More Prisons Doesn't Necessarily Mean More (Prison) Jobs

This is how bad the economy is in southwestern Virginia: People are wishing they had more criminals in town.

That's the opening line of this interesting article in today's Washington Post, entitled "New Virginia Prison Sits Empty, at a Cost of More than $700,000 a Year."

It details how decreasing crime, budget cuts, and fewer people going to prison have led to prison closures throughout Virginia -- including an inability to launch a brand new prison that promised hundreds of jobs to a stricken part of the state:

Three hundred new jobs — maybe 350 — that’s what people were told when the prison was planned. With about 11 percent unemployment and no relief in sight, that sounded really good to an awful lot of people here.

But months after the commonwealth finished building the 1,024-bed medium-security prison for $105 million, it remains empty, coils of razor wire and red roofs shining in the sun, new parking lot all but deserted and a yawning warehouse waiting for supplies.

And it’s costing more than $700,000 a year to maintain.

A half-dozen employees work there, keeping the heat on in the winter to prevent the pipes from freezing, the air-conditioning on in summer to prevent mold from growing.

In 2008, the inmate population was projected to grow by a thousand a year, according to a report given to the secretary of public safety. The commonwealth had been expanding prisons and building new ones.

But a couple of things happened: The economy collapsed. And the number of prisoners didn’t grow as expected.

So, let's balance this out.  Pros:  lower crime, fewer (expensive) prisoners, and fewer (expensive) prisons. Cons:  fewer prison jobs, taxpayers already paid to build the prison, and taxpayers are still paying for its upkeep.  Jobs are certainly important, but do we really want to fill prisons just to employ people?  Is that a fiscally wise trade-off, for taxpayers or for society?  What if Virginia created 350 jobs for supervising more nonviolent offenders in the community, instead of sending them to prisons?  What if rural areas didn't look to prisons to fill their employment needs?

How would you create 350 jobs in rural areas without resorting to filling prisons?

Good and Mad Reading for the Weekend

FAMM Profile of Injustice Derrick Cain gets his story told in the Philadelphia Daily News.  It's a story that should make anyone who cares about justice so mad that they'll cancel their Memorial Day weekend plans and stay home and write letters to Congressmen, telling them 25 years of mandatory sentencing is enough.

Happy Memorial Day, folks.  Let's remember the people who can't be home barbecuing with their families this weekend because they're in prison serving unjust and excessive sentencing laws.

Sentencing Reform isn't for Losers

We like this article over at The Economist, and especially like its tagline:  "With a record of being tough on crime, the political right can afford to start being clever about it."  Check out this great intro:

The word commonly used to describe a politician who publicly announces he wants to send fewer criminals to prison is “loser”. But back in February there was David Williams, president of Kentucky’s Senate, speaking in favour of a bill that would do just that. The bill in question would steer non-violent offenders towards drug treatment rather than jail. It is projected to save $422m over the next decade, and will invest about half those savings in improving the state’s treatment, parole and probation programmes. Mr Williams, who believes Kentucky “incarcerates too many people at too great a cost,” praised the bill for recognising “the possibility for forgiveness and redemption and change in someone’s life”. It passed the Republican-controlled Senate 38-0, and on May 17th Mr Williams went on to win the Republican nomination for governor.

Steady Decline in Major Crime Baffles Experts

That's the headline of this excellent article from The New York Times.  Believe it or not, us sentencing nerds get baffled all the time -- by harsh punishments, unnecessary mandatory sentences, and our country's absolute love-fest with filling our prisons to bursting.  But the baffling happening in this article is actually good news:

The number of violent crimes in the United States dropped significantly last year, to what appeared to be the lowest rate in nearly 40 years, a development that was considered puzzling partly because it ran counter to the prevailing expectation that crime would increase during a recession. ...

Nationally, the drop in violent crime not only calls into question the theory that crime rates are closely correlated with economic hardship, but another argument as well, said Frank E. Zimring, a law professor at the University of California, Berkeley.

As the percentage of people behind bars has decreased in the past few years, violent crime rates have fallen as well. For those who believed that higher incarceration rates inevitably led to less crime, “this would also be the last time to expect a crime decline,” he said.

“The last three years have been a contrarian’s delight — just when you expect the bananas to hit the fan,” said Mr. Zimring, a visiting law professor at New York University and the author of a coming book on the decline in the city’s crime rate.

But he said there was no way to know why — at least not yet.

“The only thing that is reassuring being in a room full of crime experts now is that they are as puzzled as I am,” he said.

Indeed.  Making the link between locking people up and falling crime rates has always been difficult.  Our knee-jerk response to most crimes du jour has been to slap mandatory sentences on them.  As states cut back on incarceration and get smarter on crime, their prison populations should keep dropping -- and that doesn't necessarily mean crime will go up.

