Thursday, September 29, 2011

New York Times on Mandatories: "Get Rid of Them"

The New York Times features a spectacular editorial on how mandatory minimums are making a mockery of the American criminal justice system.  Pass it on to friends and family.  Here it is, in its entirety:

An Invitation to Overreach
Sept. 28, 2011

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems. As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities. African-Americans recently made up 24 percent of the federal prison population but 33 percent of those given mandatory minimum sentences. Excluding immigration cases, Hispanics accounted for 30 percent of the prison population but almost 40 percent of such sentences.

These laws have helped fill prisons without increasing public safety. In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

Wednesday, September 28, 2011

More Crimes, Less Guilt?

In today's battles over the size (and cost) of the federal government, we shouldn't ignore the criminal justice system -- or what is considered a federal crime.  Over the years, the list of federal crimes has grown, even adding traditionally state-level crimes to the federal criminal code.  For example, street-corner drug selling -- which could be (and often is) ably handled by the local police -- can land a person in federal prison, often with a decade-long mandatory minimum sentence.


And there are entire new crops of federal crimes springing up from unexpected places:  thousands of federal regulations that cover everything from protecting the environment to running a small business.

The bad news:  you could break one of these regulations without even knowing it and face criminal charges and even federal prison time for it.  

This "gotta know" requirement is called mens rea in legalese, and it's the subject of this lengthy article from The Wall Street Journal.  It asks a simple question:  should a person know they're breaking a law before they can be sent to jail for it?  But if the answer is yes, is that fair when there are more federal laws than anyone could possibly know about?
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s. ...
Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.
Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.
A big part of this "overfederalization" problem is poorly-drafted laws from Congress.  Another part of the problem is that some of this stuff shouldn't be a federal crime in the first place.  And from a sentencing standpoint, the worst problem is when Congress slaps a mandatory minimum prison term on these offenses.

Federal prisons are overcrowded -- dangerously so.  That precious bed space costs taxpayers a fortune.  We should use it wisely, for offenses that are really crimes and are really federal (not state) crimes.  

Tuesday, September 27, 2011

Prison Reforms Needed -- in Virginia and Elsewhere

That's the message of this editorial from Newport News's Daily Press, and it prominently features Representative Bobby Scott (D-VA), a long-time champion of mandatory minimum sentencing reform.

Rep. Robert C. "Bobby" Scott (D-Newport News) has been championing prison reform for some time. A close look at the facts suggests he may be right. ...
[Virginia] now has more than 38,000 prisoners — one of every 89 adults. Following a national trend, Virginia's prison population has increased by 58 percent since 2000. ...
The U.S. has experienced an unfathomable 460 percent increase since 1980 — from 500,000 to 2.3 million inmates. That's an average of 43,266 additional prisoners per year since 2005.This explosion stems from two primary factors: excessive mandatory minimum sentences for drug-related crimes, which account for about 25 percent of all prison time, and overreaching legislation of jittery officials who are afraid to be tagged as "soft on crime." ...
Economics aside, proponents of minimum-mandatory sentences claim their tough, no-nonsense justice keeps us safe. They say the option is simple: more prisons or more crime.
We don't believe the choice is that stark.
When Texas prison rates were cut by eight percent, its crime rate decreased by six percent.
Why? The Lone Star state didn't just release inmates; it placed them under community supervision, in halfway houses and in treatment facilities. Moreover, it linked the funding of those programs to their ability to reduce the recidivism rate. It worked: the Texas crime rate in 2010 dropped to its lowest level since 1973.
Not to mention that crime nation-wide is down, even with a recession on.

The call for reform in Virginia prompts an interesting question:  could conservative states lead the way on this issue?  "Soft on crime" is the last descriptor most people would use for Texas or Virginia.  If they lead the way in becoming "smart on crime," will other states follow?  

Which states (conservative or otherwise) do you see changing their sentencing laws soon?

Monday, September 26, 2011

Plead Guilty -- Or Else

This excellent article from today's New York Times highlights one of the nastier sides of mandatory minimum sentencing laws:  their ability to scare people into giving up their constitutional rights and pleading guilty.

Of course, that's why prosecutors love them:  threaten a defendant with a long, mandatory sentence, and he'll probably cooperate, plead guilty, and skip a trial -- meaning less work for everyone, judge, jury, and prosecutor...and less justice, especially for those who might be innocent but don't want to roll the dice with a jury.

In short, your favorite courtroom TV drama is a work of fiction, because virtually everyone pleads guilty these days -- or else.  Mandatory sentencing laws and harsh guidelines are largely to blame.

The problem is so well-known it even has a name -- the "Trial Penalty" -- but because plea bargaining isn't made public or tracked, it's difficult to verify how widespread it has become, or to hold prosecutors accountable for abuses:

The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”
Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.
While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers.
That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.
“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”
But one result is obvious, he said: “We hardly have trials anymore.”
Plea bargaining isn't the only area where prosecutors have power that is both awe-inspiring and unchecked.  Mandatory minimums also give prosecutors control over sentencing.  
The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.
Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.
“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”
So, what kind of justice system is this?  If prosecutors can use mandatory minimums to stop people from going to trial and to stop judges from actually sentencing, what are we paying judges for?  

Friday, September 23, 2011

Good and Mad Reading for the Weekend

We all know how it works.  A horrific, tragic crime happens to small child.  It turns into a local/state/national media hoopla, a la the Casey Anthony trial.  Lawmakers stampede for the microphone, anxious to be the first to suggest creating a law to protect our kids from whatever "new" atrocity we've just been introduced to.  Legislators make tough-on-crime proposals, introduce legislation, and pass it, riding a wave of voter popularity to certain reelection.

