Aging Costs -- And Consequences

This article in The Auburn Citizen provides a good look at New York State's experience with an aging prison population.

It's supported by both common sense and evidence:  when prisoners get longer-than-necessary sentences (like mandatory minimums), they spend more time in prison, get older, and often get sick -- and even if they are no longer dangerous, they remain in prison, costing taxpayers a fortune:

An older inmate population is the natural result of the strict sentencing that prevailed across the country in the 1980s and 1990s, researchers and advocates say....

One example in New York was the Rockefeller drug laws, which from 1973 until their repeal in 2009 mandated sentences of 15 years to life for possessing more than four ounces of “narcotic drugs” such as heroin and cocaine.

As a result of such “get tough” sentencing guidelines, the state prison population grew dramatically from about 10,000 in 1973 to over 70,000 in 1992.

Many of the inmates who received life sentences as young men in the 1970s are reaching their 60s this decade.

In New York, there are 847 inmates age 65 and older. They make up about 1.5 percent of the overall prison population, a proportion that has been rising steadily for several years, state Department of Corrections and Community Services spokesman Peter Cutler said. As recently as 1992, it had been just 0.3 percent.

Nationally, the 55-and-older segment of the prison population grew by 77 percent from 1999 to 2007, according to a study by the Pew Center on the States.

The change is important because elderly inmates like Bernard Hatch are much more costly to house, mostly because of health care.

A 2010 report by the Vera Institute for Justice cited studies showing that elderly inmates make five times as many trips to health facilities and cost three times as much to incarcerate as their younger counterparts.

Elderly inmates average three chronic conditions and 20 percent suffer from mental illness, according to the report.

In New York, 71 percent of the 306 inmates housed in regional medical units at the end of 2010 were over age 50 and 34 percent were over age 65, Cutler said.

The demographic change and the attendant cost spike has sent some states scrambling for ways to handle older inmates.

Releasing elderly offenders is one humane and fiscally smart solution -- but in New York as elsewhere, it sadly doesn't happen much:

New York is also among the 15 states with some sort of geriatric release process. Such programs are usually based on inmates’ terminal illnesses, and advocates point out that recidivism rates plummet as offenders age.

One study showed a one-year recidivism rate of 3.2 percent for released inmates age 55 and older compared to 45 percent for people between 18 and 29 years old.

The compassionate release program in New York, however, results in very few releases: just eight in 2010 out of 140 applicants, Cutler said.

“All the studies show that recidivism is virtually non-existent once a person gets over 45,” said Soffiyah Elijah, director of the Correctional Association, a non-profit prison advocacy group. “I think it would be smart for us to take another look at how we’re spending taxpayers’ dollars to keep those individuals incarcerated.”

Flogging: The New Alternative to Prison?

That's the provocative (and hair-raising) question posed by Peter Moskos, a professor at New York's John Jay College of Criminal Justice, in this stimulating and surely controversial article from the Chronicle of Higher Education.

Time to insert disclaimers:  no, FAMM does not support flogging as an alternative to incarceration.  Yes, we are well aware that flogging was a horrid and ritualistic part of slavery -- and that a hugely disproportionate number of people arrested and imprisoned are African Americans.  (For the record, Moskos' article fails to remember these gruesome facts.)  Please don't accuse us of being un-PC (or something worse).

So why on earth am I posting this?  Well, because even if you think Moskos' question (which he writes about in an upcoming book called In Defense of Flogging) is ridiculous, it is a darn fascinating and surprisingly thought-provoking article about the failure of mass incarceration.

Moskos's beef isn't that prison isn't tough enough punishment, but that it is ineffective, often cruel, and its use has spiraled out of control:

The opening gambit of [my] book is surprisingly simple: If you were sentenced to five years in prison but had the option of receiving lashes instead, what would you choose? You would probably pick flogging. Wouldn't we all?

I propose we give convicts the choice of the lash at the rate of two lashes per year of incarceration. One cannot reasonably argue that merely offering this choice is somehow cruel, especially when the status quo of incarceration remains an option. Prison means losing a part of your life and everything you care for. Compared with this, flogging is just a few very painful strokes on the backside. And it's over in a few minutes. Often, and often very quickly, those who said flogging is too cruel to even consider suddenly say that flogging isn't cruel enough. Personally, I believe that literally ripping skin from the human body is cruel. Even Singapore limits the lash to 24 strokes out of concern for the criminal's survival. Now, flogging may be too harsh, or it may be too soft, but it really can't be both.

My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. In 1970, before the war on drugs and a plethora of get-tough laws increased sentence lengths and the number of nonviolent offenders in prison, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn't happen.

From 1970 to 1990, crime rose while we locked up a million more people. Since then we've locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? Were they the only ones who were "real criminals"? Did we simply get it wrong with the first 1.3 million we locked up? If so, should we let them out?