Overincarceration = Overconsumption?

Lots of interesting commentary over at the Los Angeles Times today on the Supreme Court's ruling that will require California to downsize by 30,000 prisoners over the next two years.

The column I like best is this one from Timothy Rutten, which seems both reasonable and realistic about the politics of crime:

Monday's ruling is as much an indictment of this state's politics as it is of our correctional system, and it ought to prod us into considering a couple of unpleasant truths: One, America generally — and California in particular — simply sends too many people to prison for too long relative to their offenses. Two, this state's prisons are perhaps the prime example of our relatively recent popular impulse to insist on having things for which we don't want to pay — in this case, mass incarceration of nonviolent offenders. The situation has been exacerbated by the intrusion of another recent trend:the infusions of single-issue politics into our criminal justice system.

Sometimes this has amounted to wholesale overhauls, as with the 1990 Proposition 115 or the 1994 three-strikes initiative; sometimes, it involves people coalescing around a particular kind of crime and demanding huge increases in prison time for committing it. In either instance, prison funding is an afterthought.

I like the framing of overincarceration as yet another variety of American overconsumption.  But, Rutten notes, what we're buying isn't necessarily more public safety:

To thebewilderment of experts in virtually every camp surrounding this highly politicized issue, crime has continued to decline to the lowest levels in 40 years. These declines certainly confound those criminologists who are inclined to link crime to economic deprivation and joblessness. Despite the savagery of the current recession, for example, robbery rates fell by 8% in 2009 and by 9.5% last year. By the same token, the national prison populations actually have fallen over the last few years. So much for the incarceration-rate-is-destiny argument.

-- Stowe

Left and Right Join in Support of Fairer Sentences for ALL Crack Offenders

Asa Hutchinson, the former Bush Administration DEA chief, and Laura Murphy, the ACLU's legislative guru in Washington, DC, joined forces on this compelling op-ed urging the Justice Department to support retroactive application of the U.S. Sentencing Commission's crack penalty-reducing amendment. The piece appeared today on the irreplaceable Main Justice blog. The Sentencing Commission's hearing on retroactivity will take place on June 1st.

Should Justice Depend on a Date?

It does in this infuriating article from the Pittsburgh Post-Gazette. It's about Eric Brewer, a man unlucky enough to have committed his federal crack offense before the August 3, 2010 effective date of last year's Fair Sentencing Act.  In other words, too soon to get the benefit of the new law:

In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.

If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams.

The Fair Sentencing Act was lauded for lessening the vast and racially tinged disparities between sentences for crack-cocaine offenders, more likely to be African-American, and powder cocaine offenders, more likely to be white.

The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.

The solution is for Congress to clarify that the new crack reforms apply to everyone, no matter when they committed their crack offense.

Advice to the States: Don't Be the Next California

It's old news by now:  states are coping with small budgets and big, expensive prison systems.  How to deal?

If you're California, the federal courts have just answered that question for you.  

Today, the U.S. Supreme Court upheld an order that the state should release 46,000 of its prisoners to restore constitutional conditions to its prisons.  California's notoriously overcrowded prison system has resulted in poor medical care for the confined -- care so poor that it violates the Constitution.  

How did California get in this mess?  The state's three strikes law played a significant role.  It sent thousands to prison for stretches of 25 years to life.  As more prisoners came in, stayed longer, weren't allowed parole, and got older and sicker, the prison bill got bigger and bigger.  California's budget hasn't.  Voila.  Prison crisis.  It took a federal court order (now upheld by the Supreme Court) to fix a constitutional violation that never should have arisen.

All of this was avoidable.  If there had been better sentencing policies in place, this might never have happened (or at least not gotten so bad). California may not have been able to avert this crisis, but it can prevent another one in the future by passing smarter sentencing laws and repealing its mandatory minimums.

Other states are grappling with their own prison and budget crises.  Our advice:  don't be like California.

In West Virginia, this editorial shows that you don't need a huge number of prisoners to have a prison crisis. and it criticizes lawmakers for failing to downsize and save money:

The number of West Virginians locked in steel cages has more than quadrupled, from 1,500 in the 1980s to 6,849 today -- and projections foresee 10,000 confined by 2017. ...

First, lawmakers failed to make pseudoephedrine a prescription-only medication, which would end meth labs using over-the-counter pills. [Exactly the solution posed in the Frontline piece we recently blogged on.]

Second, they failed to pass a bill to move low-risk, nonviolent offenders into cheaper work camps and work-release centers.

Third, they failed to shorten several mandatory prison sentences that are longer than the U.S. average.