And all of this with little or no thought, study, research, or debate on the need for a new law.  (Or a new, harsh mandatory minimum and its possible unintended consequences.)

And it is, indeed, Casey Anthony that is sparking a new tidal wave of "Caylee's Law" proposals across the country, as this article from USAToday describes.
The bills are the latest effort to establish laws in the wake of high-profile crimes involving a young victim. These laws, which are generally supported by child advocates, have prompted some critics to wonder whether it's appropriate to legislate in the heat of the moment.
"Is it a good way to draft law? No, it's not," says Frank Baumgartner, a professor of political science at the University of North Carolina. "The problem with this is, it's kind of a reflection of what you can call an overreaction or a disproportionate attention to a problem that's probably always been there." ...
In Illinois, state Rep. Dwight Kay, a Republican, says the Anthony case caught the nation's attention and it caught his attention. He says he doesn't know how often missing or dead children go unreported, but a law is needed in his state. "We saw it in Florida; we need to prevent it in Illinois."
When lawmakers don't know for sure that something is a problem, they're supposed to stop and find out before they pass a new law.  Here's hoping Illinois does.

With 2.3 million people in our prisons and thousands upon thousands of criminal laws on our books, we need to have a better approach to legislating than overreaction.  Is what happened in the Casey Anthony case sad and unacceptable?  Yes.  Does it require new laws?  Perhaps.  Is it too much to ask that lawmakers slow down and actually answer that question before they create a new law?  I hope not.

Thursday, September 22, 2011

Drug-Induced Deaths: What is the right punishment?

This lengthy and worthwhile article from the Belleville News-Democrat (Illinois) examines drug-induced deaths and the question of who should be punished for them -- and for how long.

Under federal law, selling drugs to someone who later dies from using them has a mandatory minimum of 20 years, and the sentence can go all the way up to life.  State sentences differ across the country, and Illinois doesn't appear to have a mandatory minimum for this kind of crime.  But with or without a mandatory minimum, prosecutors, judges, and jurors grow nervous about the punishment when the drug provider and the drug user/victim are friends or co-drug users.  The article offers a federal case as an example:

Andrea R. Fields, 29, of Belleville, was charged with killing David L. Roth, 56, because she injected him with heroin. A federal jury recently acquitted her.
According to police and prosecutors, Roth drove Fields and her boyfriend, Scott Weldon, to East St. Louis to get heroin. Weldon bought it. Fields split the drug into thirds and injected herself and the men.
Three months after Roth died, and hundreds of hours into the investigation, Fields and Weldon were indicted on the federal felony charge of distributing heroin resulting in a death.
Jurors were not convinced she distributed a controlled substance.
The jury asked the judge, "Does the injection of a controlled substance constitute 'distribution?'"
The judge said that was for them to decide. Fields was cleared within hours.
Field's public defender, Neal Connors, said he tried the case because the distribution part of the law is unclear.
Weldon pleaded guilty and admitted he purchased the drugs. He was sentenced Friday to eight years in prison, as requested by the U.S. Attorney's Office, instead of the mandatory minimum sentence of 20 years.
Jim Porter, of the U.S. Attorney's Office, stated in an email, "Our job is to not only prosecute, but to do justice. Given all the facts in this case, we believe that the sentence was a just one."
Perhaps so, but it also raises questions of what the best solution is for the offender, the community, and taxpayers. If both victim and defendant have drug abuse problems, shouldn't treatment or a drug court at least be an option?  At the federal level, it's not an option at all.  In cash-starved states, it may not be an option for much longer:
At the same time overdoses are rising, [Illinois] announced millions of dollars in cuts to substance treatment funding, costing some treatment centers 30 percent of their funds, said Sara Howe, chief executive officer of the Illinois Alcoholism and Drug Dependence Association, a lobbying group for treatment centers across the state.
The state cuts will probably be coupled with federal cuts this fall, Howe said. The cuts are being made even though it is much more cost-effective to treat addicts instead of putting them in prison, she said.
"It is really horribly concerning," she said.
A death from a drug transaction is a horrible, tragic outcome.  But even for this most serious of consequences, the punishments must be fair.  The sentences must fit offenders, and they should be cost-effective, protect the public, and rehabilitate offenders, too.

Mass News Roundup

Lots of news from Tuesday's hearing in front of the Judiciary Committee to consider mandatory  minimum reform legislation pending in Massachusetts:

  • A general summary from The Boston Globe (quoting Barb Dougan, FAMM's Massachusetts project director, on why reform is necessary:  "We treat low-level drug offenders and addicts the same as drug kingpins, sometimes even worse.")
  • This AP coverage at The Boston Globe gets into some of the budget issues and explains how the reforms would trim corrections costs for taxpayers
  • Couldn't get up this morning at 6:15 a.m. to hear Barb on WBUR? Listen to it here!
And follow all the updates on Massachusetts sentencing reform efforts here.

Wednesday, September 21, 2011

Straight from the Source

Want to know what the U.S. Sentencing Commission is going to be up to for the remainder of 2011 and most of 2012?  Get it straight from the source:  Chair Patti Saris covers it all over at the U.S. Courts' website.