America now has more prisoners, 2.3 million, than any other country in the world. ... If 2.3-million prisoners doesn't sound like a lot, let me put this number in perspective. It's more than the total number of American military personnel—Army, Navy, Air Force, Marines, Coast Guard, Reserves, and National Guard. Even the army of correctional officers needed to guard 2.3-million prisoners outnumbers the U.S. Marines. If we condensed our nationwide penal system into a single city, it would be the fourth-largest city in America, with the population of Baltimore, Boston, and San Francisco combined.

Moskos goes on to compare incarceration to banishment and exile (another old punishment that is out of style, not to mention cruel and unusual).  Moskos confesses that he finds flogging barbaric, but when compared to prison, is it really?  Here's how it ends:

If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that's my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?

-- Stowe

Is Justice's Response Just?

On November 17, 2010, Senators Patrick Leahy (D-NY) and Richard Durbin (D-Ill.) wrote a letter to Eric Holder, the Attorney General and leader of the Justice Department.  The letter described how the Senators wanted the Justice Department to apply the freshly-minted Fair Sentencing Act of 2010 (a/k/a "the new crack law") to so-called "pipeline" cases.  A pipeline case is the case of a person who committed a crack offense before August 3, 2010 (the date the FSA became law), but hasn't been sentenced yet.

The problem? The FSA is silent about retroactivity. The law doesn't say whether it applies to pipeline cases -- or to anyone sentenced before August 3, 2010. Senators Leahy and Durbin's letter cleared this up with Attorney General Holder:  yes, they said, the Justice Department should apply the FSA's shorter crack sentences to pipeline cases.

Yesterday, the Justice Department responded to the Senators with this letter.  The long and short of it:  the Justice Department doesn't think the new, fairer crack punishments should be applied to pipeline cases -- or to anybody sentenced before the FSA became law.  In other words:  no retroactivity.

The letter is disappointing, because President Obama's Justice Department fought long and hard to fix the disparity between crack and powder cocaine sentences. It was even a campaign promise! Prosecutors have limitless discretion -- why couldn't the Justice Department simply order its own rank and file to use the new crack sentences instead of the old, unfair ones? From the letter, it appears to be a genuine belief that the new law simply doesn't allow it.

Whether or not you agree with the Justice Department's letter, it clearly shows that there is work left for Congress and the U.S. Sentencing Commission to finish. Congress should pass a new law making the FSA apply retroactively to all people serving crack sentences under the old law. The U.S. Sentencing Commission should make its recent proposed crack guideline changes retroactive.


Unfair is unfair, and unjust is unjust. Justice shouldn't depend on when a person committed his crime.

Crack Reforms Cover Only So Many

FAMM was proud to see Congress pass the Fair Sentencing Act of 2010 last year.  FAMM worked for over two decades to eliminate the sentencing disparity between crack and powder cocaine. While the "new crack law," as so many of our members call it, didn't get rid of the disparity between crack and powder cocaine completely, it did reduce the amount of crack needed to trigger the 5 and 10-year mandatory minimums.

But the law wasn't retroactive and doesn't benefit federal crack offenders who committed their crimes before the day the reform became law:  August 3, 2010. This lack of retroactivity persists, despite the fact that Congress found that the old law was too harsh, unjust, and created racial disparities.

And, according to this New York Times article, the new law's lack of coverage for those already in prison has outraged many federal judges:

In [a] recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right. It is one thing, he wrote, to have to impose an unjust sentence. But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”

About 30 other federal trial judges have said more or less the same thing. ...

The only appeals court to directly address the question so far, in Chicago, said only Congress could apply the new standards to old cases.

“We have sympathy,” Judge Terence T. Evans wrote for a unanimous three-judge panel, “for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair.”

An editorial in today's Times argues that prosecutors -- who have almost limitless discretion -- could do the right thing by charging people differently or letting states pick up the cases of crack offenders who won't get the benefit of the new law just because of the date they committed their crime.

While the Justice Department should use its discretion more justly in charging such cases, we must not let Congress or the U.S. Sentencing Commission off the hook either. When a corporation discovers a flawed product, it stops producing it and orders a recall. Congress reduced crack penalties because they were excessive, but only going forward. Now the U.S. Sentencing Commission and Congress must do the equivalent of a “recall” and make the lower sentences retroactive so that defendants and prisoners left behind can benefit.

Where in the world are we?

This new and very interesting report from Justice Police Institute asks that question in terms of prison policy.  The answer: the U.S. is #1.  We have the world's highest incarceration rate and more people in prison than any other country in the world.  Of all the prisoners in the world, one in four of them is in the U.S.

It's not much to be proud of.