Why not just get rid of mandatory prison sentences altogether?  Mandatory time in means mandatory money going out -- of state coffers.

Undeniably, states max out prison space when they put too many people in for too long.  Instead of turning off the spigot, many states try to solve the problem at the back end, when people get out.  For example, New Jersey Assemblywoman Bonnie Watson Coleman bemoans the fact that her state repealed a provision letting inmates out 6 months early to get supervision and other assistance so that they wouldn't return to prison.  While this certainly sounds like a worthwhile provision, and both front and back-end reforms are necessary to return prisons to a manageable size, it's at the front end where the biggest bang for the buck can and should be seen.

Just ask California.

President Obama's New Pardons Not Much to Celebrate

It's official -- President Obama, after 849 days in office, has issued another 8 pardons.  That makes the grand total a measly 17 pardons in 2 and a half years.

The list isn't much to applaud.  Most of the crimes are almost laughably minor (10 points to any reader who knew it was a crime to aid and abet the possession and sale of illegal American alligator hides!).  Most of the sentences were -- at least in the federal sentencing universe -- short.  Most of the convictions were pathetically old, dating as far back as 1975 (before this blogger was born!).

Worst of all:  no commutations.

Seriously?  There's not one person among 210,000 federal prisoners who deserves to go home a little bit early?  Not one nonviolent, low-level, or first-time offender serving some ungodly-awful, decades-long mandatory minimum?  Not one lifer who maybe, just maybe, doesn't deserve to die in prison?

Here's the list, from the Department of Justice:

Randy Eugene Dyer – Burien, Wash.

Offense: Conspiracy to import marijuana (hashish), 21 U.S.C. § 963; conspiracy to remove baggage from the custody and control of the U.S. Customs Service and convey false information concerning an attempt to damage a civil aircraft, 18 U.S.C. § 371.
Sentence: June 19, 1975; Western District of Washington; five years in prison and two years of special parole (special parole term subsequently vacated.)

Danny Alonzo Levitz - Angola, Ind.

Offense: Conspiracy, 18 U.S.C. § 371.
Sentence: Aug. 18, 1980; Northern District of Indiana; two years of probation, $400 fine.

Michael Ray Neal - Palm Coast, Fla.

Offense: Manufacture, assembly, modification and distribution of equipment for unauthorized decryption of satellite cable programming, 47 U.S.C. § 605(e)(4).
Sentence: May 31, 1991, as amended June 2, 1992; Eastern District of Virginia; six months in prison, three years of supervised release conditioned on six months of home confinement, $2,500 fine.

Edwin Alan North - Wolcottville, Ind.

Offense: Transfer of a firearm without payment of transfer tax, 26 U.S.C. § 5861(e).
Sentence: Aug. 18, 1980; Northern District of Indiana; six months of unsupervised probation.

Allen Edward Peratt Sr. - Sioux Falls, S.D.

Offense: Conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1) and 846.
Sentence: July 23, 1990, as amended May 29, 1991; District of South Dakota; 30 months in prison, five years of supervised release.

Christine Marie Rossiter - Lincoln, Neb.

Offense: Conspiracy to distribute less than 50 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and 846.
Sentence: Oct. 7, 1992; District of Nebraska; three years of probation conditioned on performance of 500 hours of community service.

Patricia Ann Weinzatl - Prentice, Wis.

Offense: Structuring transactions to evade reporting requirements, 31 U.S.C. § 5324(a)(3).
Sentence: Aug. 15, 2001; Western District of Wisconsin; three years of probation, $5,000 fine.

Bobby Gerald Wilson - Summerton, S.C.

Offense: Aiding and abetting the possession and sale of illegal American alligator hides (Lacey Act), 16 U.S.C. § 3373(d)(1)(B) and 18 U.S.C. § 2.
Sentence: Dec. 19, 1985, as amended May 13, 1986; Southern District of Georgia; three and one-half months in prison, five years of probation conditioned on performance of 300 hours of community service.

Good and Mad Reading for the Weekend

Judge Weinstein is a one-man Supreme Court docket waiting to happen.

You'll remember Judge Jack Weinstein, of the Southern District of New York, for taking a stand against child porn mandatory minimums in the Poluizzi case and for his 125-page opinion explaining his sentencing decisions in a crack case from Bedford-Stuyvesant. So far, he's the only person who's been the subject of our Good and Mad Reading for the Weekend twice. This makes #3.

This one is another child porn case, and it has a whopper of a 349-page opinion (401 pages, if you include the appendices). In it, Judge Weinstein refuses to follow the five-year mandatory minimum for distribution of child pornography, finding that the sentence is cruel and unusual (and unconstitutional) as applied to the young, immature, and troubled defendant.