Among other highlights, says Judge Saris,

The Commission is hard at work on three comprehensive reports to Congress. The first is a report on mandatory minimum penalties and their role in the federal sentencing system after the Supreme Court's decision in United States v. Booker. It will include, among other things, an assessment of the compatibility of mandatory minimum sentencing provisions with the guidelines system established by the Sentencing Reform Act of 1984 and of the impact of mandatory minimums on unwarranted sentencing disparity. The report also will address broader drug policy issues, including whether to expand the application of the safety valve provision at 18 U.S.C. § 3553(e) that exempts certain offenders from mandatory minimum sentences.
Obviously, FAMM supports expansion of the "safety valve," which we worked hard to create in 1994 and which is still one of the only ways out of receiving a mandatory minimum drug sentence in federal court.  We've also been supporting the Commission's efforts to put out a new report on mandatory minimum sentences.  The last (and only) report came out in 1991, and 20 years later, it's time for the Commission to take another hard look at these draconian sentences.

In the interview, Judge Saris also makes protecting and improving the advisory (not mandatory) sentencing guidelines a priority, goals FAMM shares:
My priority is to make the advisory guidelines system as effective as possible in a post-Booker world. Seventy-five percent of district court judges have expressed strong support for this advisory guideline system. While some have criticized this system, over 80 percent of sentences are within the guidelines or based on government sponsored departures and variances. Nonetheless, we must work with Congress, the Executive Branch, and the courts to fix the least-followed guidelines, especially those for child pornography. Economic fraud is another area that needs work.
Keep checking FAMM's website for updates on all the action happening at the U.S. Sentencing Commission in the coming months.

Tuesday, September 20, 2011

Voices for Reform: 30 Years of Mandatory Minimums in Massachusetts

That's the name of FAMM's new report on Massachusetts's mandatory sentencing laws, featuring everyone from a former Congressman and District Attorney to judges, to a FAMM family member impacted by the laws, to The Wire writer Dennis Lehane.  The report is out today!

But the bigger news is today's hearing before the Judiciary Committee.  Read the testimony from our Massachusetts project director, Barb Dougan, here, and check out Michelle Collette's story about her own journey through the mandatory sentencing system.  You can read FAMM's press release about the hearing here.

Barb sums it all up nicely:

Mandatory minimums have now been on the books in Massachusetts for 30 years. That sad milestone needs to be acknowledged. We have three decades of evidence that our current drug sentencing policies are a failure. Regardless of the number of people who are sent to prison on a mandatory sentence, there’s no corresponding decrease in either drug offenses or drug addiction. We hope that legislators will find this new report helpful.
Also, those in the Boston area should tune in tomorrow, Wednesday, Sept. 21, at 6:15 a.m. EST to hear Barb talk about possible sentencing reforms on NPR's Morning Edition on WBUR.

Many thanks to the FAMM members who came to the hearing and supported Barb, Michelle, and justice today!

Monday, September 19, 2011

Massachusetts Monday!

It's going to be a big week in Massachusetts for FAMM and for sentencing reform.

On Tuesday, September 20, the state legislature’s Joint Judiciary Committee will hold a public hearing on sentencing reform bills, including Gov. Deval Patrick’s ground-breaking bill to repeal some mandatory minimum drug laws. FAMM’s Massachusetts project director, Barbara Dougan, will testify in support of the Governor’s bill and two other bills that were drafted by FAMM. She will be joined by Michelle Collette, a FAMM member and former state prisoner who served a mandatory minimum sentence, and Maryanne Frangules, head of the Massachusetts Organization for Addiction Recovery (MOAR).

That same day, FAMM will release a new report, “Voice for Reform: 30 Years of Mandatory Minimums in Massachusetts,” featuring essays from Massachusetts experts who have decades of experiences in criminal justice or addiction treatment:

· Andrea Cabral, Suffolk County Sheriff
· Matilde Castiel, doctor and addiction expert
· Bill Delahunt, former District Attorney and U.S. Congressman
· Maryanne Frangules, drug treatment advocate
· Nancy Gertner, former federal judge
· Linda Sullivan, mother of a state prisoner who is serving a mandatory minimum sentence
· Robert Ziemian, Massachusetts drug court judge
· Author Dennis Lehane, provided an introduction to the report.

You can read up on pending Massachusetts sentencing reform bills here, and learn all about the hearing and how you can get involved right here. Check back tomorrow to read our new report!

Friday, September 16, 2011

Good and Mad Reading for the Weekend

Today, TalkLeft has this good coverage of the Senate Appropriations Committee's editing of the proposed federal budget for the Department of Justice and Bureau of Prisons (BOP).  Some highlights that are sure to make some of us unhappy:
the Senate Appropriations Committee zapped the funding for prisoner reentry programs entirely, saying the money was needed for the Bureau of Prisons ... [but] gave BOP an increase, to $6.6 billion.
Here's what the Senate Committee approved in Obama's proposed 2012 budget for Commerce, Justice, Science Appropriations:
  • Bureau of Prisons: $6.6 billion for BOP Salaries and Expenses and to activate new prisons currently sitting empty ($307 million more than 2011.)
  • FBI: $7.8 billion for FBI salaries and expenses, national security and counterterrorism investigations, combating cyber threats, Weapons of Mass Destruction (WMD) capabilities, and violent crime reduction programs..
  • Drug Enforcement Administration (DEA): $2.2 billion for the DEA to target and dismantle criminal narcotics activities. This includes $10 million for the El Paso Intelligence Center (EPIC), which is DEA’s chief tactical intelligence sharing center on the Southwest border.
  • Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF): $1.1 billion for ATF Salaries and Expenses, to reduce violent crime and enforce Federal firearms and explosives laws.
  • U.S. Marshals Service: $1.1 billion for U.S. Marshals Service salaries and expenses, to apprehend dangerous fugitives, protect the Federal courts and the judiciary, and transport prisoners for course proceedings.
  • Office of the Federal Detention Trustee: $1.56 billion
  • Crime Victims Fund (CVF) – The bill permits the expenditure of $705 million from the CVF for grants to assist victims of crime. This is equal to the FY2011 enacted level.
This spending comes hot on the heels of new Bureau of Justice Statistics data showing that violent and property crime were dramatically down in 2010, even with the recession. That might not last, however, given that the current budget trades increases in spending on prisons for cuts in state and local law enforcement assistance, the FBI, and other programs that presumably make us safer. Click here to read an analysis of the BJS data that doesn't pin our increased safety on more prisons.

