Thursday, June 30, 2011

Crack Retroactivity Vote Happens Today!

At 1 p.m. EST today, the U.S. Sentencing Commission will vote on whether recent changes to federal crack sentencing guidelines should apply to people who are already in prison.  FAMM will be in attendance, with many of our members.  We've got all the info you need to follow the vote:

- We'll be tweeting live at Twitter
- Read up about the myths about crack retroactivity -- and get the facts!
- Get the full background on where the amendment came from
- Get answers to frequently asked questions about retroactivity.

We don't know how the Commission will vote, but check our website later today for a full report!

Reducing Unjust Cocaine Sentences

That's the title of a New York Times editorial running today, and it's so right on that we're running it in full.  Here it is:

The 1986 federal drug law that punished people caught with crack cocaine far more severely than those caught with powder cocaine was a disaster on many levels. It undermined faith in the justice system by discriminating against poor and mainly minority crack users and favoring affluent white users who preferred the chemically identical powdered form.

Congress tinkered at the margins of the law but failed to eliminate the sentencing disparity when it passed the Fair Sentencing Act of 2010. Now Republican lawmakers are trying to compound a longstanding injustice by opposing a proposal that would allow some people sentenced under the original law to apply for reductions in their prison terms.

The original law was grossly unjust. It mandated a minimum 10-year sentence for anyone caught with 50 grams of crack — about the weight of a candy bar. To get a comparable sentence, a person arrested for powdered cocaine would have to be caught with 5,000 grams — enough to fill a briefcase.

Instead of equalizing sentences when it revisited the issue in 2010, Congress lowered the penalties for some crack offenses and reduced the sentencing disparity between crack and powered cocaine from 100 to 1 to 18 to 1.

The United States Sentencing Commission, which sets federal guidelines, has issued temporary sentencing rules for people who were convicted of offenses after the new law took effect last fall. The commission is also empowered to determine if people convicted of trafficking under the original law should be eligible to apply for limited sentence reductions.

The commission has allowed retroactive reductions in other cases. If it votes to do so at a meeting scheduled for Thursday, about 12,000 federal inmates could become eligible to apply for an average reduction of 37 months.

Republican lawmakers, however, are trying to intimidate the commission into rejecting retroactivity. Senator Charles Grassley of Iowa, for example, has threatened to require the commission to pay the administrative costs of reducing sentences out of its budget. The commission should ignore this harassment and vote in favor of sentencing fairness.

Tuesday, June 28, 2011

Sentencing Commission Votes This Week!

On Thursday, June 30, the U.S. Sentencing Commission is expected to vote on whether this year's sentence-shortening changes to crack cocaine sentencing guidelines should be made retroactive. If made retroactive, up to 12,000 prisoners could benefit from the changes, which were created after Congress reduced the unfair and racially discriminatory 100-to-1 crack-powder ratio last year, in the Fair Sentencing Act.

FAMM supports full and unlimited retroactivity.  Crack sentences have always been unfair and have always undermined public trust in the justice system.  Now that those sentences are fairer, everyone should get the benefit.  Justice and fairness shouldn't depend on something as arbitrary as the date you committed your crime.  Additionally, giving sentence reductions to up to 12,000 people could save the federal government millions of taxpayer dollars and help ease overcrowding in federal prisons.

If you plan to attend the Commission's vote on Thursday, here are the details:

Location:
Thurgood Marshall Federal Judiciary Building
Ground floor
One Columbus Circle, N.E.
Washington, D.C. 20002

Time:
1:00 p.m. (although you should be there by 12:30 p.m. to ensure entrance)

If you plan to come to D.C. from out of town, please let FAMM know by contacting Courtney in our office at intern1@famm.org. While you are here we will be happy to help you set up appointments with your representative and senators.

Monday, June 27, 2011

The Whitey Bulger Story

You probably saw it on the news:  James "Whitey" Bulger, Boston’s former organized crime boss and the FBI’s “most wanted” chart topper, was arrested last week in California after 16 years on the lam.  If you live in the Boston area, it was the only thing on the news.  All Whitey, all the time.


Bulger has been linked to 19 murders of former associates, their girlfriends and those who were simply in the wrong place at the wrong time.  Some of the murders were clean and quick, while others have been described as slow and excruciating.  He operated out of South Boston and his empire included drug distribution.  During at least part of his reign of terror, he was an FBI informant, and it was an FBI agent who tipped him off in 1994 that he was about to be indicted.   He then fled the state.

During the 1990’s, I worked for a civil rights organization in Boston.  I was part of a team of lawyers that litigated a class action lawsuit against the Boston Housing Authority and the City of Boston for tolerating rampant racial violence and harassment against tenants of color in public housing.  We fought the common narrative of the day – the Big Lie, if you will – as much as the violence itself.  It was a two-part refrain.  First, Whitey kept South Boston safe.  Second, the desegregation of Boston’s public housing was the reason for drugs and crime in South Boston.  Black families brought it with them.

I happened to be cleaning out some old files last week when the story broke.  I found a 1994 flyer announcing a town meeting to address South Boston’s “public safety concerns” about “outsiders.”  According to press accounts, speakers at the meeting were much more direct.  The recurring claim was that “minority drug dealers” had taken over South Boston’s formerly all-white public housing developments. 

This narrative controlled the conversation for years.  It gave license to certain white residents to act on whatever it was that motivated them – racism, resentment over their own poverty, turf,  tribalism – at the expense of poor black and Latino tenants.  It allowed certain politicians to exploit poor white kids, their foot soldiers in the war against integration, for their own agendas.  But it wasn’t just South Boston residents who were willing to swallow the story.  Before the U.S. government joined our lawsuit, we often argued with federal officials who claimed that the violence against our clients – mainly women and children – was just competition among drug dealers.  Yet it was pretty obvious that any black kid who dared to elbow in on Whitey’s drug trade would have been dead in short order. 