On top of that, the report finds, we're not getting much bang for our prison bucks.  Other countries have crime rates that are the same or lower than ours, but have prison populations that are a fraction of the size.  The findings on mandatory minimums are unsurprising but still no cause for celebration:

While other comparison countries have mandatory minimum sentences, they are usually focused on firearms and specific, violent offenses, especially sex offenses. The United States and the United Kingdom have mandatory minimum sentences for drug offenses. In the case of the United Kingdom, the mandatory sentence is for trafficking, but in the United States a mandatory sentence can be for possession of illicit substances, as well.

Here at FAMM, we're opposed to all mandatory minimums, both foreign and domestic.  But it might not hurt to look overseas for inspiration when it comes to sentencing reform -- especially at a time when both state and federal governments are under the gun in America to cut unwise spending wherever possible. (And  mandatory minimums qualify as unwise spending.)

Alas, many U.S. institutions are loath to look overseas for inspiration (or help). And that's a pity, because the best prison and sentencing policies clearly haven't been "made in America."

-- Stowe

Killing that Last Sacred Cow

Did you know that FAMM has a YouTube channel?  It's http://www.youtube.com/user/FAMMFoundation, and today we've updated it with video from our briefing on Capitol Hill on April 14.  It was called "The Last Sacred Cow:  How Congress Can Cut the Criminal Justice Budget Without Compromising Public Safety."  Featured speakers included conservatives Grover Norquist of Americans for Tax Reform, Tim Lynch of Cato, and former DEA director Asa Hutchinson.

This helpful factsheet shows specific ways Congress can trim federal spending on prisons without endangering the public.  In today's ongoing federal budget battle, this should be required reading for lawmakers of all parties.

Watch Julie's intro to the panel below, and visit our YouTube page to see more.

At Your News Stand

This month's issue of Ebony features FAMM members Karen Garrison and her twin sons, Lawrence and Lamont.  Here's how it begins, but you have to buy the issue to see how it ends:

Two months after watching her twin sons, Lamont and Lawrence, graduate from Howard University, Karen Garrison was in a Washington, D.C., court, watching as they were convicted for crack cocaine possession.

The year was 1998, and the sentences were 19½ years for Lamont and 15½ years for Lawrence. While the conviction time was in line with Washington’s mandatory minimum law, Garrison says that, considering it was their first offense, the sentences were completely out of line with logic.

That’s when she decided to take action. “I thought getting involved was for lawyers, not for an average person like me,” says Garrison, a former cosmetologist who quit her job to work full-time to get her sons’ sentences reduced. “It took me seven or eight years to realize that no one cared about the sentences my sons received but me … I was all they had.”

Getting involved is absolutely, without question for "average" people.  Karen and her sons are just three of many inspiring examples of FAMM members and their ongoing quest for justice.  They're the reason we do what we do.  People in prison are real, normal people -- people just like your fathers, mothers, brothers, sisters, coworkers, friends, and neighbors.  Their lives have value and meaning, and they deserve punishments that are humane, fair, and give them a second chance.

When Does Congress Create Mandatory Minimums? Think Elections

That's what this new, helpful, and fascinating chart, compiled by FAMM, shows.

We looked at all the federal mandatory minimum sentencing laws created between 1987 and 2010 and asked ourselves some simple questions:

• When did Congress create this mandatory sentence?
• When did Congress increase it?
• When did Congress expand or rewrite the law so that more people were subjected to the mandatory sentence?

The answer is:  election years, election years, election years.  

The conclusions we drew from our data compilation:

(1)   Congress is significantly more likely to create or expand a mandatory minimum sentence in an election year than in a non-election year. Since 1987, there has been only one election year (2010) in which Congress did not create or expand any mandatory minimum sentences.

(2) Republican Congresses have created or expanded almost twice as many mandatory minimum sentences (131) as Democratic Congresses (68) since 1987.

(3) Including all presidents, more mandatory minimums have been created or expanded under Republican presidents (111) than Democratic ones (88) since 1987. However, President William J. Clinton presided over the creation or expansion of more mandatory minimums (87) than President George W. Bush (77).

(4) The creation and expansion of mandatory minimums corresponds to periods in which certain crimes received notable or extensive media attention and created fear or panic among Congress and the general public. For example, mandatory minimum drug sentences were created in the late 1980s and almost solely justified by now-debunked fears surrounding abuse of crack cocaine. Many mandatory minimums for child pornography and sex offenses were created in 2003 (when the abductions, rapes, and murders of several young female victims dominated headlines for months) and 2006 (the 25th anniversary of the abduction and death of Adam Walsh, who was the inspiration for the Adam Walsh Child Protection and Safety Act, a law that was vigorously lobbied for by the victim’s father and host of the TV show America’s Most Wanted and by victims’ rights groups nationwide).

This little exercise confirmed most of our beliefs about mandatory minimums:  

• Mandatory minimums are created out of fear and politics instead of reason or justice, 
• They act as one-way ratchets, driving sentences ever and ever upwards, and 
• Once created, it is virtually impossible to get rid of them.