A total of $6.6 billion for the BOP may seem like peanuts in the world of trillion-dollar federal budgeting, but it's a big deal to the Senate Appropriations Committee, which often grumps and gripes about spending more money on prisons.  Back in 1982, pre-mandatory minimums, the federal prison budget was $541 million.

We've come a long way, taxpayers.  How much do we have to spend on federal prisons before someone finally says we've gone too far?

The only silver lining in the budget is the Committee’s decision to call out the BOP.  In its report language, the Commiittee calls on the BOP to use its
authorities through its operational discretion under 18 U.S.C section 3624 to, among other authorities, maximize the reentry time prisoners spend in residential reentry centers as well as home confinement; use its direct designation authority under 18 U.S.C. section 3621(b); expand the criteria for and use of compassionate release under 18 U.S.C. section 3582(c)(1)(A); and expand the use of the Residential Drug Abuse Program by removing barriers to full use of the program.
We'll have more coverage on federal justice budgeting next week.

Thursday, September 15, 2011

Congressional Excess isn't Limited to Spending $

Today, the Senate Judiciary Committee met to start marking up proposed additions to the Computer Fraud and Abuse Act.  Using computers to commit fraud is bad, right?  But are all varieties of "fraud" bad enough to be federal felonies, zapping people of civil rights for the rest of their lives unless they receive one of the measly number of pardons presidents seem to be grudgingly handing out only every 8 years?  And how should these new federal crimes be punished?

These questions aren't just hypothetical -- they are what Congress should be asking every time it decides to add a new offense to our already gigantic set of criminal laws:

1.  Should it be a crime?
Are we criminalizing something that is actually, really, truly bad and immoral conduct?
2.  Is a new federal criminal law needed?
Do we already have a law that covers this?  Is this something the states can handle on their own?
3.  If it should be a federal crime, what should the criminal-intent requirement be?
Does a person have to break this new law willingly or knowingly, knowing that they're committing a crime?
4.  If it should be a federal crime, what is the appropriate punishment?
Should it be a felony or a misdemeanor?  Is prison really necessary?
Law professor Orin Kerr hilariously shows over at the Wall Street Journal that these new federal cyber-fraud felonies Congress is considering have ridiculous implications.  See if you've committed any of these computer fraud "crimes":

- Checking your email account at work
- Updating your Facebook status at work
- Using your roommate's coffeemaker without his permission
- Lying about your age or weight on a dating website

Look out!  According to Kerr, the proposed "computer fraud and abuse" felonies Congress is toying with creating are poorly worded, vague, prosecutorial abuse stories waiting to happen.


Congress is also considering creating a new three-year mandatory minimum for hacking into a "critical infrastructure computer."  Sounds like cyber-terrorism, yes?  But could it also be applied to a wayward collegiate hacker-wanna-be who didn't know what the heck he was doing and ended up in the cyber mainframe of the local power plant?  Sure.

That's the thing about mandatory minimums:  they don't give a damn if the hacker is a terrorist or the underachieving son who's still living in your basement.


Congress has gotten infamous -- and rightly so -- for spending us into a black hole of debt.  It seems Congress also can't control itself when it comes to creating, expanding, and punishing crimes.  It's about time for Congress to stop and think before it pulls out its red pens and dives into our criminal code.


Real lives and billions of taxpayer dollars are depending on it.

Big Day for Nevada Justice in Taylor Case

Out in Nevada today, Michelle Taylor will get a chance to argue to the Nevada Supreme Court that her life sentence violates the ban on cruel and unusual punishments.  In case you've forgotten the details, here's the skinny:

Ms. Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex. Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime. Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years.
FAMM's been following the case closely and filed an amicus brief in support of Ms. Taylor's position, and you can read our press release about it here.

Here are our previous blog posts on this case, to get the full history and see some of the outrage and disbelief it has fostered:

Nevada's Shame: The Case of Michelle Taylor, Part I

SentenceSpeak: Nevada's Shame: The Case of Michelle Taylor, Part II

Now John Stossel Weighs in on Michelle Taylor Sentence

Regardless of what you think about her conduct, Michelle Taylor didn't get the individualized treatment that all people deserve when they are sentenced in an American court.  That's what FAMM is fighting for.  A one-size-fits-all punishment is, by definition, cruel and unusual punishment. As FAMM President Julie Stewart puts it:
In all cases, however, FAMM is committed to the bedrock principle of justice that individuals should be punished based on the severity of their crime as well as their personal culpability. In Ms. Taylor’s case, the life-for-lewdness law is written so broadly that she could have received a shorter sentence if she had murdered or kidnapped her victim. Hers was not the case lawmakers had in mind when they set the mandatory life penalty. But, once again, a mandatory minimum law took away the court’s discretion to impose a more reasonable sentence.
Check back at www.famm.org for updates on the Taylor case in the next few months.