Bulger was hardly keeping Southie safe.  Instead, he was poisoning his own people.  In 1999, a young South Boston activist named Michael McDonald published All Souls: A Family Story from Southie.  And he named names – of the 250 Southie youngsters he knew whose lives had been taken by drugs, violence or suicide, including four of his own brothers.  McDonald dared to break the silence and tell the truth.  South Boston could now openly seek the kind of drug treatment and recovery services that it so desperately needed and, to its credit, developed some outstanding programs.   

Within hours of Whitey Bulger’s arrest last week, the new narrative was already being crafted.  Reporters and pundits told us that the corruption was under the old FBI, not the new FBI.  They said it was the end of an era and most importantly, that justice would finally be done. 

I guess that depends on who you ask, on who gets to tell the story.

Enormous resources and attention will be focused on the prosecution and inevitable incarceration of one man.  And Bulger will deserve whatever he gets.  Yet millions of Americans will still languish in prison, out of the limelight.  Many will serve extraordinarily long sentences, far longer than some of Bulger’s cohorts who are now free men, for nonviolent drug crimes.  Far too many of them are African American and Latino. 

We can perpetuate the Big Lie about the men and women who fill our prisons – or we can be truth tellers.  We can jam up the gears in the circular reasoning that says all drug offenders must be dangerous felons who deserve lengthy sentences because we sent them to prison for a long time.  We can expose state and federal practices that champion arrests, not recovery from drug addiction.  We can challenge the common narrative that men of color make up such a high percentage of drug prisoners because they are the ones who use and sell drugs – demanding attention to the numerous studies showing otherwise.  We can refuse to collaborate with the crisis of mass incarceration by our silence. 

Make noise.  Seize the story.  Tell the truth.  

Barb Dougan
FAMM’s Massachusetts Project Director

Friday, June 24, 2011

Good and Mad Reading for the Weekend

An important new report from the Justice Policy Institute (JPI) gives sentencing reformers a more complete picture of what they're up against. JPI's new report shows how the private prison industry is aggressively combatting changes that will reduce demand for their product - prisons. Consider this little nugget (the report quotes from the most recent Corrections Corporation of America annual report):

The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them. Legislation has been proposed in numerous jurisdictions that could lower minimum sentences for some non-violent crimes and make more inmates eligible for early release based on good behavior. Also, sentencing alternatives under consideration could put some offenders on probation with electronic monitoring who would otherwise be incarcerated. Similarly, reductions in crime rates or resources dedicated to prevent and enforce crime could lead to reductions in arrests, convictions and sentences requiring incarceration at correctional facilities.

~ CORRECTIONS CORPORATION OF AMERICA 2010 ANNUAL REPORT

Thursday, June 23, 2011

New Bills in Congress!

There are some interesting new bills being introduced in Congress this week.

In the Senate, Senators Patrick Leahy (D-IL) and Rob Portman (R-OH) introduced S. 1231, the Second Chance Reauthorization Act of 2011.  As some of you might recall, back in 2008, Congress passed the Second Chance Act, which authorized the spending of millions of dollars on evidence-based reentry programs around the country.  That act also created a pilot program in federal prisons to allow elderly offenders over age 65 to be released to home confinement if they met a strict list of requirements.  Unfortunately, the pilot program and the Second Chance Act's funding authorization expired in 2010.  The Second Chance Reauthorization Act does what it says -- it

  • reauthorizes Congress to spend more money on reentry programs
  • allows federal prisons to restart the elderly offender program and run it till 2016 (and now prisoners can be 60 or older to get into the program), and
  • creates a way for prisoners to earn an extra 60 days of good time credit each year, if they complete certain kinds of recidivism-reducing programs. 
It's not a law yet, and there's no provision for retroactivity in it, either.  Learn more here.

The second bill is H.R. 2242, from Representative Bobby Scott (D-VA) and co-sponsored by Representatives Ron Paul (R-TX) and Roscoe Bartlett (R-MD).  This bill, the Fairness in Cocaine Sentencing Act of 2011, would take the current weight disparity between federal crack and powder cocaine crimes (18-to-1, courtesy of last year's Fair Sentencing Act) and eliminate it completely, creating a ratio of 1-to-1.  Again, it's only a bill -- it has to be passed by both houses of Congress and signed by the president before it can become a law -- and it's not retroactive.  Learn more here.

Keep tabs on lots of federal sentencing bills at FAMM's website.

Wednesday, June 22, 2011

Sentencing Nerd Red Alert!

It's been awhile since we've had a red alert, but this one's a goodie:  check out this new website, CrimeSolutions.gov.

A product of the Office of Justice Programs, the website "uses rigorous research to determine what works in criminal justice, juvenile justice, and crime victim services."  Feast your eyes on the Sentencing & Sanctions section, which lists and grades drug court and diversion programs across the country and provides a description of the program, the research done on it, its recidivism rates, and (heads up, deficit busters!) its costs.

It's like a Consumer Reports for alternatives to incarceration!

Enjoy, sentencing nerds, and please leave a comment on your thoughts and other juicy tidbits from what you find on the new site.

If it Fails in America, Try it in Britain

Sigh.  When will other countries learn from America's mistakes?

Take Britain. England and Wales have 85,000 people in prison. It sounds small to our American ears (we've got 2.3 million! Count 'em!), but it's become an unmanageable number for the British.

Their solution?

Keep mandatory minimum sentences instead of dumping them and, just for good measure, add a "two strikes and you're out" mandatory life sentence for "aggravated knife possession" (goodness gracious, for the price of a mandatory life sentence, that knife possession better include actually, intentionally, and maliciously killing someone!).