The Next Hot Drug: Cigarettes?

Ahhh, yet another example of the unforeseeable ripple effects of the Great Recession:  the next smokin' hot drug targeted in the War on Drugs may be (drumroll) .... cigarettes.

That's according to this article in USA Today. How does a legal, widely available, and enormously popular drug like nicotine get illegally "trafficked"? Tea Party members, hang onto your kettles, because it has to do with taxes:

A recent wave of state tobacco tax increases, designed to pump revenue into cash-strapped local governments, is inspiring an increasingly dangerous cigarette smuggling industry where big profits lure violent criminal gangs and drug traffickers into the booming illegal market, according to law enforcement officials and court records.

Larry Penninger, acting director of the tobacco diversion unit of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), says investigations and prosecutions involving tobacco trafficking have been increasing as smugglers flood high-tax states with cigarettes from low-tax states. ...

Larry Penninger, acting director of the tobacco diversion unit of theBureau of Alcohol, Tobacco, Firearms and Explosives (ATF), says investigations and prosecutions involving tobacco trafficking have been increasing as smugglers flood high-tax states with cigarettes from low-tax states.

According to the Centers for Disease Control and Prevention, tobacco is the leading preventable cause of death and causes one in every five deaths in the United States.

Congress loves to slap mandatory minimum sentences on whatever the new/popular/scary/headline-grabbing drug of the day is.

You tell us:  what are the odds that Congress will slap mandatory minimums on a legal drug that many (including our own President) currently use or have used in the past?

One Year Anniversary of Michelle Taylor Life Sentence

A year ago today, 34-year-old Michelle Taylor of Nevada received a life sentence for forcing a boy to touch her breast. Her conduct, while admittedly reprehensible, will cost her the rest of her life in prison (unless she prevails on appeal) and will cost Nevada's taxpayers $1 million to keep her there. This is not an anniversary worth celebrating, but it's an outrage worth remembering.

We have blogged about this case a few times, including here the first time and then here when John Stossel criticized the ridiculous sentence. FAMM went a step further and filed an amicus brief at the Nevada Supreme Court that challenges the constitutionality of Taylor's sentence. We expect the court to hear her appeal later this year. Of course we will keep you posted.

Rethinking Mandatory Minimums in PA

Good things may be brewing on mandatory minimum reform in the Keystone State.  Pennsylvania state Senator Stewart J. Greenleaf, a Republican and the leader of the Senate's Judiciary Committee, is all but calling mandatory minimums a disaster for the state:

The chairman of the state Senate Judiciary Committee admitted Wednesday that the General Assembly made some mistakes when it adopted laws requiring mandatory sentences for certain crimes.

The law was intended to get tough on crime, said Sen. Stewart J. Greenleaf, a Montgomery County Republican who represents parts of Montgomery and Bucks counties.

Instead, it sends nonviolent offenders to prison for lengthy terms, overcrowds prisons and drives up prison costs, he said....

In the last 30 years, the state prison population rose to 52,000 from 8,000 when the overall population increased by 3 percent, Greenleaf said. Costs increased to about $1.8 billion from $94 million.

At the same time, crime went up, he said.

Ouch.  Even the wisdom of the state's law against drug crimes in "school zones" is being debated:

Berks County Judge Linda K.M. Ludgate, administrative head of the criminal courts, said one mandatory sentence that causes problems here is the one for anyone who delivers drugs in a school zone.

The entire city is a school zone, she said.

President Judge Jeffrey L. Schmehl said the law is based on a plot of ground rather than the size of the drug sale or whether the sale had anything to do with the school.

Yesterday, FAMM had a briefing on Capitol Hill called "The Last Sacred Cow."  It was about how Republicans should consider cuts to our escalating criminal justice spending -- particularly what we spend to lock up nonviolent, low-level, elderly, ill, or otherwise non-threatening people.  There should be no sacred cows when it comes to something as expensive as prison space -- or as important as justice.  School zone laws sometimes seem to fall into that "sacred cow" category.  It's nice to see more and more states like PA questioning whether they're really so sacred after all.

Conservatives Come to the Hill with FAMM

Today at 3 p.m. EST, FAMM will be hosting a briefing on Capitol Hill, in Washington, DC.  Julie Stewart, our president, will be moderating a panel of stalwart conservatives who will explain why cutting incarceration rates is good fiscal -- and public safety -- policy.  Here's the all-star list of speakers:

Hon. Asa Hutchinson, former Congressman, U.S. Attorney, & Administrator of the U.S. Drug Enforcement Administration
Grover Norquist, President, Americans for Tax Reform
Pat Nolan, President, Justice Fellowship
Tim Lynch, Director, Project on Justice, Cato Institute

If you're in the DC area, the briefing will be in 210 Cannon House Office Building. If you're not in DC, you can get live updates on the briefing by following FAMM on Twitter.

