Monday, October 31, 2011

NYT Editorial Supports Webb Commission Bill

Last week was a bit of a slow week in sentencing news, but a New York Times editorial from Saturday starts this week with a bang.  The Times comes out in support of Senator Jim Webb's (D-VA) bill to create a National Criminal Justice Commission to review our country's expensive and counterproductive addiction to prisons.  So far, the bill, S. 306, hasn't made it out of the U.S. Senate, but FAMM is working to change that.  Here's the full editorial:

Falling Crime, Teeming Prisons
Published: October 29, 2011, The New York Times

Senator Jim Webb, Democrat of Virginia, has a smart proposal to create a bipartisan commission to review the nation’s troubled criminal justice system and offer recommendations for reform. The National Criminal Justice Commission Act would be a valuable first step toward reducing crime as well as punishment. Unfortunately, Senate Republicans derailed the bill recently, with some falsely claiming that it would encroach on states’ rights.

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.

While crime has gone down notably, just 10 to 25 percent of the decline can be credited to the increase in imprisonment. The rest is from the waning of the crack epidemic, the aging of the baby boomers and other factors.

Even as the prison population has grown, less than half of the inmates are serving time for violent crimes. Far too often, prison has become a warehouse for people with drug or alcohol addiction. More than half of the population has some form of mental illness. Without proper addiction and psychiatric treatment, many end up back in prison soon after their release.

The incarceration rate has had a devastating effect on minority communities. African-Americans, who make up one-eighth of the population, now make up about 40 percent of those in prison. African-American men have a one-in-three chance of spending a year or more in prison. The trend affects whole communities, depressing earnings and increasing recidivism.

There are, however, ways to end this cycle of incarceration. This could be done by reducing sentences for nonviolent offenses, ending mandatory minimum sentences and cleaning up drug markets nationally. Reasonable senators should support the bipartisan commission that Senator Webb is calling for, which would cost only $5 million and could help bring about compelling reforms.

Monday, October 24, 2011

Crack Retroactivity Right Around the Corner

November 1, 2011 is a week away -- and that date will be historic, because it is when 12,000 federal crack cocaine offenders become eligible to seek reduced sentences based on new, retroactive changes to the federal sentencing guidelines.

This article from Georgia's Columbus Ledger-Enquirer tells the story and provides the background, in case you missed it (which was probably impossible, because FAMM played such a key role in the crack law reforms).  The article quotes FAMM President Julie Stewart several times, and it tells the story of one federal prisoner hoping for a reduced sentence after November 1.

No one is guaranteed a sentence reduction -- prisoners must file motions asking for one, and courts do not have to grant them -- but we are thrilled that the big day is only one week away.  Crack cocaine sentences based on the 100-to-1 disparity have always been unfair and created horrific racial disparities.  These retroactive guideline changes bring us one step closer to the fair and individualized sentencing system FAMM's been fighting for.

If you have a loved one who is a federal offender serving time for a crack cocaine offense and do not know if he or she might be eligible for a sentence reduction, talk to a lawyer or contact the federal public defenders in the district where your loved one was convicted.

Friday, October 21, 2011

Good and Mad Reading for the Weekend

This brainy report from New York University's Institute for Policy Integrity and this fire-up-the-crowd analysis of that report by The Atlantic qualify for our Good and Mad Reading of the Week for one simple reason:  I, for one, am sick to death of politicians thinking they have to be tough on crime.  I may want to stay safe, but I'm not made of money, and neither are the other millions of taxpayers who should be sick to death of paying for the wrong people to get the wrong punishments.

So, how do we convince lawmakers to get smart on crime?  The report, entitled Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy, says we have to prove it using numbers.  Want to downsize our overstuffed, uber-expensive prisons?  Want to get back to an incarceration rate that isn't, say, the highest in the entire world?  We have to prove that changing sentencing and prison policies will save money, reduce recidivism, and keep us safe.

Problem:  proving it costs money, too.  Research, data, and cost-benefit analyses don't just magically appear -- someone has to do the work, and unless it's a squad of calculator-toting nuns with economics degrees and time on their hands, that someone won't be doing it for free.

So, let's say we find some of those nuns, or we convince lawmakers to pay for the cost-benefit analysis we need.  Then, we should get the proof we need to get lawmakers to vote for all kinds of sentence-lowering and public-safety-increasing policies that boost rehabilitation while emptying prisons.  Right?