Apparently, Prime Minister David Cameron's government hasn't been paying close enough attention to California, which is under a federal court order to downsize because its prisons are so overcrowded they violate the Constitution. California can thank its infamous "three strikes" law for being a big part of that problem.

Our advice to Britain:  think twice before creating more mandatory minimum sentencing laws and taking even more discretion away from your judges.  The United States didn't think twice 25 years ago, and now we're paying over $60 billion a year for that lapse in judgment.  That's too high a price for a country to pay so that its lawmakers can sound tough on crime.

Monday, June 20, 2011

It All Started 25 Years Ago

On June 19, 1986, 25 years ago Sunday, University of Maryland basketball star Len Bias died of cocaine intoxication. Many believed the 6-foot 7, 220-pound small forward possessed a level of talent equal to that of Michael Jordan, and only two days earlier he'd been selected as the No. 2 overall pick in the NBA draft by the reigning champion Boston Celtics. ...

Hundreds of thousands of people would never have gone to jail if Len Bias had not died.
Those are the opening and closing lines of this powerful piece from Salon, which commemorates the beginning of mandatory minimum drug sentences and the death of Len Bias with an interview of FAMM board member Eric Sterling, who helped draft the laws and has been fighting for their repeal ever since.

If you think all of Congress's decisions are made with research, cool-headed expert advice, and logical rationale, read this article and interview from start to finish.  Mandatory minimum sentences for drugs -- like virtually all mandatory minimums -- were passed in the heat of the moment, in the throes of exaggerated fears, and in the hopes of appearing "tough on crime" to win votes.

Twenty-five years later, taxpayers are stuck with the results and paying through the nose for them.  The 25th anniversary of Len Bias's death is sad for many reasons -- many of which are sitting in prison cells today.

The Prosecutors on the Court

An interesting article from The Washington Post examines the decisions of Supreme Court Justices Paul Alito and Sonia Sotomayor -- both former prosecutors, and both vocal on criminal justice cases.  Does their past experience make the justices favor prosecutors, or defendants?

Alito, a former career lawyer at the Justice Department and New Jersey’s U.S. attorney from 1987 to 1990, is wary of petitions from the convicted complaining of defects and worried about lawyers exploiting loopholes to try to free the guilty. “Public safety” is his bottom line and a phrase often repeated in his writing. ...
Sotomayor was an assistant district attorney in New York for five years, and as a former district federal judge she is the only one of the justices who has presided over a trial or sentenced someone to prison.
She has been critical of courts that cut short the appellate process for some of those challenging their convictions and has rapped her colleagues for not agreeing to accept petitions from death row inmates who allege that their attorneys did an inadequate job of representing them. ...
Alito has always been a federal prosecutor, [Stanford University law professor Jeffrey] Fisher notes, “where resources run deep” and cases are more carefully constructed. He comes with the view that police work is done right and that defendants are often trying to simply “game” the system.
Sotomayor’s experience in the New York DA’s office was probably more chaotic — and closer to the kind of prosecutions the court reviews. “She has a little more of an inkling that sometimes the system malfunctions,” he said.
Of course, this article raises other important questions:  Why aren't there more Supreme Court justices (and federal judges) with a background in criminal defense?  Why aren't there more justices who have actually sentenced people to prison?  Should actual sentencing experience be preferred (or required) to become one of our highest judges in the land?

What do CA and OK have in common?

It may not be much, but both California and Oklahoma have problems with sending too many people to prison and keeping them there for too long.  And, according to this excellent editorial in The Oklahoman, they aren't alone:

California and Oklahoma aren't anomalies. Across the country, states are burdened by prison populations that have grown substantially the past three decades, largely as the result of policies that require inmates to serve mandatory minimum sentences for their crimes. ...

This past session, the Legislature approved and Gov. Mary Fallin signed a bill by House Speaker Kris Steele that expands the use of community sentencing programs and the electronic monitoring of low-risk inmates. It also limits the governor's role in the parole process for nonviolent offenders.
Further work in this area is needed. In particular the Legislature needs to consider changing some of its sentencing guidelines, so fewer nonviolent offenders get sent away for exceedingly long stretches. As others have said, being smart on crime isn't the same as being soft on crime.

Five Myths About Incarceration

That's the name of the latest installment in an an ongoing series by The Washington Post, and it's written by sentencing research gurus Marc Mauer and David Cole.

The five myths:

1. Crime has fallen because incarceration has risen.
2. The prison population is rising because more people are being sentenced to prison.
3. Helping prisoners rejoin society will substantially reduce the prison population.
4. There’s a link between race and crime.
5. Racial disparities in incarceration reflect police and judges’ racial prejudice.
The truth about these myths may surprise you.

Friday, June 17, 2011

Good and Mad Reading for the Weekend

We've blogged before about Peter Moskos and his argument that good, ole-fashioned flogging should be an alternative to incarceration.

This week, Moskos wrote this blunt and alternatively entertaining/maddening op-ed about his proposal.  A sampling of some of his bold, brash (sadly correct?) statements on America's addiction to prisons:
Today, the prison-industrial complex has become little more than a massive government-run make-work program that profits from human bondage. To oversimplify — just a bit — we pay poor, unemployed rural whites to guard poor, unemployed urban blacks. ...

Incarceration destroys families and jobs, exactly what people need to have in order to stay away from crime. Incarcerated criminals are more likely to reoffend than similar people given alternative sentences. To break the cycle of crime, people need help. And they would need less help if they were never incarcerated in the first place.
Flogging, as practiced in Singapore or Malaysia, is honest, cheap and, compared to prison, humane. Caning succeeds in part simply because it is not incarceration. Along with saving tens of billions of dollars a year, corporal punishment avoids all the hogwash about prisons somehow being good for the soul.
Some would argue that flogging isn’t harsh enough. While this moves beyond the facile belief that flogging is too cruel to consider, if flogging shouldn’t be offered because it’s too soft — if we need to keep people locked up precisely because overcrowded jails and prisons are so unbelievably horrific — then perhaps we need to question our humanity.
We've asked before, and we'll ask again:  what do you think is a harsher punishment, 10 years in prison or 10 lashes with a whip?  And since when did sentencing law become about picking the harshest option available?  Punishing is only one historically recognized purpose of sentencing law -- others are stopping future crime, keeping scary people away from the rest of us, and rehabilitating the offender.  Could flogging achieve any or all of those goals as well as providing adequate punishment?  Other than providing harsh punishment, does prison achieve any of those goals?