Overincarceration Crisis, Exhibit 274

Anyone who follows criminal justice issues has probably heard that the United States is home to five percent of the world’s population but 25 percent of the world’s prisoners. While there are countries with much harsher penal systems – compare a woman who commits adultery in Indiana versus Iran – but our draconian drug sentencing laws can lead to some embarrassing comparisons.

This week, a man was arrested in Washington State at the request of the government of the Republic of Bosnia and Herzegovina. That government wants the man extradited so he can stand trial on charges that he, as a Bosnian soldier, killed an unarmed Croat civilian and then shot his inconsolable wife in the head with an automatic rifle because she wouldn’t stop crying.

At the same time, a young man living in New Jersey sold a cup and a half of crack cocaine to an undercover federal narcotics officer.

If extradited, the alleged Bosnian murderer faces a mandatory minimum of 10 years. That is the same sentence the New Jersey man faces for his one crack sale!!!!

Lock 'Em Up Till They Can't Commit Any More Crimes

That notion of cruel logic may be what is driving Virginia's lower recidivism rates, according to this article in The Washington Post.

How Virginia has achieved lower-than-average recidivism rates is difficult to pin down, experts said. One likely factor, though, is lack of parole.

The state did away with parole in 1995 after get-tough-on-crime initiatives by then-Gov. George Allen (R). Prisoners are required to serve at least 85 percent of their sentences. By keeping prisoners behind bars longer, the effect is to “age them out of their crime-prone years,” said Brian Ostrom, a researcher for the National Center for State Courts who has extensively studied Virginia’s prison system.

Virginia’s released prisoners have been getting older. According to state statistics, more than half those released in the early 1990s were younger than 30, a group reincarcerated at the highest levels. By fiscal 2006, a third of those released were younger than 30, and the percentage of prisoners 40 to 49 who had been released tripled.

Another demographic shift: Female prisoners, who are less likely to return to prison than males, have made up a greater portion of those released in recent years.

The only problem with this policy of "lock them up until they're too old to commit more crimes" is that it doesn't consider whether people actually need or deserve that much prison time.  

What ever happened to making the time fit the crime and the individual offender?

To be fair, Virginia has also worked hard to create alternatives to prison for low-risk offenders and use prison space for higher-risk offenders, which seems to have helped cut recidivism.  (But see our previous post on this high-vs.-low-risk-offender business and how it might warp recidivism data.)

Long sentences seem popular with voters, but popularity isn't a measure of good policy.  Offenders should get sentences that fit them and their crime -- that's what makes a criminal justice system just.  Low recidivism is a goal worth achieving, but it shouldn't come at the price of justice.

Lock 'Em Up -- Even if They Won't Reoffend

The big news in sentencing today is this new recidivism data from the Pew Center on the States.  Some of the key findings:

• More than four in 10 offenders returned to state prison within three years of their release.

• The three year recidivism rate for inmates released in 1999 was 45.4 percent and 43.3 percent for those released in 2004.

• A comparison of the states included in the most recent national studies reveals recidivism rates have been largely stable for well over a decade.

• Recidivism rates vary widely among the states and there are a number of potential explanations for the differences.

• If states could reduce their recidivism rates by just 10 percent, they could save more than $635 million combined in one year alone in averted prison costs.

Sentencing nerds like us get excited about recidivism data because it's usually rare, not comprehensive, and vital for talking to lawmakers about public safety and sentencing policies.

How do sentencing decisions impact the rate at which people reoffend?  Well, it's a bit counterintuitive.  Pew found that states that lock up lots of low-risk offenders have lower recidivism rates (see page 17 of the report).

Come again?

That's right -- the more low-risk, low-level offenders a state locks up, the lower their recidivism rates are.  When these people get out, they're not likely to go back -- because they were low-risk to begin with.  The opposite is true with high-risk, serious offenders.  States that imprison a lot of serious offenders are likely to have higher recidivism rates -- because these people are, by definition, likely to reoffend.  An example:

“A lot of people who might be put on probation or diverted into an alternative program in another state wind up going to prison in Oklahoma,” notes Michael Connelly, administrator of evaluation and analysis in the Oklahoma Department of Corrections. “These lower level folks aren’t as likely to recidivate, so it benefits our overall numbers and makes us look like we’re doing an even better job than we’re doing.” Oklahoma’s overall recidivism rate for offenders released in 2004 was 26.4 percent, the third lowest in the country.

Does that disturb anyone else?  Why are we using prison for people who, by definition, aren't likely to come out and commit more crimes?  If the goal of prison is to keep us safe, isn't that a big ol' waste of money?

If Pew is right (and though counterintuitive, it seems right), it makes me question the entire nature and value of recidivism data.  Is a low recidivism rate really an objective measure of how effective incarceration is?  Or is it really just about who ends up going to prison?