The case is United States v. C.R., and it involves a defendant (now age 21) who began looking at child porn at age 15 and  committed his current offense of child porn "distribution" at 19.  The "distribution" wasn't actually C.R. sending or selling the porn images to someone else.  The "distribution" happened when, uninvited, an undercover FBI agent downloaded child porn images from C.R.'s computer using a peer-to-peer file-sharing program.  That "distribution" carries a mandatory 5-year prison sentence without parole.

Judge Weinstein found the sentence to be cruel and unusual, as it applied to C.R.'s case.  He gave C.R. 30 months instead.  The analysis of the cruel and unusual punishment issue begins on page 323.  The judge's decision that the 5-year mandatory minimum was unconstitutional depended largely on the fact that C.R. was a juvenile during most of the time he was viewing child pornography, had a troubled childhood in a home where sex and pornography were prevalent, and "played an exceedingly limited role in the overall child pornography market," p. 325.

As usual, Judge Weinstein raises excellent questions about the value of a mandatory minimum for the defendant ("Young C.R. is far from perfect -- a characteristic shared with many. But this is not a reason for destroying him in prison," p. 7), the victim ("Whether a sentence of many years imprisonment for passive viewers will improve the victim's life is dubious," p. 15), and public safety ("A persistent concern is that observing child pornography might lead viewers to themselves sexually abuse children in the future. Reliable empirical evidence on this issue is lacking," p. 60).

Judge Weinstein brings his decision home in a way that many parents of teenage boys should appreciate:

Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons. A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age. p. 329

One of the problems in sentencing reform is that people don't believe unjust sentences can happen to them.  Their kid would never do such a thing.  Or it's okay, as long as it's someone else's kid.

But what if it were your own?

Arizona's Growth Industry: Nothing to Be Proud Of

Here's a lengthy but excellent article from The Cronkite News today about conservatives, sentencing reform, and the phenomenal growth in Arizona's prisons.

As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable.

While Arizona’s population increased by 24.6 percent from 2001 to 2010, the population in state and private prisons rose 50.8 percent to 40,508. Bill Hart, a senior policy analyst at the nonpartisan Morrison Institute for Public Policy at Arizona State University, said laws requiring mandatory minimum and maximum sentences for a broadening range of non-violent offenses contributed to that.

“Incarceration has long been a growth industry in Arizona,” he said.

Rep. Cecil Ash, R-Mesa, a former public defender who has pushed unsuccessfully for changes to sentencing laws, said incarcerating non-violent offenders whose punishments could be handled in less-expensive ways leaves other state programs neglected. He pointed to lesser drug offenses and white-collar crimes as examples.

“There are only limited funds to go around, and it’s being used in the Department of Corrections,” Ash said. “If we are wasting money in some areas that could be better used in health care or education, then it has an impact.”

The article also gets into the politics of moving reform legislation in a notoriously tough-on-crime state like Arizona.  One Arizona prosecutor's words are particularly galling:

Maricopa County Attorney Bill Montgomery said he looks to crime rates to see what’s working.

“If we’re warehousing them, fewer crimes are being committed, and then other offenders who are out there on the streets don’t have the professionals teaching them what to do,” he said.
Montgomery added that there’s a lack of objective data on the effect of alternatives to prison sentences.

“And without being able to do that I would be very suspect of people trying to say, ‘Aha! Diversion reduces crime which reduces an inmate population,’” Montgomery said.

Even if he's right about crime rates and the benefits of "warehousing" (those are human beings, by the way, not widgets or boxes or crates), it's an awfully high price to pay, and how much bang for their buck are Arizonans really getting?  And he seems woefully ignorant of the reams of "objective data" that say that alternatives like drug courts reduce recidivism and improve lives.

All around, a good example of how much work still needs to be done to change hearts, minds, and budgets on sentencing issues.

Are Mandatory Minimums for Meth Pointless?

What drives methamphetamine usage and addiction rates? This episode of Frontline gets at the heart of that question and has a fascinating answer:  it's drug availability and purity.

What's even more interesting is what isn't mentioned -- not even once -- in the 53-minute program:  mandatory minimum sentences for meth.

Mandatory minimums were created with the goal of stopping meth usage and deterring meth producers and sellers.  But the Frontline piece (which relies on extensive investigative reporting from The Oregonian) makes a compelling case that meth usage and addiction rates have risen and fallen over the years based almost entirely on (1) whether meth-makers could get their hands on ephedrine and pseudoephedrine, and (2) how good the meth was.  When the key ingredients were widely available, meth was of higher quality, and usage and addiction rates spiked.  When Congress and states began heavily regulating and limiting the key ingredients, drug quality dipped, and so did drug use.  Oregon made pseudophedrine and ephedrine available by prescription only, and it made a significant dent in meth production and crime.  Of course, meth producers and sellers are creative and determined, so they will always probably look for a new way to get their ingredients and customers.

