?

Thursday, March 10, 2011

Women Returning From Prison

That's the topic of this excellent segment from the Kojo Nnamdi show, which aired yesterday on NPR.

We don't do much work on reentry here at FAMM, but that doesn't mean we don't think it's important.  It's not just ex-offenders who should worry about what happens when they return home -- the community should be interested in and invested in their success, too.  Between 40 and 60% of returning offenders will commit another offense, and making reentry easier is all about making those numbers drop.

What many people forget, though, is that reentry isn't an issue if a person never goes to prison.  If we really believe that prisons should be used for the worst of the worst and that prisons are likely to make people worse, not better, we should be hesitant to use them.  Many people can be kept in the community, supervised, and given the help they need to become sober, safe, contributing citizens -- and it costs less than prison does.

Sometimes, I think the real problem with sentencing reform in this country is that we've forgotten what prison is for:  keeping us safe from scary, violent, dangerous people who are highly likely to reoffend.  Instead, we use too much of our precious, expensive prison space to lock up people we're simply mad at or frustrated by.  First, we handicap the wrong people with years in prison; then, we create obstacles to their reentry.  Is it any wonder that so many reoffend?

-- Stowe

Wednesday, March 9, 2011

Is this a crime? If so, what is the right sentence?

This riveting article from The New York Times ably shows the complexity of child pornography crimes and how their sentences should be anything but one-size-fits-all:

[Evan] Emory, 21, an aspiring singer and songwriter, became a household name here [in Muskegon, MI] last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube. ...

Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.
Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression. ...
Mr. Emory said the idea for the video arose out of planning for a Valentine’s Day variety show at a downtown club. He wrote the explicit song when he was 16, he said, and had played it in bars before. But for the variety show he wanted to pair it with “an inappropriate audience” as a comedy segment. He thought of using elderly people, he said, but decided instead on young children.
He has admitted that he deceived the teachers at Beechnau Elementary School, in the small farming community of Ravenna, about his intentions. Mr. Emory included a disclaimer with the video, saying that no children had actually been exposed to the sexual lyrics. He said that his friends — fans of Daniel Tosh and other edgy comedians on the Internet and cable television — all thought the video was hilarious when they saw it at the local nightclub or on YouTube. (It has since been removed.)
No children were hurt or even present for the song, yet they are visible and identifiable in the video. The prosecutor who charged Mr. Emory says that Michigan state law "covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity."  Based on the article's description and that legal standard, you tell us: is this child porn, or free expression?  

And if it is child porn, what is a fair sentence?  
Mr. Tague [the prosecutor] defends his original charge but says he wants to resolve the case in a way “that will send a message that this is wrong but will not ruin the young man’s life.”
One path under discussion, Mr. Nolan [Mr. Emory's lawyer] said, would be for Mr. Emory to plead to a lesser charge, receiving some jail time, probation and community service. He would not have to register as a sex offender. But any deal would need approval from a judge. A hearing is set for next Monday, Mr. Nolan said.
Judicial discretion was created for unique situations like this.  Unfortunately, with the increasing use of mandatory minimums for child pornography, many judges -- and especially federal court judges -- will not get to decide what is fair and what would "ruin [a] young man's life."

Add Kentucky to the List

of states cutting back on too-tough sentences and overcrowded prisons.

This article from the Evansville Courier & Press has the details of the bipartisan effort:

The bill is touted as a far-reaching way to lower prison headcounts, reduce the frequency of repeat drug offenses and improve public safety. It seeks to make a big dent in Kentucky’s illegal drug scourge.
It updates Kentucky’s drug laws by reducing prison time for low-risk, nonviolent drug criminals caught with small amounts of drugs. More of them would get treatment and alternative sentencing instead of prison time.
Possible savings to Kentuckians:  $147 million over 10 years.  Not bad.

Taxpayers, you tell us:  what would you rather spend $147 million on -- prisons, schools, roads, health care?

Tuesday, March 8, 2011

Not Your Father's Arkansas

The American South - and Arkansas, in particular - sometimes gets a double helping of grief for not always's the word? Progressive? Forward-looking? Resistant to change? Yes, there was that issue of President Eisenhower having to send federal troops to escort African-Americans into newly desegregated schools. And, sure, the state's constitution still has a provision that reads: "No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court."