We'd still have to get legislators over the tough-on-crime hump.  As described in The Atlantic, that hump has been around for a long time, but enough is enough.  We just can't afford having our lawmakers camp out there anymore:

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime." It's been nearly twice that long since the so-called "silent majority" took back the streets. Violent crime is down. But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice. ...

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them. Of course, many criminals deserve to be there. But many do not. ...

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice. It's easier to be "tough on crime" when you can pay the price, right? But now we can't. And the collective poverty within our criminal justice systems isn't going to ease on its own. So bring in the economists! And let the stale, old law-and-order crowd step aside.

Have a good weekend, all.

-- Stowe

NCJCA Falls 3 Votes Short

Yesterday, we told you that the U.S. Senate was voting on whether to include a National Criminal Justice Commission Act (NCJCA) in the appropriations bill.  The Senate voted 57-43 in favor of including the NCJCA as part of the FY 2012 spending bill. Unfortunately, that is three votes short of the 60 votes we needed.

Thank you to all FAMM members who called and wrote their U.S. Senators and who shared our e-alerts with their friends and family to show support for the NCJCA.

This doesn't mean we're finished.  The NCJCA is still alive, and FAMM will continue to work to get it passed and signed into law.  Keep checking our website,, for updates on our progress!

Thursday, October 20, 2011

Big News: Commission up for Vote in Senate!

The Senate will vote at 12:00 p.m. EST TODAY on whether to include the National Criminal Justice Commission (which was proposed in S. 306 by Senator Jim Webb of Virginia) as part of the criminal justice spending (appropriations) bill. With more than 2.3 million behind bars, we can’t afford not to have this Commission.

FAMM believes that any study of the criminal justice system must include a review and repudiation of mandatory minimum sentences. That is why FAMM supports the creation of a National Criminal Justice Commission.

The National Criminal Justice Commission Act amendment is Amendment Number 750 to H.R. 2112.  The provision would create a National Criminal Justice Commission to review the criminal justice system and recommend consensus-based reform.  The proposed commission would review the criminal justice system, identify programs and policies that promote public safety, and urge reform of policies and practices that aren’t working.
FAMM will let you know how the vote goes at our website,, and here on the blog.

Wednesday, October 19, 2011

Boston Globe: No Mandatory Sentences for Nonviolent Drug Offenders

This balanced editorial from the Boston Globe calls on state lawmakers to focus the criminal justice system's scarce resources and prison bed space on violent offenders and eliminate -- you got it, eliminate! -- mandatory sentences for nonviolent drug offenders.  The full editorial is below, but FAMM's Massachusetts members should take a couple of minutes and write to their state senators, urging them to include mandatory minimum reforms in bills they are considering this session.  Click here to send that letter now!

October 19, 2011

Curb parole for violent crime, but rethink drug sentencing

THE STATE Senate is primed to pass legislation that would tighten parole eligibility for repeat violent offenders. But lawmakers need to be both tough and smart when considering a crime bill. And that will require an act of political courage - the elimination of the state’s mandatory minimum drug sentences for nonviolent offenders, thereby freeing up prison space for violent criminals.
The public is outraged when a paroled offender commits a dreadful crime, such as the December murder of Woburn police officer John Maguire. It’s not just an emotional response. More than a third of the most serious offenders paroled in Massachusetts over the past five years went back to prison for committing new crimes or violating the terms of their release.
Senate leaders wisely want to prohibit parole eligibility for criminals convicted of three violent felonies as well as those sentenced to more than one life term. Currently, convicted felons are eligible for parole after serving half of their sentences, with the exception of first degree murder. The bill would be even stronger if it established mandatory post-release supervision by the Parole Board for inmates who serve their full sentences.
The overarching goal, however, should be for lawmakers to create a stronger, fairer, and more economical criminal justice system. And that will require a balanced approach that cracks down on violent offenders while taking a fresh look at nonviolent drug offenders who languish for 10 or 15 years in prison at taxpayer expense. A place to start is with Governor Patrick’s sentencing reform bill that seeks to eliminate mandatory minimum sentences for drug possession and trafficking crimes except those involving firearms. Prisoners currently serving time for nonviolent drug crimes would, under the governor’s bill, be eligible for parole after serving half of their maximum terms.
The elimination of mandatory minimums does not amount to leniency. Judges would be free to give maximum prison terms to the most egregious offenders, and those who present the greatest risk to society. But it would ease the reflexive application of long sentences when judges do not believe they are warranted.
In the past, the Senate has supported work-release eligibility for drug criminals serving mandatory minimum sentences and other proposals that emphasize rehabilitation of nonviolent inmates. But the current Senate bill ignores the growing and costly problem of mandatory minimum sentences. It misses both the opportunity for inmates to recover their lives and for taxpayers to recover the roughly $7,500 difference between keeping an inmate in prison or supervising him on the outside.