But, if Frontline's conclusions are correct, what is the point of having mandatory minimum sentences for meth?  Wouldn't it be wiser and more cost-effective to use the money we spend on long meth prison sentences on drying up illegal sources of the drug?  Or treatment for addicts?  If the real source of our meth "epidemic" (note the charged language in this piece -- a hallmark of any "drug du jour") is about the economics and science of creating the drug, what value are we getting from indiscriminately locking up meth offenders for 5, 10, 15 years or more?

Understanding Crack Retroactivity

FAMM has been deeply involved with recent reforms to federal crack cocaine sentencing laws.  Last year, the Fair Sentencing Act of 2010 (FSA) reduced the amounts of crack it takes to earn 5 and 10-year mandatory minimum sentences.  Alas, those reforms don't benefit people who are already in prison (they aren't "retroactive").  The FSA instructed the U.S. Sentencing Commission to rewrite the crack sentencing guidelines, which it has done.  The new guidelines are primed to go into effect on November 1, 2011.

The big question everyone is asking -- including the Commission -- is whether those guideline changes should be made retroactive, so that everyone (in and out of prison) can get fairer, more rational crack sentences.

On June 1, the Commission is having a hearing in Washington, DC to hear from experts (including FAMM) on whether the guideline changes should be made retroactive.  (We're saying yes, of course.)  The Commission is also accepting the public's opinions on the matter, until June 2.

How can you help?  Write to the Commission and urge them to support retroactivity (here's our sample letter to help).  Or sign FAMM's petition to support retroactivity.  If you want to attend the hearing in person, contact apage@famm.org (sorry, you won't be allowed to speak, but you can and should bring a photo of an incarcerated loved one to help put a human face on the issue).

If you want to catch up on what's happening on crack retroactivity, read our answers to frequently asked questions about Making Federal Crack Reforms Retroactive.  You'll be glad you did.

Support the Holder Memo, Oppose the Holder Proposal

Confused? We can explain.

On Friday, we learned that the Justice Department is floating legislation to impose new, mandatory minimum sentences on cyber crimes. Let me repeat: the Holder Justice Department supports one-size-fits-all penalties for crimes involving breaches of the nation's critical infrastructure.

This news is still hot so we are still taking it in and will have more to say later. For now, however, we just have lots of questions. Where's the evidence that mandatory sentences are needed? What is the average penalty current offenders receive? Is there evidence to suggest that these sentences are too lenient? Are new penalties needed to deter cybercrimes? What is the recidivism rate? Were other, less costly alternatives to mandatory minimums considered?

We will push for answers to these questions, but you can put us in the "very skeptical" column. We can't imagine the federal code news more mandatory minimums or that the interests of justice demand them. Our skepticism toward the Holder DOJ's new proposal is rooted in arguments made quite effectively by Attorney General Holder himself.

Last year, the Attorney General released a memo providing guidance to U.S. Attorneys around the county about charging and plea decisions. In his memo, Mr. Holder wrote, "Equal justice depends on individualized justice, and smart law enforcement demands it." His memo was a stirring call for discretion for prosecutors and for judges.

It's too bad the new Holder proposal ignores the wisdom of last year's Holder memo. We stand with the old Holder.

Crack Reforms -- Guideline and Mandatory Minimum -- Should be Made Retroactive

A great editorial in Florida's St. Petersburg Times argues in favor of making last year's changes to federal mandatory minimum sentences for crack crimes retroactive -- so that everyone can get a fair sentence, regardless of when they were sentenced.  Here's the meat of the piece:

Democrats and Republicans alike acknowledge the unfairness of the prior sentencing scheme. But as things stand, federal district court judges are in a bind and are balking. Congress should fix this, or prosecutors should stop pushing for sentencing under the old scheme.

Earlier this year, the U.S. Sentencing Commission proposed changes to the crack sentencing guidelines. While the Commission can't do anything to make Congress's changes to the mandatory minimums retroactive, it can decide what to do with its own new and improved crack sentencing guidelines.  On June 1, the U.S. Sentencing Commission will have a hearing on whether it should make those guideline modifications applicable to people already serving crack sentences.  FAMM will be on hand to urge the Commission to make the guideline changes retroactive.

You can sign a petition here or send in a letter to the Commission urging it to do the right thing and give everyone the benefit of fairer crack sentencing guidelines.  We don't know if or when the Commission will make a decision on guideline retroactivity, but your help could make a difference!  So far, we've gotten over 2,500 signatures on our petition, thanks to our members!