Thursday, June 16, 2011

Julie Stewart in July's Reason Magazine!

"Less Time, Less Crime" is the title of FAMM President Julie Stewart's piece in the July issue of Reason Magazine, and it's available online here.


The article documents a counterintuitive -- but nonetheless true -- idea:  the fewer people who go to prison, the less crime we have.  States like Texas have found that to be true, and a host of red and blue states alike are following suit, sending fewer people to prison, using wiser options like drug courts and community supervision.  It's mostly conservatives leading the charge -- and it's about time.  Here's a snippet, but read the whole thing:
Cost is not the sole factor in these changes. None of these states has decided to roll the dice with public safety. Rather, they are looking for ways to keep crime under control more efficiently. In fact, many of these debates demonstrate that policy makers are familiar with the last three decades of criminal justice research, which shows punishment is a more effective deterrent when it is swift and certain rather than severe, and that a vibrant parole system with effective re-entry programs is a better way to rehabilitate nonviolent offenders than making them languish in prison.
Unfortunately, but not surprisingly, Congress is behind the curve. The rising federal prison population has pushed federal facilities to 35 percent over capacity. Half of all prisoners are nonviolent drug offenders serving mandatory sentences. There is no parole, and early release for good behavior is limited. Perhaps the most outrageous aspect of the federal system, both morally and financially, is the unwillingness to let the frail and elderly go home to die.

Wednesday, June 15, 2011

Budgetpocalypse Now

If this grim article from today's New York Times had a soundtrack, it'd be something like the music that comes right before the special effects start in an end-of-the-world movie -- right before the volcano goes off, or the huge storm hits, or the tidal wave swallows Manhattan.

That dark music you hear?  It's heralding the dark days ahead for Medicaid, America's health care plan for many low-income or disabled people and children.

Faced with a deepening recession two years ago, the Obama administration injected billions of dollars into Medicaid, the nation’s low-income health program. The money runs out at the end of this month, and benefits are being cut for millions of people, even though unemployment has increased.
From New Jersey to California, state officials are bracing for the end to more than $90 billion in federal largess specifically designated for Medicaid. To hold down costs, states are cutting Medicaid payments to doctors and hospitals, limiting benefits for Medicaid recipients, reducing the scope of covered services, requiring beneficiaries to pay larger co-payments and expanding the use of managed care.
As a result, costs can be expected to rise in other parts of the health care system. ...
The cutback in federal Medicaid money has put pressure on states to cut the budget for other programs, including education and social services.
What does this have to do with sentencing reform?  In many states, the two biggest budget-eaters are (1) Medicaid and (2) corrections.  Legislators are scrambling to cut education, social services, and Medicaid, but many of these cuts would be avoidable if states made wiser and more fiscally responsible choices about who goes to prison and who decides the length of the sentence (hint:  it should be judges, not lawmakers).

The Times article mentions California as a state where Medicaid and many other programs are facing devastating cuts.  Compare that to this San Francisco Chronicle article documenting how California legislators are terrified to rethink sentencing policies and downsize prisons, out of fear of being labeled "soft on crime."

Schools, healthcare, education.  These will continue to get the knife as long as states refuse to reassess harsh sentences and the way they bleed taxpayers dry.

These are the budget realities we may be living with for some time.

How's that for apocalyptic?

-- Stowe

Tuesday, June 14, 2011

A sex offender is a sex offender is a sex offender ... or not

I am on a bit of a mission to debunk this notion that sex offenders can't be sympathetic.

It's easier than one might think, and  this gripping article from Reason Magazine makes most of my case for me.  Sex offenders may be the pariahs of the modern-day criminal justice system, but that label -- "sex offender" -- can be easily misapplied. Plus, it carries crazy mandatory minimum sentences and life-altering consequences, even for people who don't deserve them.

"Perverted Justice" is the name of the article, and it does an excellent job explaining the downsides of America's obsession with extremely harsh punishments and life-long consequences for so-called sex offenders.  Being labeled a sex offender is no small burden -- it means being put on a public registry (sometimes for life), being banned from living near children (including, sometimes, one's own), and a good deal of shame, ostracization, and humiliation.  It also means long mandatory sentences (again, sometimes for life).  While no one wants to see a child harmed or a person raped, the excessive punishments and harsh consequences don't necessarily mean justice is done -- or that we're safer.

Check out these draw-dropping stats on sex offender registries and what gets labeled a "sex offense":

Data from the Justice Department’s National Crime Victimization Survey indicate that more than 90 percent of sexually abused minors are assaulted by relatives or acquaintances—people they trust. (According to the same survey, strangers commit just one in four sexual assaults on adults. They commit only 14 percent of sexual assaults reported to police.)
Furthermore, according to a 1997 Justice Department study, nearly nine out of 10 people arrested for sex offenses have no prior convictions for this category of crime, so they would not show up in sex offender registries.
Meanwhile, the people on sex offender lists may pose little or no threat. A 2007 report by Human Rights Watch found that “at least 28 states require registration as a sex offender for someone convicted of having consensual sex with another teenager, if the offender was either age 17 or two years older than the other party.” Eleven states set no minimum age difference. ...
The Human Rights Watch report also found that at least five states required registration for offenses related to adult prostitution, at least 13 required registration for public urination, and at least 32 required registration for exposing one’s genitals in public. And from the information given in a registry, which typically is limited to a vague legal description of the offense, it is often hard to tell what someone did to end up there.