But hold on just a minute. Is that Arkansas passing a bill to improve its prison system by, among other things, making low-level offenders eligible for non-prison alternatives? You betcha. Read the full story for yourself and let this quote from David Eberhard, director of the state's Department of Community Corrections simmer in your frontal lobe:

“While our officers have law enforcement functions, unless they are engaging in activities that are directed at helping a person to change the way they think and their behavior, they are not fulfilling the duties of the probation or a parole officer.”
Bully for Arkansas!

Yet Another Story on the Prison Reform Craze

This time, it's the Wall Street Journal with a story about states trying to find savings in their corrections budgets without compromising public safety.

Friday, March 4, 2011

What Canadians Could Buy ... Instead of More Prisons

For reasons that defy logic and fiscal common sense, Canada seems hell-bent on imitating the U.S.'s tough-on-crime sentencing laws.

Why? Because Canadians are apparently disgruntled with their justice system and want tougher sentences. So, chalk this up to another classic example of lawmakers trying to win votes and popularity -- no matter how fiscally disastrous the policy ends up being.

The Globe and Mail's editorial board offers some fascinating poll results and this editorial to explain how Canadians want tough justice -- but may not be willing to pay for it:

Canadians don’t trust the courts to get it right on crime. Many would like a tougher approach. But they also don’t see crime or justice as a spending priority. Perhaps this explains the Conservative government’s silence on the costs of their law-and-order agenda.
Since 1994, the Focus Canada poll done by Environics has measured Canadian attitudes toward government spending. In 2010, justice was seen as the second last of 21 priorities, a sharp drop from 15th in 2008. Only 24 per cent said more money should be spent on the justice system. That was the lowest figure recorded since 1994, when just 20 per cent wanted more spent. Getting tough is one thing, paying for it another. ...
The federal corrections budget alone is set to rise by $861-million, or 36 per cent, by 2012-13 over 2009-10. The provincial costs will probably rise by at least that much, because of federal sentencing changes.
And crime isn't even rising in Canada. Sigh. We see this all the time in the U.S. -- let's whip up some fear, hike up some sentences, win votes for being "tough on crime," and then foot the bill to the taxpayers. Never mind if they aren't actually safer, or if they're actually getting safer without those tough laws. Taxpayers in the U.S. have been dumb enough to fall for this and pay for it, to boot. For their own sakes, I hope Canadians are smarter.

So does former prosecutor and (Republican) Congressman Asa Hutchinson, who calls mandatory minimums a mistake and tells the Canadians not to adopt them in this article.

This editorial explains what Canadians could buy with the money they'll spend on corrections if they adopt mandatory minimums. Attention U.S. lawmakers: consider this idea!
Assuming Canada had extra billions in a time of large deficits, consider the birth bond – a government investment to be made each time a child is born. The investment would be held until the child turns, say, 18, and then made available for postsecondary education or an apprenticeship program. Canada has 370,000 births a year. How much could it afford to put into an ambitious investment for each newborn, instead of into jail expansion? ...
Canada could seed an education account for each newborn with $13,783. Outlandish? Maybe, but it makes more sense than prison expansion, if the government is intent on spending an extra $5-billion. Canada wouldn’t need a birth bond, anyway; net tuition paid by all students is $3.5-billion a year. Instead of Truth in Sentencing, the country could afford Free in University, with change left over.
It's good stuff. Read it all.

-- Stowe

A Story that Should Change Laws

Dear reader, if you are like me, you are a little bit skeptical when someone tells you about some horribly unjust prison sentence. Sure, you think, that sounds ridiculous but do I really know all the facts? You think there must be more to it than what you've heard because the government wouldn't just send someone away for decades for such a flimsy reason.

It is with this natural skepticism that I approached the story of Stephanie Nodd. Stephanie's story was profiled long ago by FAMM, but I somehow missed it. That is, until the other day when a colleague found the video below. It is an interview that Stephane did with a local NBC-TV station a few years back when she was given a five-day furlough to attend her mother's funeral. After watching the video, I re-read Stephanie's profile and found some court documents about her case. Everything I have seen and read so far have solidified for me the belief that this is the most unjust sentence I have ever learned of.