The Goldilocks Dilemma in Prison Sentences

How much prison time is enough to keep the public safe and keep someone from reoffending?

That's the question raised by two interesting articles from across the pond.  This one, from the UK's Guardian, sums up the new Ministry of Justice findings that are creating the fuss:

The first authoritative analysis of the effectiveness of different sentences shows that longer prison sentences of two to four years – which allow time to tackle offending behaviour – are more effective than jail terms of under 12 months, during which inmates are simply warehoused.

The findings will provide strong evidence to underpin legislation due next month from the justice secretary, Ken Clarke, to reform criminal sentencing and introduce a "rehabilitation revolution" to stabilise the record prison population in England and Wales.

A far more dogmatic column from The Express is belligerently titled "Lengthy Sentences are What the Public Wants" and argues that Britain doesn't spend enough money on prisons.  (To my American ears attuned to cries for budget cuts, that sounds positively bizarre!)  The column makes no new or original arguments -- it's simply the same old "tough on crime, lock 'em up and throw away the key" commentary we're now accustomed to in the debate about prison sentence length and public safety.

FAMM isn't against prisons.  Some people need them; some people need to be in them for a very long time.  Our beef is who decides (it should be judges) and whether the system is flexible so that sentences are effective and fit the offender and the crime.  Our slogan is "sentences that fit; justice that works."  Sometimes, prison fits and works.

These articles raise the Goldilocks dilemma:  how much prison is just right?  The answer is one every law student learns early:  it depends.  It depends on the offender and the crime.  And a judge -- not a legislature -- is in the best and most informed position to make that decision.

-- Stowe

Same as the Old Boss

The invaluable PardonPower blog reminds us once again that, on the issue of clemency, President Obama seens intent on following President Bush's poor example. P.S. Ruckman, Jr. writes:

The last 12 presidents have, on average, waited 248 days (.7 years) before granting the first act of federal executive clemency. President Obama waited 682 days (or 1.9 years) before granting a mere 9 pardons.

The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!

Obama has received almost 4,000 requests for commutation of sentence and has rejected 1,157.

They'll be back: Mandatory minimums discussed in Canada, again

Awhile back, we blogged about Canada's efforts to create mandatory minimum sentences for drug crimes.  It was a bad idea then, and it's still a bad idea now.  But for some silly reason, mandatory minimums keep coming up in the legislature there like dandelions on a poorly-treated lawn.

This short and sweet editorial says it all:

Canada should not repeat the mistakes of our southern neighbours. Going down this road will mean putting more people in jail and devoting more public money to prison budgets. It will also prevent judges and other justice system participants from diverting offenders with addiction and mental health issues to places where their problems are more likely to be addressed. Based on the American experience, it looks as if our reward for bearing these significant human and financial costs will be nothing at all.

Mandatory minimums are bad policy regardless of geography.  Yet again, Canada should kill any attempt to create more of them.

Mandatory Minimums for "Really Bad" Crimes

One of my pet peeves about sentencing reform:  hearing people argue that we need mandatory minimum sentences for "really bad" crimes.

It goes like this:  "Oh, but those sex offenders and child molesters -- we really need to throw the book at them and lock them up for a long time so they can't hurt our kids."

The problem:  mandatory minimums are still "one size fits all" punishments, and every sex crime -- and offender -- is unique.  Even if the mandatory minimum fits 99% of sex crime cases, there's still that 1% (and my guess is the number is bigger) in which the sentence doesn't make sense or, worse, is a miscarriage of justice.

A good example appears in this article from The Daily Citizen of Dalton, Georgia.  It covers everything from "Romeo and Juliet" cases to how convicted sex offenders must go on registries to jury bias against alleged sex offenders to how prosecutors can abuse their charging power to win guilty pleas.

For people who think mandatory minimums should be applied to "really bad" cases like sex offenses, I offer this article as Defense Exhibit A.  Whether a case is "really bad" and deserves a harsh sentence should be up to a judge, not a legislature -- even when the crime is a sex offense.

-- Stowe

GUEST COMMENTARY: FAMM Member Stephanie Nodd

Mother’s Day Behind Bars

Mother’s Day is a very difficult holiday for me. I have spent the past 21 Mother’s Days in federal prison for a nonviolent drug offense. Unless sentencing laws change, I will serve nearly five more years behind bars before I am reunited with my children. I want to share my story so that others do not make my mistake, but also so politicians in Washington will realize that our sentencing laws need to be fixed.

I grew up in Mobile, Alabama. I became pregnant in ninth grade and dropped out of school to care for my child. I was determined to be the best mother in the world. Unfortunately, as a single mother without a degree, money was always a problem. In 1988, just after I turned 20, I met a good-looking man named John who promised to help me financially. John had come to Alabama to sell crack cocaine, and needed someone who knew the area. I am sorry to say that I helped him for a little over a month in return for money that helped me provide for my family. After about six weeks, I ended things with him and moved myself and my kids up to Boston to start a new life.