Now, while I'm certainly not excited about the idea of public genital displays, that seedy act is a far cry from a rape or child molestation. So is the case of a 19 year-old sleeping with his 15 year-old girlfriend.  Or the 10 year-old kid who touched his 5 year-old cousin's genitals and is registered as a sex offender even though he's not exactly sure what sex entails.  (True story -- read the article.)  Or the guy sitting at home looking at child pornography with no intention of acting on those fantasies.

Mandatory minimum sentences for child pornography offenses have sparked an uproar among federal judges for their ridiculous unintended consequences:
In a devastating 2008 critique of these sentencing policies, available on his office’s website, [assistant federal public defender Troy] Stabenow shows that Congress ratcheted the penalties for looking at child pornography upward through a series of ill-considered, undebated dictates driven by little more than public outrage and disgust. The upshot: Between 1997 and 2007, the number of people sent to federal prison for possessing, receiving, or distributing (but not producing) child pornography quintupled, from 238 to 1,170, while the average sentence more than quadrupled, from 21 to 91 months. Among the baffling results of these policies: A defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. The comparison, Stabenow writes, “demonstrates the absurdity of the system.”
We have to get beyond a scary label.  Not every "sex offender" deserves a harsh sentence or a lifetime of painful repercussions over one incident.  Sex offense cases are as complex as any drug conspiracy, and the defendants involved deserve the same individualized treatment that all offenders should receive at sentencing.

-- Stowe

Friday, June 10, 2011

No Mandatory Minimums for Self-Defense!

That's the message of this maddening op-ed over at The Washington Times, penned by FAMM's president, Julie Stewart.

It shares the story of Orville Wollard, a Florida father now serving a 20-year mandatory minimum for protecting his daughter from her abusive boyfriend.

Orville Wollard did not think he had committed a crime by protecting his family. He rejected a plea deal that would have given him probation and a felony record and instead took his case to court. Prosecutors charged Wollard with various crimes, including shooting into a dwelling (his own house), child abuse (because the boy was under 18) and aggravated assault with a weapon. A jury convicted Wollard of possessing and discharging a firearm, which triggered Florida’s mandatory minimum sentence for aggravated assault with a weapon. Wollard was sentenced to the mandatory prison term of 20 years without parole. 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.” 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 again, with all respect to [the court], I would expect this from the former Soviet Union, not the United States.”

Washington Post Calls for Retroactivity Without Limits

Attorney General Eric Holder recently supported making recent crack guideline changes retroactive -- but not for people with longer criminal records and a gun involved in their cases.  Almost no one else supported those limitations at the U.S. Sentencing Commission's hearing on June 1, including FAMM.

Today, The Washington Post agreed with us.

Today's editorial calls Holder's proposed limitations a "step back" in the 20-year effort to make crack sentences fairer and at least somewhat more rational.

The most important reason to set aside the Justice Department’s approach is fairness. The old crack laws were draconian — and that is true whether they were applied to a first-time offender or to someone who also was found to be in possession of a weapon.
Concerns over public safety can be — and have been — addressed through other means. The most serious criminals and those deemed violent “career” offenders are not among the 13,000 or so inmates eligible for a potential sentence reduction. Moreover, no sentence could be reduced until a judge evaluates an inmate’s record and signs off on the reduction. The judge would have the authority to reduce only the penalties associated with the crack violations; penalties for other offenses, including gun infractions, would remain intact.
Federal judges have a good record in making such judgment calls. Judges rejected some 36 percent of requests for reduced sentences after the commission tweaked the crack guidelines in 2007 and permitted retroactive reductions. The commission recently documented that those who were released after their sentences were shortened recorded recidivism rates that were slightly lower than typical. Those with longer records or gun convictions were not automatically excluded from consideration, and they shouldn’t be this time around, either.

Thursday, June 9, 2011

Oregonians Prefer Prisons to Teachers

That's the message of this superb editorial from The Oregonian, which bemoans how the state legislature has yet again refused to reform their long, harsh mandatory sentencing policies -- all the while putting school jobs on the chopping block.  It's good enough to reprint in its entirety:

Locking in Prison Spending

Once again, lawmakers are going to kick the can of Oregon prison policies down the road.

Across most of state government -- education, health care and services to the elderly -- lawmakers and Gov. John Kitzhaber are pressing for dramatic reforms, sweeping cost savings, painful layoffs. On Tuesday, yet another major Oregon school district, Salem-Keizer, announced 420 layoffs.

But not corrections. Negotiations have broken down even over a trio of small-bore bills to adjust probation policies, reclassify certain felonies and take other steps to save a modest $20 million. Instead, lawmakers are moving to implement voter-approved Measures 57 and 73 and lock up tens of millions of more dollars a biennium for corrections.

Of course, some lawmakers are posturing about cutting corrections spending right along with other state services. But most of that is disingenuous, ridiculous, or both -- lawmakers huffing and puffing about the cost of supplying inmates with soda pop or salt and pepper. The prisons shut off the soda in 2008 and 2009, and, we hate to break this to lawmakers, it will take more than emptying the salt shakers to slow one of the fastest-growing budgets in state government.

Two things drive Oregon prison costs -- sentencing policies and the salaries and benefits of corrections employees -- and lawmakers are afraid to confront either one.

If nothing is off-limits in education or health care, lawmakers act as though virtually everything about corrections policy -- excepting salt, soda and inmate treatment programs -- can't be touched. So there has been virtually no public discussion about further delaying the implementation of Measure 57, the measure establishing longer mandatory sentences for property crimes.