I'd love some comments and feedback on Pew's findings and what they might mean for state and federal sentencing reform.

-- Stowe

Massachusetts Monday

Crack cocaine is the subject of the day in Massachusetts.  This weekend, community members and experts, including FAMM's Barb Dougan, met to remember, discuss, and mourn the impact of crack cocaine on Boston's African American community in the 1980s.  Barb was on hand to explain how Congress's fears about crack -- some real, many overblown -- sparked the creation of the harsh mandatory minimums we now have:

In the late 1980s, Congress brought back mandatory minimum drug sentences, treating crack offenses much more harshly than powder cocaine crimes, said Barbara Dougan of Families Against Mandatory Minimums.

“These laws were not passed out of concern for young, black men, but out of fear of young, black men,” Dougan said.

The result, she said, was an explosion in the prison population that has left one out of nine black men between the ages of 20 and 34 behind bars.

“Clearly, they’ll be coming back to our communities,” said Boston Police Superintendent Paul Joyce, “and we want to make sure they end up in a better situation than they began.”

Supt. Joyce is right.  Mandatory minimums aren't helping a lot of people get the treatment, rehabilitation, and skills they need to come back as law-abiding citizens.  Some people can and do clean up in prison, if treatment is available.  But it comes at a high price.  When we use tough prison sentences as the knee-jerk reaction to a new and scary drug -- crack or otherwise -- we get bad justice, full prisons, huge costs, and not much additional public safety in return.

Unlike the federal laws, Massachusetts’ state laws don’t distinguish between crack and powder cocaine. But they still rely on mandatory minimum sentences. Fortunately, Massachusetts started to chip away at rigid drug sentencing laws last session, and several bills have been filed to expand reforms this session. We look forward to watching Massachusetts set a new course when it comes to drug policy.

Good and Mad Reading for the Weekend

A new report from the NAACP should make educators, parents, students, and citizens as burning-hot mad as a Bunsen burner.  It's called Misplaced Priorities: Over Incarcerate, Under Educate.  As the title suggests, it explains how our schools and kids get fewer and fewer dollars as prisons gobble up more and more of state and federal budgets.

The report offers profiles of six cities and three people who have been through the criminal justice system.  The report also provides interesting numbers showing the connections between under-performing schools and neighborhoods with high incarceration rates.  The NAACP offers a list of suggestions for moving money from prisons to schools:

It is critical that all states prioritize education over incarceration. The NAACP calls for the downsizing of prisons and the shifting of financial resources from secure corrections budgets to education budgets. This can be accomplished if states accept the following recommendations: ...

6. Reform sentencing and drug policies: Eliminate mandatory minimum sentencing for drug offenses that help fuel drug imprisonment.

7. Use diversion for drug-involved individuals: Reform prosecutorial guidelines to divert people to treatment who would otherwise serve a mandatory prison term.

8. Shorten prison terms: Send young offenders who would otherwise receive mandatory sentences to structured programs to help them earn their GED and shave time off their prison sentences.

With a federal government shutdown looming because of a budget battle, all eyes are on how we spend our tax revenues.  Every dollar we spend on prisons is one that can't go to education.  And if you believe (as many do and statistics seem to show) that education can help keep people out of prison, education is by far the better investment.

-- Stowe

Strange Bedfellows

Is it weird that the NAACP and conservative groups like the Americans for Tax Reform agree that our sentencing policies need an overhaul?

It shouldn't be, and this Washington Times article does a nice job explaining why:

Leaders of the nation’s best-known civil rights organization are teaming up with some of conservatism’s top names to call for radical change in the costly way many states deal with convicted felons.

Society would be better served over the long haul if nonviolent criminals were required to work and pay restitution instead of being incarcerated in high-cost prisons, the coalition of NAACP and conservative leaders contend.

“We’re locking up the folks we’re mad at but not afraid of,” former California Republican Assembly Leader Pat Nolan told The Washington Times. “We should lock up only people we’re afraid of. It’s a waste of taxpayers’ money otherwise.” ...

“We need to be ‘smart on crime’ rather than ‘tough on crime’ and address soaring incarceration rates in this country,” Mr. [Benjamin Todd] Jealous [NAACP President] said in a statement Wednesday. “Failing schools, college tuition hikes and shrinking state education budgets are narrowing the promise of education for young people all across the country.”

“Meanwhile,” Mr. Jealous added, “allocations for our incarceration system continue to increase, sending our youth the wrong message about their future.”

There's some disagreement about how to spend the money saved from shorter sentences and smaller prison systems -- the NAACP favors education, while conservatives want the states to spend it as the states see fit -- but the groups agree that we send too many people to prison for too long, at too high a cost.