Why are women the fastest-growing prison population?

That question is asked and answered in this piece available over at the San Francisco Chronicle.  The short answer:  mandatory minimum sentences and the War on Drugs.

In the last 25 years, women have been the fastest growing prison population in the United States and in California. Between the ‘70s and the 2000s, the number of female inmates in state prisons serving a sentence of over a year has grown by 757%.
Between 1985 and 2007, the number of women in prison increased by nearly double the rate of men.
The article features poignant and dramatic interviews with some of those involved in producing a new book on female prisoners, Inside This Place, Not of It:  Narratives from Women's Prisons.  One of the book's editors, Robin Levi, had these telling comments about her many visits to see women in prisons:
I think the most important thing to realize is that people in prison, men and women, are not a kind of "other" that need to terrify you. I think every time I leave the prison from visiting someone, I have this overwhelming sensation of, “There but for the grace of good fortune and economic security, go I.”
The people in prison are just people. They aren't terrifying. The majority of them are not dangerous.
FAMM agrees, thanks to thousands of phone calls, e-mails, and letters from normal, everyday women -- and men -- serving long, mandatory prison sentences.  Our Profiles of Injustice tell many stories of women caught up in drug offenses because of abuse, addiction, mental health issues, romantic attachments, economic hardship, or all of the above.  Try the stories of Iveth Vega, Darlene Eckles, Leslie Jaramillo, Tammi Bloom, Guadalupe Zuniga, and Dana Bowerman for starters.

Tuesday, October 18, 2011

Airing Tonight on CNBC

Tonight CNBC will air a new show, "Billions Behind Bars:  Inside America's Prison Industry," which looks sure to spark some good post-dinner conversation and debate.

Check out showtimes and a summary right here.

New York's Success Story

Reforming and abolishing mandatory minimum drug sentencing laws lowers prison populations, saves taxpayers money, helps offenders get the rehabilitation they need, and doesn't increase crime.

Just ask New York.

That's the gist of this thorough and thoroughly engaging article from the Poughkeepsie Journal that came out this Sunday.  It's full of good news for a state that launched the tough-on-crime mandatory minimum movement in the 1970s and is now seeing the fruits of scaling back those draconian laws, creating sensible alternatives to prison, and getting smart on crime:
Nearly 40 years after tough new drug laws led to an explosion in prison populations, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.
The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 16,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs. Overall, the prison population declined 22 percent. ...

Similarly, the rolls of city jails dropped 16 percent since 2000, while county lockups statewide had a 15 percent hike, statistics show.
The decline in drug convicts means more of the type of inmate for which penitentiaries were constructed: violent offenders.
Today, the No. 1 most serious crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000.
In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced. That's now down to about 3,000.

"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner. "Was prison the best alternative for drug abusers? Clearly it was not."
That's a message the whole country is starting to tune into, and the federal government shouldn't be the last to hop on this train.

Canadians Should Argue Against Mandatory Minimums in the U.S.!

If all Canadians are even remotely as clear, convincing, and critical as this superb column by the Ottawa Citizen's Dan Gardner, we should start busing our northern neighbors down to Washington to argue against mandatory minimum sentences here in the States.  This is the best indictment of these irrational, misapplied laws that I've read in ages.

Here's the heart of this goody, but read the whole thing:

[Canada's recently-proposed mandatory minimum] bill includes a mandatory minimum sentence of six months for growing more than five and fewer than 201 marijuana plants with the intent of trafficking. There's also a mandatory minimum sentence of nine months for anyone who grows between one and 201 marijuana plants for the purposes of trafficking when certain factors are present - among them, that "the person used real property that belongs to a third party in committing the offence."

Justice minister Rob Nicholson says these changes don't target recreational pot smokers. No, the government is targeting "traffickers."

And we all know who traffickers are. They're bikers, gangsters, and depraved people who lurk outside schoolyards. Or so the minister suggests in every interview.