Wednesday, September 14, 2011

Life Without Parole Getting Out of Control?

That's the question posed in this editorial from The New York Times, and their answer is yes, it is.

From 1992 to 2008, the number in prison for life without parole tripled from 12,453 to 41,095, even though violent crime declined sharply all over the country during that period. That increase is also much greater than the percentage rise in offenders serving life sentences. ...

In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting. Nationwide, the racial disparity in the penalty is stark. Blacks make up 56.4 percent of those serving life without parole, though they are 37.5 percent of prisoners in all state prisons.
Wow!  And that's just Georgia.  Any faithful FAMM follower knows that life without parole sentences abound for nonviolent crimes.  Under federal law, a third drug offense -- even a puny or nonviolent one -- can earn a person a one-way ticket into the federal prison system.  According to the federal Bureau of Prisons, there are over 6,000 lifers in the federal system.  In many states (California is only the most infamous), three strikes laws also exist, locking up thousands upon thousands for, well, forever.

There seems to be a perception that life without parole only goes to super-violent, serial killer types.  Not so, and it is one of the worst excesses of our criminal justice system.

Tuesday, September 13, 2011

Who's Smokin' What?

The goal of the annual National Survey on Drug Use and Health (NSDUH) is to answer that question, and the 2010 results are out now.

For newcomers to this interesting survey, it compiles responses from over 60,000 interviews with Americans to gauge how many people are using and/or abusing alcohol, tobacco, and prescription and non-prescription drugs.  For drug sentencing law nerds, it's a fun read on a rainy afternoon.

Here's a USA Today article about the latest survey's findings.  Good news:  methamphetamine use is down.  Not so good news:  marijuana use -- and use of other illicit drugs -- is up.

Wait a minute...aren't mandatory minimum sentences supposed to lower drug use?

Fluctuations in drug usage (and popularity) can be mysterious.  While some might like to say our tough meth sentencing laws are doing the trick, a director at the agency that conducts the NSDUH offers another explanation entirely:

Meanwhile, methamphetamine use, which raced across the USA for a decade, has declined sharply. The number of past-month users fell from 731,000 in 2006 to 353,000 in 2010.
Since methamphetamine emerged as a problem drug in 2001, states have outlawed or restricted the sale of ingredients used to concoct homemade meth, such as pseudoephedrine found in cold medicines such as Sudafed.
"We've seen better attention for law enforcement and policy changes. You can't get all the Sudafed you want anymore," said Peter Delany, director of the Center for Behavioral Health Statistics and Quality at SAMHSA.
Ahhh, so it's the fact that people can't waltz into a CVS and buy a crate of Sudafed anymore that explains it.

Note that he does not give the credit to mandatory sentencing laws for meth crimes.

Monday, September 12, 2011

Jim Webb's Last Crusade

That's the headline of this lengthy but worthwhile article over at Newsweek. Senator Jim Webb may be leaving the U.S. Senate in 2012, but he's trying to get the National Criminal Justice Commission Act (which FAMM supports) passed into law before he goes.  The article salutes a courageous leader who has made criminal justice reform a priority during his time in office -- and is starting to see others from both parties agree with him that change is needed.  Here's a snippet:

Webb, a law-and-order type who once derided affirmative action as “state-sponsored racism,” is an unlikely crusader for a cause typically championed by civil-rights activists and drug-war opponents. And yet, in 2009, the senator introduced legislation that would create the first comprehensive national review of crime policy in 45 years—legislation that he has been fighting, with plenty of “stress, insanity, and gnashing of teeth,” as one aide puts it, to pass, in vain, ever since. Now Webb, who recently announced that he will not seek a second term in 2012, thinks he may have finally found his moment. “The timing is right,” says Jeremy Travis, president of John Jay College of Criminal Justice. “We have millions of people in prison when states are struggling to balance their budgets, and, for the first time, a vibrant, nonideological middle ground on crime policy. This is a moral and fiscal problem now.”
We agree.  The time is right to pass the National Criminal Justice Commission Act.  Over at FAMM's website, you can contact your congressmen and ask them to support Senator Webb's bill.

Friday, September 9, 2011

Sharrif Floyd Did Not Take Money from Nevin Shapiro (But Florida Would Not Care)

It’s September, and in the South that means one thing: college football. One might not immediately associate college football with sentencing reform, but a recent issue shows how lawmakers can learn from the gridiron.

Yesterday the NCAA – the administrative body that governs college athletics - announced that Sharrif Floyd, a defensive tackle for the University of Florida, would have to serve a two-game suspension and repay $2,700 in benefits he received while in high school. The NCAA prohibits athletes from accepting benefits from anyone who is not a family member or legal guardian.

You may also have seen the story about several University of Miami players who were recently suspended for violating the same rule. According to an investigative report by Yahoo Sports, accused Ponzi-schemer and former Miami booster Nevin Shapiro gave dozens of Miami recruits cash, food, and alcohol, threw parties for them on his yacht and even paid for players to visit strip clubs and prostitutes during their visits to “The U.” Or maybe you remember last year’s story about Ohio State players trading memorabilia for tattoos, which led to the resignation of Ohio State Head Football Coach Jim Tressel.