Moreover, there's been little debate in Salem about containing the costs of Measure 73, yet another seductive tough-on-crime measure sponsored by failed gubernatorial candidate Kevin Mannix and approved by voters. Measure 73 requires longer sentences for repeat sex offenders and repeat drunk drivers.

Mannix put a neat little clause in Measure 73 that requires the state to cover the costs of incarcerating the drunk drivers it targets. That helped win county support for the measure, but puts the state on the hook for $14 million in additional corrections spending in this and future biennia.

It also will warp the decision-making of county sheriffs dealing with crowded jails. Say a jail commander has to decide whether to release a repeat drunk driver, or someone who has committed domestic violence. Remember, the state's paying the costs of incarcerating the drunk driver. Who goes free? Is that the right policy?

Voters and legislators skip right past such questions. Here's another: Does it really make sense to cut funding for alcohol and drug treatment and cognitive programs proven to reduce repeat criminal behavior while spending more on longer sentences for property crimes already at a historic low across the state?

And one last question: Are you satisfied with the prevailing wisdom in this state that it is always easier, always better, to cut short a school year -- or lay off hundreds of teachers -- than it is rethink a prison sentence?

Wednesday, June 8, 2011

Well-Reason-ed Stuff on Prisons

Reason Magazine is rolling lots of logical, thoughtful stuff off their presses right now on incarceration and drug war issues:

  • "Prison Math" asks "What are the costs and benefits of leading the world in locking up human beings?"  It places the blame for prison growth squarely on mandatory minimum sentences and then notes that the benefits of incarceration are probably small.
  • "Wrongful Convictions" asks how many innocent people are in prison. It's a hard question to answer, but those who have tried have produced chilling numbers.
  • "Declare Defeat and Go Home" claims that the War on Drugs is an utter and total failure.
  • "Shrink the Prisons" says "conservatives are as wrong about prison overcrowding as liberals were about welfare reform."
  • "Locked Up, Locked Out" looks at the social costs of incarceration, including lower wages for ex-prisoners, financial troubles for families, and community mistrust of the justice system.
  • "The Ends Didn't Justify the Means" concludes that the real culprit behind our overincarceration is us -- voters who don't care about people in prison and let fear drive them to support overly harsh sentencing policies.
In the July issue, look for an essay from FAMM President Julie Stewart!

Tuesday, June 7, 2011

When "Is" Isn't

Well, you thought you knew what “is” is. But Justice Clarence Thomas and his fellow justices on the Supreme Court of the United States – who after all get the last word – say it ain’t so. “Is” means “was.” Really.

The outcome in McNeill v. United States, decided on June 6, turned on what version of a law a sentencing court should consult when deciding whether an especially harsh mandatory minimum applies. The mandatory minimum in question is the Armed Career Criminal Act (ACCA), which gives a 15-year sentence to anyone who possesses a gun and has three prior federal or state convictions for a crime of violence or a serious drug offense.

But which priors count, and which ones don’t? The ACCA statute defines a serious drug offense as one for which “a maximum term of imprisonment of ten years or more is prescribed by law.” The McNeill case turned on what the word “is” means.

Here’s why it matters. Let’s say Joe committed a drug crime in Texas in 1988. At the time, that crime had a maximum punishment of 10 years in prison. In 2009, however, Texas rewrote that crime to have a maximum punishment of only 1 year in prison. If Joe is being charged under ACCA today, is his 1988 drug conviction a serious drug offense, or not? If a serious drug crime requires a maximum sentence of 10 years or more, which maximum counts – the one that applied when Joe committed the crime (10 years), or the one that exists today (1 year)?

In a unanimous opinion delivered by Justice Thomas, the Supreme Court ruled that a prior “serious drug offense” counts and can be used to trigger the ACCA mandatory minimum if the crime’s maximum sentence was 10 years or more when the crime was committed, even if the crime’s current maximum sentence is below 10 years. Under McNeill, in the example given above, Joe’s 1988 drug crime would count as a prior conviction that could trigger the ACCA sentence.

Justice Thomas found that “the plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant’s previous drug offense at the time of his conviction for that offense.” Because, he wrote, the statute looks at the previous offenses, “the only way to answer this backward looking question is to consult the law that applied at the time of conviction.”

FAMM, along with NACDL, submitted a thoughtful amicus brief calling the government’s position “unsound as a textual matter and unworkable as a practical matter.” We argued that the seriousness of a prior offense, for purposes of increasing a current sentence, should be determined by the state’s current evaluation, not its past (and now repudiated) one.

You can read more about the case and the opinion and FAMM’s amicus brief here.

Louisiana Sentencing Reforms and their (Unlikely?) Supporter

This thoughtful article from Louisiana's The Advocate provides some jaw-dropping statistics on the Pelican State's prison population and budget and urges lawmakers to pass reforms and be smarter on crime:

Here are the facts. Our state has the largest prison population per capita in the nation. One in every 55 adults in Louisiana is behind bars. This year alone, Louisiana will spend more than $670 million on adult corrections.
Unfortunately, a lot of our corrections dollars are being spent to lock up nonviolent, low-risk offenders for relatively minor offenses — needlessly inflating Louisiana’s corrections budget and straining our ability to focus on higher-risk and violent offenders.
Offenders convicted of nonviolent offenses accounted for 82 percent of all prison admissions in Louisiana. ...