Mandatory minimum sentences are the main culprit.  There are still many conservatives and liberals alike who need convincing that these punishments are neither cheap nor smart nor fair nor respectful of the courts' role in our country.  These aren't conservative or liberal issues -- they're issues all of us should agree on.

Cut Costs, Increase Safety, Win Votes

Yes, it can be done, says Justice Fellowship president Pat Nolan in this op-ed in the Indianapolis Star.  In Indiana, Governor Mitch Daniels has courageously supported cutting the state's corrections budget by reshaping some sentencing policies, but has been thwarted by his own legislature, a move Nolan says is unwise and unacceptable:

A commission of the state's top officials from all three branches of government proposed a way to free up costly prison beds and use them for incarcerating dangerous criminals while using less-costly ways to punish and rehabilitate low-level offenders, such as community supervision paired with substance abuse treatment. Some of the savings were to be shared with counties to improve community supervision. Daniels and Chief Justice Randall Shepard endorsed these proposals.

However, SB 561 was changed dramatically in the Senate. Instead of saving money, amendments would force the state to build three new prisons at a cost of $210 million each, with another $48 million per year to operate each one. This is because the amendments add years of prison time to Indiana's already severe penalties.

The amendments are unaffordable in an era when even K-12 education has to suffer cuts.

Nolan offers Texas as an example of a state that cut prison populations by keeping more low-level offenders in the community and giving them supervision and drug treatment -- and actually saw decreases in crime.  What voter could complain about that?

Not many, according to a new poll from Right on Crime.  The excellent blog Grits for Breakfast covers the results:

The live telephone survey of 802 registered Texas voters, which was conducted by Baselice & Associates on March 20-22, found:

• 67 percent of registered voters and 68 percent of conservative voters favored policymakers applying the same level of scrutiny to the size and cost of the Texas prison system as to other government programs.
• 80 percent of registered voters and 77 percent of conservative voters favored requiring nonviolent, first-time felony offenders to work and pay restitution while on mandatory probation supervision in order to help close Texas' budget shortfall.
• 78 percent of registered voters and 76 percent of conservatives favor stronger court oversight and mandatory treatment instead of prison for low-level drug possession offenders with no prior felonies on their record - a proposal that is embodied in SB1076, which is slated to save Texas $112.5 million over the 2012-13 biennium.

It appears that Texas's reforms aren't just smart and effective, but also popular among voters.

That's a hopeful message that all state and federal lawmakers need to hear.  Tough sentences and harsh mandatory minimums may be going out of style.  Legislatures should listen up.

Sentencing Nerd Red Alert!

Hang onto your sentencing grids and calculators, sentencing nerds, because there's a brand new website that is going to have you counting up prison beds and cost savings like it's going out of style.

It's called the Cost-Benefit Knowledge Bank (CBKB) for criminal justice, and it's run by Vera Institute of Justice with support from the Bureau of Justice Assistance.  Its purpose:

Few states and counties have a sense of the return on investment they are getting from their criminal justice system expenditures. Money is spent and assumptions are made about outcomes, financial and substantive, without much notion of the real costs or benefits incurred. Yet this information is highly relevant to the decisions policymakers need to make. CBKB helps to broaden the knowledge base of practitioners and policymakers about criminal justice cost-benefit analysis, deepen the knowledge and practice in this area, and support practitioners in building their capacity to promote, use, and interpret cost-benefit analysis in criminal justice settings.

Have no idea what the heck cost-benefit analysis (CBA) is, or how it works?  The website explains the basics of CBA, offers a helpful glossary of terms, and has a nifty toolkit in progress, which promises to offer gadgets that calculate things like cost savings for taxpayers and costs to victims.

It's one thing to argue that we need sentencing reforms; it's quite another to be able to take a package of reforms to a legislature and show them what they'll save, whether it is proven to work, and how it will impact public safety.

CBKB isn't just a sentencing nerd's dream, but also a lawmaker's dream.

Floodgates Opening? Not so fast...

Stateline is a must-bookmark website for anyone who wants to follow state criminal justice and sentencing policy updates around the country.

Today, it features a nice article on California's prison overcrowding crisis.  The piece does a particularly helpful job explaining all the moving parts involved in downsizing (or not downsizing) a prison population -- the legislature, the governor, federal overseers, prison guard unions, law enforcement officers who have fears about high recidivism rates.  When downsizing a prison population comes up, opponents can easily whip up  fears about throwing open the prison gates and letting everyone out.  But in California, at least, letting people out -- even with a crisis -- appears to be anything but easy.

Of course, there would be no prison overcrowding crisis if sensible sentencing policies had been in place all along.  When thousands of people get long mandatory minimums (like California's three strikes sentences), prisons are going to fill up fast.  Changing those policies involves lots of moving parts, too:

Corrections policy, meanwhile, is made not only in courtrooms and in the halls of the state Legislature but also at the ballot box. Through ballot initiatives, California voters have ordered a range of criminal justice changes over the years, ranging from “three strikes” sentencing legislation to laws cracking down on sex offenders.