While he technically violated the same NCAA rule as the Miami and Ohio State players, Sharrif Floyd’s experience was much different. In his response to the suspension, University of Florida Head Football Coach Will Muschamp highlighted the distinctions:
Sharrif is what is good about college athletics – his life is about survival, struggle, disappointment and adversity. I have recruited kids that did not know where they would sleep that night or what they would eat. Growing up, Sharrif was one these kids. Sharrif’s life is also about triumph, honesty, integrity, determination, perseverance and character. …

I want to make it clear that this issue is not about sports agents, Florida boosters or his recruitment to Florida or anywhere else. The issue is about his survival and the only reason the NCAA, the SEC and the University of Florida were aware of these issues is because Sharrif brought them to our attention last February. He came forward because, as I said before, he is honest and because of his integrity.
Florida’s Athletic Director, Jeremy Foley, added:
Sharrif grew up in an environment where he didn't have the things most of us take for granted -- food, shelter and clothing. In the absence of parents, there were kind people, in no way affiliated with the University of Florida, who were not boosters or sports agents, that helped him along the way to provide those things that he would otherwise not have had.
Unlike the Miami recruits who partied in South Beach, Floyd accepted about $2,700 in cash over several months from the “Student Athlete Mentoring Foundation,” a nonprofit charity group that provides “support to high school student-athletes in their academic and athletic endeavors.” However, Floyd did technically violate an NCAA rule, and under the rule, Floyd could have been suspended up to four games. But based on Floyd's financial hardship and other mitigating circumstances, the penalty was reduced to two.

On the reduced penalty, Kevin Lennon, the NCAA's vice president of academic and membership affairs, said, "We examine each situation carefully and consider all elements related to a student-athlete's individual circumstances and the violation. This gives us the flexibility to tailor the conditions of reinstatement that take into account all details and are in the best interest of the involved student-athlete."

While Muschamp, Foley and Florida fans agree that suspending Floyd for even two games was too severe (the suspension is subject to appeal), lawmakers should learn from how the NCAA responded to this case. Faced with violations of the same rule, the NCAA recognized that the individual circumstances of Floyd’s case merited a different penalty than that given to Miami and Ohio State players.

Imagine if the NCAA had a “mandatory minimum” four-game suspension for violations of the “no benefit” rule. While it might deter some of the activity that took place at Miami and Ohio State, the NCAA would not be able to factor in relevant information like a player’s background, the source of the illegal benefits, the uses to which money was put, etc. in determining a proper punishment. Players like Floyd would have to serve the same sentence as even the most notorious, intentional offenders.

Similarly, mandatory minimum sentences tie judges’ hands, providing one-size-fits-all punishments that ignore legitimate distinctions among defendants and result all too often in injustices. A better option? Repeal mandatory sentences and restore individualized justice; let the punishment fit the crime and the offender.

If the NCAA can get something right, surely lawmakers can, too.

-- Gregory Newburn, Florida Project Director, FAMM

Michigan: Prisons Closing, Crime Dropping

Seeing this article in the Detroit Free Press is super-satisfying to FAMM, which spent years working to repeal Michigan's draconian mandatory sentencing laws and win parole eligibility for the people who were sentenced under them.  Those reforms are paying off for the state -- prisons are closing, and crime isn't rising.

Yes, folks, it can be done.

Repealing mandatory minimums can lower prison populations and make room for more effective alternative punishments that actually help people get rehabilitated and become law-abiding citizens.  Because every word is worth reading, here it is in its entirety:

Jeff Gerritt: Prison policy changes are working to reduce number of inmates

Maybe you were too busy firing up the grill for the holiday weekend to notice, but Michigan's prison population dropped to the lowest level in 13 years last Friday.

The latest count -- 43,305 -- is 8,000 fewer than in March 2007, when the state locked up a record 51,554 people. Prison admissions are down, parole grants are up, and fewer people are returning to prison. Michigan has closed more than a dozen prisons and camps.

You probably don't feel any less safe, either -- and you shouldn't. Despite the ravings of prosecutors, crime has gone down significantly in recent years, even in the worst economy since the Great Depression.

Truth be told, no one really knows why. Crime rates have bounced around for the last 40 years, while the state's prison population rose steadily from 9,000 to more than 50,000.

Crime rates don't drive prison populations -- public policy does. And for almost four decades, an orgy of failed tough-on-crime measures like mandatory minimum drug sentences has driven incarceration rates here and around the country to insane levels.

Between 1980 and 1990, for example, Michigan's prison population more than doubled from 15,000 to 34,000, while the state's population increased less than 1%. The prison population rose another 40% to 47,700 by 2000. More people weren't necessarily going to prison, but they were staying a lot longer because of decisions made by politicians trying to sound tough instead of smart.

Besides enacting mandatory minimum sentences for drug offenses, the state eliminated good time for prisoners, passed truth-in-sentencing and felony firearms laws, replaced corrections professionals on the state Parole Board with political appointees, and used habitual offender laws more frequently. Michigan prisoners served, on average, 140% of their minimum sentences.

The result: massive increases in the state's prison population that have exacted enormous costs with little, if any, impact on crime rates. Spending nearly $2 billion a year, Corrections now devours 25% of the state's general fund and employs one in three state civil service workers. Michigan is one of only four states that spend more on prisons than higher education.