These low-level violations and certain nonviolent drug-related crimes can be effectively punished (and diminished over time) using other proven methods that are much less expensive than prison.
Blueprint Louisiana supports this “smart-on-crime” approach.
So, who is Blueprint Louisiana?  Well, it's a nonprofit organization governed by a board of trustees composed mostly of CEOs and corporate presidents, and its vision is to improve Louisiana and make it inhabited by "a people rightly proud to say, 'I live in Louisiana.'"  Sentencing reform is part of that vision:
Be “smart on crime” by revising outdated sentencing and parole guidelines:  $2 to $6 million in potential savings in FY12.  
Louisiana incarcerates nearly 40,000 adults, of which almost 30 percent are non-violent drug offenders who are not eligible for parole consideration. This cost the state nearly $670 million in the current fiscal year, of which the vast majority is State General Fund. In 2008, the legislature required the Louisiana Sentencing Commission to conduct a rigorous review of statutes and sentencing guidelines and make biannual recommendations for consistency and adequacy of prison terms. The re-invigorated Commission should be encouraged to produce specific recommendations for re-visiting and standardizing sentencing guidelines, especially for outdated laws on drug offenses—which the legislature and administration should act upon. These recommendations should include more parole eligibility and community-based options, which are less expensive and more effective in reducing recidivism when evidence-based practices are utilized.
In the short-term, a number of states are pursuing early medical parole, where vacant nursing home beds and wings are utilized for terminally ill and incapacitated prisoners at a lower cost than state institutions while still providing for public safety—a policy change that national groups are supporting across the U.S. Nearly 6,000 offenders in Louisiana are over the age of 50. This first step could provide immediate State General Fund savings for Fiscal Year 2012. The legislature should consider a change to the statutes to clarify eligibility criteria and to authorize a majority vote of the board for medical parole hearings, rather than a unanimous vote.
How exciting to see another group of business leaders taking a stand in favor of smarter, less expensive, more effective sentencing policies -- in a state like Louisiana, nonetheless!  State budget crises may be more prevalent than ever, but this is their silver lining -- not only bringing sentencing reforms, but also bringing new voices and allies into the fight.

FAMM Testimony before the USSC is Up Now!



Last week, FAMM President Julie Stewart and FAMM supporter Natasha Darrington testified before the U.S. Sentencing Commission, urging it to make recent crack cocaine guideline changes retroactive.  You can watch their stirring testimony above, or by visiting FAMM's YouTube Channel.

Monday, June 6, 2011

The Happy ... or not so happy ... Anniversary of the Drug War

This June marks the 40th anniversary of the United States' War on Drugs.  And for many, it's not a happy occasion at all.

FAMM has been around for 20 of those 40 years, and what we've seen the drug war do is lock up generations of low-level or nonviolent drug offenders, destroy families, wreak havoc on communities (especially ones of color), and produce little to no meaningful change in the way people buy, sell, use, or purchase drugs in this country.

At the sentencing level, the War on Drugs can be positively arbitrary in its selection of victims.  The girlfriend of a drug dealer can get as much (or more) time than her wayward boyfriend.  Mandatory sentences can send people who need treatment, education, or job training to prison for decades, where they may not receive any of those things.  And we wonder why recidivism rates remain unacceptably high, our prisons are packed to bursting, and state budgets are crumbling under the weight of mass incarceration.

The Global Commission on Drug Policy just released this new report calling the War on Drugs a failure and offering recommendations for making drug enforcement policies less focused on incarceration and more focused on public health and treatment.

The costs of the drug war -- both in dollars and in human lives -- require us to adopt a different, more humane approach at sentencing.  Ending the use of mandatory minimums for drug crimes would be an excellent start.  In this war, judges are on the front lines, and they are best positioned to decide who needs treatment, a drug court, probation, or time in prison.

Possible Crack Retroactivity Still Making Ripples

Last week's hearing before the U.S. Sentencing Commission on whether proposed crack guideline changes should be made retroactive is still getting media coverage.

This editorial in the Pasadena Star-News supports making guidelines retroactive, to the benefit of over 12,000 federal prisoners.

The interest in crack cocaine reform isn't just domestic -- the Irish Times wrote this article covering the hearing and quoted FAMM President Julie Stewart.

This article from the San Francisco Chronicle does a nice job of showing the need for making the Fair Sentencing Act (FSA) itself -- and not just the altered crack sentencing guidelines -- retroactive.  It describes the case of Lyndon Baptist, who was convicted of a crack offense involving 14 grams of crack.  Pre-FSA, that amount of crack would earn him a 5-year mandatory minimum prison sentence.  Post-FSA, it wouldn't trigger a mandatory minimum at all.  There's a growing nationwide disagreement about whether the FSA applies to people like Baptist -- it certainly doesn't apply to people who had already been sentenced on the day the FSA became law, August 3, 2010.  (For the record, Baptist got the pre-FSA 5-year mandatory sentence.)

This is a problem that only Congress can fix.  Making crack guideline changes retroactive doesn't impact the mandatory minimum crack sentences people are already serving -- only Congress can make the FSA's changes to mandatory minimums retroactive, by passing a new law.

FAMM supports full retroactivity of the FSA, both in its changes to crack sentencing guidelines and in its changes to crack mandatory minimums.

Friday, June 3, 2011

Would US End the Drug War in Exchange for More Episodes of "The Wire"?

Attorney General Eric Holder revealed this week that he loves the now-off-the-air TV show "The Wire," which provided a gritty portrayal of the drug trade and police efforts against it in Baltimore, Maryland.  While announcing the Justice Department's Drug-Endangered Children's Task Force, Holder jokingly ordered the show's producers get the show back on the air or turn it into a movie.

The response from the show's producer, David Simon, was anything but funny, however.  According to Britain's The Telegraph,

In response to the plea, Simon said: "The Attorney-General's kind remarks are noted and appreciated."
In an email to The Times, he added: "I've spoken to Ed Burns and we are prepared to go to work on season six of The Wire if the Department of Justice is equally ready to reconsider and address its continuing prosecution of our misguided, destructive and dehumanising drug prohibition."
He added that that the US government's war on drugs was "nothing more or less than a war on our underclass, succeeding only in transforming our democracy into the jailingest nation on the planet."
As Stephen Colbert would say, David Simon gets the copyright on "jailingest."