In the Legislature itself, partisan bickering isn’t the only dynamic at work. The politically powerful prison guards’ union, the California Correctional Peace Officers Association, has tended to oppose policies that could result in any decline in the prisoner population, thus ensuring steady employment for its members. 

Union leaders insist that is no longer the case. President Mike Jimenez and others speak of a “new CCPOA,” one that has embraced inmate rehabilitation, such as job training and substance abuse treatment, as a way to close the revolving prison door. At the same time, however, the union underwrites crime victims’ groups that regularly press for tougher sentences.

Fears about floodgates opening and hordes of prisoners returning overnight might be overstated.  And in the future, those fears can be avoided entirely with smarter sentencing policies that treat prisons as what they are:  rare commodities.

How Old is Too Old for Prison?

This interesting article from The Oklahoman poses that question by presenting the cases of two alleged prescription drug offenders, aged 73 and 70.

Opal Verndean Wesley, 73, of Bristow, was charged Friday in Creek County on complaints of possessing controlled prescription drugs with intent to distribute and for having a firearm after prior felony convictions.

If convicted, she faces six years to life in prison. She was booked into the Creek County jail Friday.

Nearly 200 miles south in Love County, Louis Harold Norton, 70, of Marietta, accepted a plea deal on March 24 for 30 years in prison with 15 suspended. The plea stemmed from two 2009 felony charges of distributing painkillers. He is currently in the Department of Corrections custody.

They don't know each other, but officials say it's eye-opening and troubling that senior citizens are selling their legally obtained prescriptions. Though these are rare cases, these two could spend their twilight years behind bars.

With longer sentences (and mandatory sentences), prisoners stay in prison longer and get older.  They also become more expensive for taxpayers to maintain as health problems and old age set in.

So, how old is too old for a nonviolent drug offender to go to prison?

Good and Mad Reading for the Weekend

This 125-page statement of reasons in the case of U.S. v. Bannister is the latest installment in Judge Jack Weinstein's proud tradition of abnormally long, beautifully-written, heart-stirring opinions that question, criticize, bemoan, mourn, skewer, and disembowel our absurdly harsh mandatory sentencing system.

The opinion is a worthwhile read because it could double as a primer on everything (or almost everything) that's wrong with our criminal justice system.

It's a drug case involving a crack conspiracy that took place in the Bedford-Stuyvesant neighborhood of New York City.  Judge Weinstein spends over 30 pages talking about this famous neighborhood and its conditions of poverty, high crime, and low economic opportunity for residents and the defendants who lived there.  He even includes a photo!

How's that for considering the history and circumstances of the offender at sentencing?

Judge Weinstein then spends over 30 pages going over America's sentencing policies -- how they've turned us into the world's leading jailer, don't reduce crime, create racial disparities, and cost a fortune.  It's not until page 93 that Judge Weinstein starts discussing how he's going to sentence the defendants.

At sentencing, Judge Weinstein was required to give the defendants a sentence that was "sufficient but not greater than necessary" to comply with four purposes of punishment, including retribution.  Retribution, in non-legalese, means the time must fit the crime.  Here's how Judge Weinstein handled that prong of his sentencing decision:

In moral terms, those working in the drug trade are primarily responsible not for drug abuse but for the trade itself and the violence and extortion attendant to it.  Those who engage in violence and extortion should be punished in accordance with the danger their actions represent to the community.  Street-level dealers are at least indirectly complicit in such acts; this commerce cannot continue without people serving their function.  But it cannot be assumed that such low-level players are morally in the same category as murderers, assailants, and major purveyors of monetary frauds.  They may be little more than cogs, easily replaced.  To fix their punishment under mandatory minimum sentences, not on the basis of their limited roles and acts but on the quantities of drugs they sell by chance or in cooperation with others of their ilk, ill accords with a fair sense of retribution.  

One of the fears about giving judges sentencing discretion is that they'll misuse it.  To be fair, that's always a possibility and sometimes a reality.  Fear of judicial discretion is grounded in a mistrust of judges -- a belief that they're not thoughtful, that they're ideological, that they're soft on crime.

But a 125-page opinion giving the reasons for one particular sentence is not the work of a judge who isn't thinking, isn't considering all the facts, doesn't care about public safety, and isn't using his considerable legal, judicial, and human experience to make the best decision he can. This is what good judging is about. People may disagree with Judge Weinstein's conclusions, but they can't call him a bad judge.  (And, for the record, his sentencing decisions in this case seem well-reasoned to me.)

Here's some food for thought:  how much fairer might sentences be if every judge gave every case this kind of thorough and thoughtful treatment, and then got to give an appropriate sentence instead of a one-size-fits-all mandatory minimum?

-- Stowe