The news isn't all bad. Since 2005, the Michigan Prisoner Re-Entry Initiative has helped reduced recidivism by connecting parolees with jobs, housing and needed services. The number of parolees returning to prison for new crimes, for example, dropped 18% this year. You don't hear their stories in the media, but their efforts to stay on track in this economy are often nothing short of heroic.

Without changes in public policy, however, Michigan's prison population will probably remain relatively stable for the next few years, said Steve DeBor, administrator of the office of research and planning. Further decreases will take action by the governor and Legislature.

Following other states by restoring good time would be a good start. Other steps include establishing a commission to review sentencing guidelines, repealing Michigan's notorious juvenile lifer law, releasing dying and chronically sick inmates, and creating a temporary parole board to review the cases of hundreds of parolable lifers who now get a review only once every five years.

Legislators should also enact a presumptive parole statute, requiring the parole board to release offenders who have served their minimum sentence, completed recommended programs, maintained good conduct records and don't pose a significant threat to public safety.

Barbara Levine, executive director of the Citizens Alliance on Prisons and Public Spending, estimates those reforms would reduce the state's prison population to 34,000 -- where it stood in 1990 -- within a few years, saving more than $300 million a year.

Michigan cannot save this kind of money by spending less than the $2 a day it now spends on food for each inmate, or cutting the salaries of professional corrections officers. It can do it only by reducing the prison population and closing prisons. Each inmate costs an average of $35,000 a year to incarcerate.

Michigan's prison population has plummeted for the first time in decades while crime rates have fallen. There's a lesson there if politicians have the courage and common sense to see it. Gov. Rick Snyder and legislators must change the policies that still keep Michigan's prison population far higher than it needs to be.

Good and Mad Reading for the Weekend

For the weekend ahead, we recommend stopping by the Los Angeles Times, which has this excellent article on how California is trying to unpack its prisons (they call it "realignment") by passing the buck to county facilities -- without giving those facilities the bucks they need to pay for it.

Note the additional California prison-unpacking coverage in the sidebar:

It's all good stuff on the mechanics of solving an overcrowding crisis.  Of course, the best way to avert these mechanics entirely is not to pack the prisons in the first place.  Choosing smarter options than mandatory minimum sentencing laws would be a big help in avoiding overstuffed prisons.

Attica's 40th Anniversary

FORTY years ago today, more than 1,000 inmates at Attica Correctional Facility began a major civil and human rights protest — an uprising that is barely mentioned in textbooks but nevertheless was one of the most important rebellions in American history.
That's the opening salvo of this article, entitled "The Lingering Injustice of Attica," by Temple University history professor Heather Ann Thompson.  She tries to set the record straight on what caused the protest, how it was (violently) resolved, and what it means for America in our current era of mass incarceration.  Her conclusions:
The portrayal of [Attica] prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was [then-Governor Nelson A.] Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.
As America begins to rethink the wisdom of mass imprisonment, Attica reminds us that prisoners are in fact human beings who will struggle mightily when they are too long oppressed. It shows as well that we all suffer when the state overreacts to cries for reform.

Three Cheers for Two Elected Leaders

SentenceSpeak salutes two elected officials today for their promotion of justice and common sense in sentencing. One's a Republican, the other a Democrat.


OH Gov. John Kasich
First, Ohio Govenor John Kasich. Earlier this year, he signed a significant prison reform bill that, among other things, will reduce the flow of first-time, non-violent offenders into Ohio's prisons. The bill was a nice win for reformers, but what caught SentenceSpeak's attention was Kasich's heartfelt commitment to preventing mistakes from ruining people's lives. This week, Kasich scored again when he commuted the sentence of a mother who was sent to prison for sending her kids to a better, safer school outside the district in which she lived. Mind you, her sentence was only 10 days in prison, but Kasich understood that a felony charge was too much and would have likely barred her from achieving her goal of becoming a teacher.

In a statement announcing the commutation, Gov. Kasich said:

When I first heard about this situation, it seemed to me that the penalty was excessive for the offense. In addition, the penalty could exclude her from certain economic opportunities for the rest of her life. So, today I’ve reduced those felony convictions to what I think are the more appropriate, first degree misdemeanors. No one should interpret this as a pass—it’s a second chance.

Bully for Governor Kasich!

Second, SentenceSpeak salutes Vermont Senator Patrick Leahy for his continued vigilance in protecting the federal criminal code from new, unnecessary mandatory minimum sentencing laws. This week, Senator Leahy held a hearing in his capacity as chairman of the Senate Judiciary Committee to examine the Obama administration's new cybersecurity proposal. We have no quarrel with the bill's objectives, but object strenuously to the proposed creation of a new three-year mandatory minimum for certain hacking offenses. (FAMM President Julie Stewart submitted testimony in opposition to the new mandatory minimum for the hearing.)

U.S. Sen. Patrick Leahy
According to Washington Internet Daily's coverage of the hearing, "Leahy denounced mandatory minimum sentences for cybercrimes and said he would not include them in his own cybersecurity proposal. "I believe that strong penalties with mandatory minimums are something that can be abused." he said.

Good for you, Senator Leahy - and good for all of us that we have leaders who understand how destructive mandatory minimum and excessive sentencing laws can be.


Thursday, September 8, 2011

No, thanks, we're full

Obama administration:   How would you like another one-size-fits-all, mandatory minimum for the crime du jour?

FAMM:    No, thanks.

FAMM Joins Krieger Fight

In yesterday's post, we mentioned the outrageous case of Jennifer Krieger. What we forgot to mention is that FAMM filed an amicus brief urging the U.S. Supreme Court to hear her appeal.