I wasn’t in Boston long before I was indicted on drug charges in Alabama. I returned to take responsibility for my mistake. I prayed I would not have to serve any time because of my clean record and limited involvement but I could not have been more wrong. I was put in jail immediately. My lawyer told me that unless I cooperated against some drug dealers in Florida – people that I did not know – I would have to take a chance on a trial.

I could not give the prosecutors what they wanted because I did not know anyone in Florida. Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy. I was found guilty at trial and, even though I did not have a criminal record, sentenced to 30 years in federal prison. The year was 1990. I was just 23 years old.

Stephanie and family members

I have spent the last two decades behind bars. As difficult as it has been at times, I know it’s been harder on my children. Not only did they lose their mother when I went to prison but I had to split them up between my sisters and my mother who passed away in 2006. My oldest boys have had trouble with the law, which I know is common for children of prisoners. My heart breaks that I could not be there for them.

Mothers Day is an unhappy reminder of the mistake I made two decades ago and the price I am still paying to make up for it. It is a reminder of all the birthdays, holidays, graduations, and good times I have missed. I know I did something wrong. But I am also sure that I did not need 30 years in prison to learn my lesson and that my children did not need to grow up motherless.

There is a chance I could be home for Mother’s Day next year. Last year, Congress finally fixed the crack cocaine law that required even first-time, low-level drug offenders like me to serve decades in prison. The problem is that they did not make the change retroactive to apply to those of us already in prison whose cases illustrated why the law desperately needed to be changed. The U.S. Sentencing Commission soon will consider whether it should make its new crack guideline retroactive. I pray that both Congress and the Sentencing Commission will recognize that the only fair thing to do is to apply the new law to those of us in prison.

I am overdue for a second chance. While incarcerated. I have earned my GED, completed college courses, and earned professional licenses that will allow me to compete for a job when I finally am released. I will be much different than the young mother who kissed her children goodbye 21 years ago. This Mother’s Day, when you hug your kids close, please remember me and my family and all of the children who will celebrate this holiday alone because their mothers are serving long sentences for nonviolent drug offenses.

Stephanie Nodd is serving in the Coleman Federal Correctional Institution-Medium in Coleman, FL. Her projected release date is November 6, 2016.

Can Technology Help?

Can ankle bracelets and other technological aids save money while punishing low-level, non-violent offenders. Looks like Oklahoma is going to find out.

Coalition Calls for Revision of Costly Ineffective Criminal Justice Policies

This week an alliance of national and state groups, including FAMM, called on Congress to take a look at wasteful criminal justice spending and enact criminal justice reforms that will save billions while preserving public safety. In a letter sent to lawmakers earlier this week, the coalition urged Congress to reevaluate a corrections system that “wastes precious taxpayer dollars when it incarcerates non-violent offenders whose actions would be better addressed through alternatives that hold them accountable at less cost.”

The letter pointed to reforms already implemented by states and outlined specific federal legislative measures -- including expanding earned time credits and reinstituting and expanding the Federal First Offender Act -- that would reduce our enormous national budget deficit and maintain public safety. Read the complete list of proposals below:

1. Expand Use of Deferred Adjudication and Expungement of Criminal Records for Low-Level Offenders
 
Congress should expand the Federal First Offender Act, 18 U.S.C. § 3607, to allow judges to defer judgment and sentencing for certain low-level offenders, to avoid incarceration and a conviction record. Upon an individual’s successful completion of a term of probation, the charges would be dismissed and the record expunged.

2. Institute Review Process to Consider Modification of Sentence After a Period of Years
Congress should enact legislation to authorize a judicial panel or other judicial decision maker to hear and rule upon applications for modification of sentence from prisoners who have served a substantial number of years, similar to a proposal currently under consideration by the American Law Institute. Such a “second look” policy will reduce overcrowding and costs, while also creating additional incentives for inmates to engage in service, education and vocational activities.

3. Make Retroactive Congressional Reforms to Crack Cocaine Sentencing
Congress should pass legislation to extend the application of the Fair Sentencing Act of 2010 to people whose conduct was committed prior to enactment of the new law. If both the statute and guideline changes were made retroactive, U.S. Sentencing Commission estimates that as many as 24,000 people would be eligible to apply for and potentially receive relief over a 30-year period. Within the first year of retroactive implementation, as many as 7,000 people could be eligible for early release generating a cost savings of over $200 million in the first year alone.