FAMM doesn't work on drug legalization, but we do agree that the War on Drugs has only succeeded in locking up millions at enormous costs to taxpayers.  We've had 25 years of long mandatory prison sentences for drug crimes, with little benefit to show for it.  Twenty-five years is enough.

Isn't it time to loosen up our sentencing laws, choose smarter sentencing options, and let judges decide how to punish these crimes more effectively?

A Little More Crack News

Here's a few articles on this week's crack cocaine retroactivity hearing before the U.S. Sentencing Commission:

New Law on Crack Cocaine Could Apply to Old Cases (AP)

Early Release Proposed for Crack Cocaine Offenders (Los Angeles Times)

New Terms in Crack Debate (by Gary Fields, Wall Street Journal) 

Thursday, June 2, 2011

Tired of Crack Guideline News Yet?

We're not, and neither is the media.

Here's NPR's take on yesterday's crack retroactivity hearing.

FAMM President Julie Stewart appears in this New York Times article covering yesterday's hearing:

citing public safety concerns, Mr. Holder urged the commission to make an exception for inmates who had significant criminal histories or who had possessed or used a gun at the time of their drug offense. Because such inmates could be more dangerous, he argued, they should not be eligible to seek reduced sentences.
The administration’s position prompted some political criticism. The chairman of the House Judiciary Committee, Representative Lamar Smith, Republican of Texas, issued a statement on Wednesday accusing the administration of “supporting the release of dangerous drug dealers,” saying the proposal “shows that they are more concerned with well-being of criminals than with the safety of our communities.”
But Julie Stewart, the president of Families Against Mandatory Minimums, a group that advocates for judicial discretion in sentencing decisions, contended that the commission should make its crack cocaine guidelines retroactive without any exceptions because criminal histories and any gun possession were already factored into sentences under a separate part of the guidelines.
“I think it’s political,” Ms. Stewart said of the Obama administration’s stance. Interviewed by phone, she characterized the Justice Department’s position as “splitting the baby.”
For a nice critique of Representative Smith's statement against retroactivity, check out Doug Berman's blog post over at Sentencing Law and Policy.

An important release yesterday was this compilation of recidivism data on people who received the benefit of the U.S. Sentencing Commission's retroactive crack amendments in 2007.  The Commission tracked 848 crack offenders who were released early because of the retroactive amendment and compared them with 484 crack offenders who served their entire sentences.  Here are the highlights:

  • 30.4% of the retroactivity beneficiaries re-offended within two years of their release
  • 32.6% of crack offenders who served their entire sentences re-offended within two years of release.

In short, there was no statistically significant difference between the two groups -- but these rates also aren't abnormally high, either.  Considering some states have recidivism rates of nearly 65%, these numbers are actually pretty darn good.

One of the fears that crops up when people talk about retroactivity is this idea of unleashing hordes of violent, re-offending criminals onto our streets.  The recidivism data from 2007 says those fears are overblown.  And virtually all of these crack offenders are coming home eventually.  We can send them home a little bit earlier, with the knowledge that the system gave them a fair shake, or we can hold them longer, deny them basic justice, and send them home with that bitter taste still in their mouths.  Which solution sounds more just and compassionate to you?

FAMM Supporter on NPR to Discuss Crack Changes!

Natasha Darrington, who provided this excellent testimony at yesterday's crack retroactivity hearing at the U.S. Sentencing Commission, will be appearing on NPR's Tell Me More at 11 a.m. EST!  Tune in and enjoy!  She'll be appearing with Michael Nachmanoff, an excellent federal public defender and long-time friend of FAMM.

No Vote on Crack Retroactivity ... Yet

Yesterday, the U.S. Sentencing Commission held its long-awaited and closely-followed hearing on whether it should make this year's crack cocaine sentencing guideline changes retroactive.

The Commission didn't vote on retroactivity yesterday, but it will probably vote later this summer.  The Commission heard testimony from prosecutors, defense attorneys, sentencing experts, professors, and law enforcement.  While we applaud Attorney General Eric Holder and the Department of Justice for supporting retroactivity, we could not agree with their unfortunate request that the Commission limit the amendment's benefit to crack offenders whose cases did not involve guns and who were not in criminal history categories 4, 5, or 6.  Fortunately, almost everyone else spoke in favor of retroactivity without any limitations.  Public safety is important, but categorically cutting off retroactivity to people with guns or higher criminal history categories will mean that many people don't get the fairer sentences Congress had in mind when it passed the Fair Sentencing Act.  FAMM urged the Commission to do what it did with its "crack minus two" amendment in 2007 and let judges decide in each case whether a person is too dangerous to get a sentence reduction.  You can read FAMM's press release on the hearing here.

About 40 FAMM members came from across the country to attend the hearing.  When Julie testified, she asked them to stand, as a reminder to the Commission of the real people who stand to benefit if crack guideline changes are retroactive.  It was a powerful moment.  FAMM supporter Natasha Darrington, who served over a decade in prison for a crack offense, was also on hand to testify.  Her moving testimony detailed how she benefited and was released when the Commission made its "crack minus two" guidelines retroactive in 2007.  She did a great job, moving many to tears.

Many thanks to all FAMM supporters who showed up, followed us on Twitter, wrote letters to the Commission, or signed our petition in favor of retroactivity.

This is what FAMM is all about:  showing the human face of sentencing.  The Commission's crack guideline changes may be complicated and highly technical, but they also have a very real, tangible impact on the lives of everyday people.  Retroactivity means 12,000 people could get sentence reductions averaging 37 months.  Those 37 months mean fewer missed holidays, funerals, graduations, birthdays, and more time to build a productive, meaningful life outside of prison.

The work's not done yet.  Keep checking our website for updates in the next weeks and months!