Unless a miracle happens, Stephanie Nodd is going to serve 26.5 years in prison for a one-month career selling crack for a new boyfriend. As of today, Stephanie has already served 21 years in prison.

What in the world is our country doing sending a first-time, non-violent offender - a 20-year-old young woman, no less - to prison for 30 years?  (Her sentence was 30 years but should be reduced to roughly 26.5 for good behavior).

Her story is a national disgrace. Watch this interview and then share it with everyone you know - friends, neighbors, colleagues. Send it to your member of Congress and tell him you don't feel any safer as result of this woman sitting in jail for another 6 years.

- Ingersoll

P.S. I should add that I do not understand how our president - who courageously admitted to using marijuana and cocaine in his youth - does not use his clemency power to alleviate the harshness of a sentence like this.

Thursday, March 3, 2011

Are Prisons Making the U.S. Less Competitive?

Yes, says this excellent blog piece by Tim Ferguson of Forbes:

One reason America as a whole–as opposed to its brightest lights– is beset in international competition is that the country misspends. It infamously has done so on housing assets, probably does on motor vehicles and arguably is feeding a bubble in college expense. But through government it also is plowing too much into the low end of the human experience: prisons. ...
Citing huge prison costs ($74 billion in fiscal year 2007) and populations (2.3 million, the highest in the world), Ferguson asks whether it's worth it:
Compounding the political problem is the easy mental association of an era of “get tough” policies with relatively benign crime statistics in much of the U.S. Is it not the case that putting bad actors away has left the streets safer for decent citizens? The answer in many cases blessedly is yes (at least until the hardened predators are released). But in how many? And at what cost: of injustice in the case of those disproportionately punished, and of misplaced resources–and fiscal wreckage–from the total confinements?
Everybody knows that confronting the public-policy mistakes that have put the U.S.–and many other developed economies–in our current fix is going to mean a fight. Add prisons to that agenda.
Excellent questions.  Sure, prison keeps offenders off the streets, but virtually all of them will return home eventually.  Many of these -- too many -- are low-level, nonviolent offenders who don't need the harshest punishment (short of death) that we have available.  Sending the wrong people to prison is like paying for full coverage car insurance on an old, banged up beater.  It's excessive, probably unnecessary, and a waste of money.

Add Forbes to the list of people who say we need to be smarter on crime, not tougher. 

Wednesday, March 2, 2011

End the Pepper Sentencing Saga

The case of Jason Pepper has been nothing less than a saga.  It's not over yet, but today it got (hopefully) a lot closer to completion.

The case is Pepper v. United States, No. 09-6822, and FAMM contributed an amicus brief to the debate.  Here it is in a nutshell:  Pepper committed a drug offense and got sentenced for it.  He appealed, won, and got sent back to the trial court to be resentenced.  (This actually happened twice, which is why it's a saga.)  In the time between his first sentencing and his two resentencings, though, he turned his life around -- got clean, got educated, got a job, got married.  The issue for the Court:  at the resentencing hearings, could the trial court judge consider Pepper's amazing rehabilitation and give him a sentence below the guidelines range because of it?

The Supreme Court said a resounding "yes" today.  Quoting from FAMM's summary of the case:

The opinion was a robust affirmation of judicial discretion and the advisory nature of the federal sentencing guidelines. It rested, in part, on themes that were also advanced in FAMM’s amicus brief in Pepper, including the proposition that federal law requires that a defendant must be considered as he stands before the court. FAMM's brief noted, "A defendant must be sentenced based on who he is, not just who he was. Those principles are part of the fabric of federal sentencing law. A sentence imposed by a court that has blinded itself to a defendant’s rehabilitation is all but guaranteed to be greater than necessary to achieve its purposes—and is therefore unjust and unlawful."
The last sentence Pepper got before his case went up to the Supreme Court was 65 months.  The first sentence he got (and has already fully served) is the one based on his post-sentencing rehabilitation:  24 months.  And he's served an extra 12 months while appealing his case to the Supreme Court.  Now, his case will go back to the trial court for his third resentencing -- this time with clear guidance that the trial court can and should consider Pepper's rehabilitation.