4. Enhance Elderly Prisoner Early Release Programs
The average cost of housing elderly prisoners is between two and three times that of younger prisoners. At the same time, aging is correlated with diminishing risk of recidivism. Incarcerating elderly, nonviolent inmates who no longer pose a threat to the community wastes enormous sums of federal resources and these costs will continue to rise as the elderly prison population grows. Forty-one states have already embraced some version of a limited early release program for elderly inmates, and for example, Congress could reauthorize and expand the provision of the Second Chance Act that included a pilot program to allow for the early release of elderly prisoners.

5. Expand Time Credits for Good Behavior
The federal prison system’s method of calculating earned credit reduces a prisoner’s sentence to a maximum credit of 47 days per year – below the 54 days intended. This decision results in unnecessary increases in prison sentences at significant cost. By clarifying the statutory language, Congress could save an estimated $41 million in the first year alone. Congress should also quickly implement a Department of Justice proposal creating a new good time credit that can be earned for successful participation in recidivism-reducing programs, such as education or occupational programming.

6. Restore Proportionality to Drug Sentencing
The excessive mandatory minimum sentences associated with drug offenses have led to an over-representation of drug offenders in the federal criminal justice system, many of whom are low-level and nonviolent. Restoring federal judicial discretion in drug cases by eliminating mandatory minimum sentences would ensure that defendants receive punishments that are proportional to the offense they committed and do not ignore culpability.

There is a growing recognition that our criminal justice system – like other government systems – must be evidence-based, meet clear performance measures and withstand the scrutiny of fiscal, and cost-benefit analysis. Policy makers can replace unnecessary and excessive prison sentences with proven alternatives that hold people accountable while, at the same time, saving taxpayer dollars. We look forward to working with your office to advance these important principles.

Stupidity of Mandatory Minimums Not Confined to Federal Drug Crimes

On a May morning three years ago, Orville Wollard got a panicked call at work from his wife. The thug who had been beating up his young daughter was back in their house causing trouble. Wollard rushed to his house, where he found the boy on the porch and his daughter with a black eye. Wollard told the punk to leave, but instead, the boy attacked him, ripping out stitches from his recent surgery, and ran off with Wollard's daughter. The two returned several hours later and the boy began shoving Orville’s daughter around the Wollards’ home. She cried as Wollard's wife and eldest daughter screamed for him to do something.

Orville Wollard with his family

Wollard was frightened for his daughter's and his family's safety. He took his legally registered pistol and confronted the boy in the living room, again asking him to leave. The boy stopped assaulting Wollard's daughter and came into the living room. He punched a hole in the wall, smiled at Wollard, and began moving towards him. Wollard, who had firearms training as a former member of the auxiliary police force, shot a bullet into the wall next to the boyfriend to scare him. No one was hurt and the boy finally left. Wollard’s daughter was later admitted to a hospital after attempting suicide. Several days later, Wollard was arrested;  the abusive boy had called the police to report him for aggravated assault.

Orville Wollard did not think he did anything wrong. He certainly did not feel as though he had committed a crime by protecting his family. So he rejected a plea deal that would have placed him on probation for five years. Wollard took his case to court. Prosecutors charged Wollard with various crimes, including shooting into a dweliing (his own house), child abuse, and aggravated assault with a weapon. The jury rejected Wollard’s self-defense claim and found him guilty of possessing and discharging a firearm, triggering Florida’s mandatory minimum for aggravated assault with a weapon. The minimum term is 20 years.

At sentencing, the judge said, "This [sentence] is obviously excessive…if it weren’t for the mandatory minimum…I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event, but I think I am duty-bound to apply the law as it has been enacted by the legislature." For his part, Wollard told the court:

I’m amazed. I’m stunned. I have spent my life pursuing education [and] helped the community. [T]hen one day this person breaks into my house…he continues to do this, he assaults my daughter, he threatens me, I protect myself. [N]o one is injured in this whole thing and I’m going to prison and the drug dealer’s on the street. And again, with all respect to [the Court], I would expect this from the former Soviet Union…not the United States.

When one high-profile crime occurs, politicians trip over themselves to pass new laws that will purportedly stop such misdeeds from happening again. Our leaders constantly make policy by anecdote. Consider, for example, the harsh mandatory sentences applied to crack offenses in the immediate aftermath of Len Bias's death.

And, yet, when the politicians' ill-considered, one-size-fits-all responses create horrific injustices, they are ignored as "anecdotal" (no matter how many anecdotes there are) or dismissed as collateral damage. Just once, it would be nice to see an elected lawmaker use a terrible case to loosen the ratchet rather than tighten it.
 
The case of Orville Wollard presents a great opporunity. The moment is ripe for a member of the Florida legislature to say, "Any law that can produce this result must be changed."
 
Any takers?