Tuesday, September 6, 2011

Even Reasonable-Sounding Mandatory Minimums Don't Work

Some mandatory minimums are objectionable on their face. Think of the long, mandatory sentences that, until very recently, were imposed on those involved with very small amounts of crack cocaine. Other mandatory minimums, however, do not seem as noxious at first glance. Consider: Under current law, a person convicted of distributing an illicit drug (a.k.a. a schedule I or II controlled substance other than marijuana) ordinarily is subject to up to 20 years in prison. But “if death or serious bodily injury results from the use of such substance,” the distributer faces a mandatory minimum of 20 years. To be sure, 20 years is a long time, but we are talking about feeding others drugs that kill or seriously harm them. Surely this mandatory sentence will ensnare only the worst of the worst, right?

Wrong.


Meet Jennifer Krieger. Ms. Krieger is a single mother who suffers from severe and chronic pain as a result of several medical conditions, including spinal cord defects and a brain deformity known as Arnold-Chiari malformation.  Her doctor prescribed Krieger the pain medication fentanyl to manage the pain. 

One night Jennifer went out with a friend, Jennifer Curry, with whom she occasionally used drugs. Krieger gave Curry one of her pain medication patches before they went out for the evening. At midnight, Krieger left her friend at a bar. The next morning, Curry was found dead on her parent's couch. Traces of the Krieger's pain medication were found in her blood as well as many other drugs, including cocaine and oxycodone. There was nothing to suggest that the death was intentional.

Jennifer Krieger, who had no prior criminal record, was charged with and pled guilty to distribution of a controlled substance. The charged offense carried no mandatory minimum and a statutory maximum of 20 years. The presentencing report recommended a sentencing range of 10-16 months. The government objected to the recommendation and argued instead that Ms. Krieger should be sentenced to a minimum of 20 years because her provision of the pain medication path to her friend “resulted in” death.

The judge who sentenced Ms. Krieger stated that he believed she deserved a significant sentence, but not 20 years. He said, “Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide.”  The judge made it clear that he was sentencing Ms. Krieger to twenty years because he felt he had no choice or discretion, but specifically noted that he otherwise would have been inclined to issue a shorter sentence. To support his view, the judge pointed out that the average length of incarceration for defendants convicted for distributing the same drug Ms. Krieger gave her friend (where death did not result) was just seven months.
Ms. Krieger lost her appeal before the 7th Circuit Court of Appeals and is now waiting to hear whether the U.S. Supreme Court will hear her case. We hope so. Mandatory minimums do not work, even the reasonable sounding ones.

Friday, September 2, 2011

The War on Drugs: At Least it's Green

That could be one message you take away from this so-fun-I-simply-must-blog-about-it post on National Geographic's website, entitled "The Energy Drain of Recreational Drugs."  The gist:  drug production is bad for the environment.  The worst culprit:  marijuana.

Here's the tantalizing opener:

Drug use can lead to dangerous addiction, crime and other societal ills, but another big downside goes relatively unrecognized: Drugs drain resources. The production and trafficking of controlled substances consumes not just money, but energy, water, and forests as well. From cannabis, cocaine, and heroin to methamphetamine and the leafy drug khat, chewed for its mild buzz in parts of Africa and the Middle East, humans' pursuit of an unnatural high is anything but green.
Among the many descriptors one can use to label the War on Drugs, "green" (as in eco-friendly) certainly hasn't been thrown around much.  Might appealing to a person's eco-awareness level be a way to stop/prevent drug use?

Happy Friday and Happy Labor Day weekend!

-- Stowe

Thursday, September 1, 2011

Mom Gets 12 Years in Prison for $31 of Pot

You didn't read that wrong.  That's the story in this article (plus some video) from the Tulsa World, detailing one case in which justice seems to have gone far, far off the tracks:

Patricia M. Spottedcrow, 26, received a 12-year prison sentence last October for selling a total of $31 in marijuana to a police informant in December 2009 and January 2010. Her mother, Delita Starr, 51, was also charged.
In blind guilty pleas before a judge, Spottedcrow received prison time, and her mother received a 30-year suspended sentence. Neither had prior criminal convictions. ...

The judge, who is now retired, said in a previous interview that Spottedcrow's decade-long sentence was imposed because her four young children were in the home at the time of the drug buys. She said first-time offenders usually do not go to prison and alternatives including treatment are typically sought.

When Spottedcrow was booked into the jail after sentencing, some marijuana was found in a jacket she was wearing. She pleaded guilty to a drug possession charge and was given a two-year sentence to run concurrent with her other sentence.
The judge said she gave Starr a suspended sentence so she could care for Spottedcrow's children, who are now 10, 5, 3 and 2.
A couple of thoughts:

  • Should having kids in the home at the time of a drug deal justify a (much) harsher sentence?  Our hunch is that in-home drug dealing is pretty common, and kids are bound to see it.  If every sentence got enhanced for in-front-of-the-kids conduct, imagine the impact it would have on our already packed prisons.
  • Should judges be required to give at least one caregiver a suspended sentence/probation in family drug conspiracies?  Think of the savings to the state:  no prison expenses for incarcerating the caregiver, the kids don't go to foster care, the long-term benefits of kids staying with at least some family.  There are likely quite a few families engaged in drug trafficking -- should someone always get left behind to care for the kids of those who don't?  How would the judge pick the caregiver?  Should he be allowed to?
Thoughts (besides the obvious, which is that this sentence is absurd)?