We certainly hope that the trial judge says, "Enough is enough."  Pepper is clearly a person who does not need any more prison time.  The 24 months he served enabled Pepper to get drug treatment and inspired him to turn his life around.  Sometimes, it's a shorter sentence that turns someone into a law-abiding citizen.  If that's the case, what's the point of giving them more time, except to suck taxpayers dry and force more warm bodies into our already overcrowded prison system?

Putting Pepper back in prison won't help him or anybody else, won't make us safer, won't deter any crime (though sharing his story with the public and young people might!), won't provide further rehabilitation, and would be excessive and unjust.  Enough is enough.  This is one sentencing saga that should end here and now.

There's some great language in the full opinion, so enjoy.

Tuesday, March 1, 2011

Supreme Court Justices Say the Darndest Things

Making crack might not be rocket science, but it is a science, and this hilarious column by Dana Milbank in today's Washington Post shows the Supreme Court justices doing their best on a subject they never learned in law school:  chemistry.

The case is DePierre v. United States, and it was argued yesterday in front of the high Court.  The facts of the case are galling but, sadly, a common story we hear here at FAMM.  Frantz DePierre sold drugs to a confidential informant (CI) working with the government.  The government pressed the CI to ask DePierre specifically for crack, not powder cocaine, because crack carries the tougher sentence (and a government agent admitted that getting the harsher sentence was the primary motivation).  DePierre's arguments in the lower court included claims that he had been wrongfully induced and entrapped to sell crack and that the drug he actually sold wasn't "cocaine base."  

The issue is whether the term "cocaine base" includes every possible cocaine form that is a base, or just your good ole-fashioned crack cocaine.  The difference does actually matter at sentencing, of course, because "cocaine base" will win you a harsher sentence than you'd get for powder cocaine, and it can raise the maximum sentences a person is subject to, as well.  But the "cocaine base" question hinges on some pretty technical stuff:
The robed ones have deliberated over cocaine at least half a dozen times in recent years, taking up the drug in some form in each of the past four years. On Monday, the justices took another hit - and this one was particularly mind-blowing. ... [The] argument hinged on chemical properties of cocaine derivatives - a technical discussion for which law school did not quite prepare the justices.
"Could you grind it up so that it's not rock-like anymore, so it's like a powder, and smoke it after it's in that form?" inquired Justice Samuel Alito.
"Can you get cocaine into a rock form without using a base?" Justice Sonia Sotomayor wanted to know.
Justice Anthony Kennedy had a question about the age and sun exposure of the coca leaf. Justice Elena Kagan invoked Richard Pryor's freebasing accident. Alito, who showed off by reciting the chemical formula for cocaine - C17H21NO4 - sought information on how many Americans smoke coca paste.
Justice Stephen Breyer had even less refined cocaine knowledge. "People sniff it often, I guess, if it's a salt, and that's bad," he said. "And then there's a kind that's worse. That's freebase or crack." ...
Symptoms of a cocaine high include talkativeness, hyperactivity and a feeling of superiority, often followed by lethargy during the crash. By coincidence, these were the same traits on display in the chamber. Talkativeness? Sotomayor. Hyperactivity? Breyer. Lethargy? Clarence Thomas. Feeling of superiority? Antonin Scalia.
"You're urging upon us a definition that neither is the definition of crack nor is the chemical definition of cocaine base," Scalia snorted. "It's neither fish nor fowl."
Pincus provided a culinary response, saying the "question that we're debating is whether the use of baking soda is essential."
"It's essential to crack," Scalia informed counsel. But even the all-knowing Scalia became muddled as he inhaled deeply of the drug discussion.
We don't blame the justices for getting lost in the fog -- if Congress had taken more time and done more research when it passed this law back in the late 1980s, the Court might have a clearer definition of "cocaine base" to work with, and this case may never have come up.  That's what happens when Congress creates criminal laws out of fear rather than sound science:  clarity becomes a casualty, along with justice.