But what Nicholson never mentions is the legal definition of "trafficking." It includes selling marijuana for profit, as anyone would expect. But profit isn't essential to the definition. Simply giving marijuana to someone is "trafficking." So is offering to give them marijuana.

So anyone who passes a joint to a friend is a "trafficker." In fact, anyone who offers a joint to a friend is a "trafficker," even if the friend declines the offer. (There are a lot of "traffickers" in Canada. Some of them are members of Parliament.)

Now look at that first mandatory minimum sentence again: It means that anyone who grows six marijuana plants with the intention of sharing even a single joint with a friend will be guilty of an offence punishable with a mandatory minimum sentence of six months in jail.

And remember the phrase "real property that belongs to a third party"? That's what a rented apartment is. Imagine a university student living in a rented apartment with her boyfriend, suggests University of Toronto criminologist Tony Doob. She grows a single marijuana plant. She rolls a joint for her and her boyfriend. And just like that she's a "trafficker" subject to a mandatory minimum sentence of nine months in jail.

Are these outcomes simple, clear, and predictable? Hardly. They're shocking as hell. But mandatory minimums have a nasty tendency to do that.

Are these outcomes just fear-mongering? No, Gardner says. When legislators pass mandatory minimums, they are trusting prosecutors not to charge the university student and the other unlikely candidates mentioned above. Is that trust in prosecutors merited?

Take a look at some of our Profiles of Injustice, Canadians, and you tell us.

Here's Gardner's conclusion on the matter:

And notice how strange it is for the government to rely on the discretion of prosecutors to keep their mandatory minimum sentences from producing injustices. After all, the whole point of mandatory minimums is to do away with discretion. That's their appeal. "If you do X, the minimum punishment you will receive is Y." No ambiguity or uncertainty. It's all perfectly clear and predictable.

But mandatory minimums don't actually do away with discretion.

They merely transfer it from judges, by restricting their ability to choose the sentence, to prosecutors, who choose the charge. The system is still ambiguous, uncertain, and unpredictable. It's just ambiguous, uncertain, and unpredictable in a different way.

Let's hope Canada's lawmakers listen to Gardner's arguments.  In the U.S.'s experience, they are all too true.

-- Stowe

A New Epidemic: Mass Incarceration

Michelle Alexander provides thoughtful review and analysis of two new books on mass incarceration in this article in the Washington Post today.

The books are:

Here's the gist of A Plague of Prisons:
Ernest Drucker, an internationally recognized public health scholar, professor and physician, contends that mass incarceration ought to be understood as a contagious disease, an epidemic of gargantuan proportions. With voluminous data and meticulous analysis, he persuasively demonstrates in his provocative new book, “A Plague of Prisons,” that the unprecedented surge in incarceration in recent decades is a social catastrophe on the scale of the worst global epidemics, and that modes of analysis employed by epidemiologists to combat plagues and similar public health crises are remarkably useful when assessing the origins, harm and potential cures for what he calls our “plague of imprisonment.” ...
Drucker traces the moment of outbreak to the war on drugs. Beginning with the Rockefeller drug laws adopted in New York state in the 1970s, followed by President Ronald Reagan’s declaration of war in 1982, our nation set out to incarcerate millions of Americans for relatively minor crimes and drug offenses. Such arrests go a long way toward explaining how the “infection” has spread. Arrests and convictions for drug offenses, Drucker writes, “are the most important agent of transmission that creates new cases of incarceration.”
Whether the metaphor holds up or not, comparing mass incarceration to an outbreak of infectious disease is a new and interesting way to look at the problem.
Drucker’s argument leaves a nagging question unanswered, however: Why is this happening? ... William J. Stuntz thinks he has an answer. A Harvard Law professor who died earlier this year, Stuntz argues in “The Collapse of American Criminal Justice” that the stunning surge in imprisonment of poor people of color can be explained by two factors: a dramatic spike in crime in the 1950s and ’60s, coupled with profound changes in how our democracy is structured. Urban residents, he observes, once had far more control over police and prosecutors and could exert more influence in the jury box. When those who bear the costs of both crime and punishment exercise significant power over those who enforce the law, a more balanced and empathetic approach to crime is the predictable result.
An interesting theory -- in essence, the reason this sickness has spread is because we -- voters -- have let it.  We have stopped holding prosecutors, police, and legislators accountable in the courthouse and at the ballot box.  Legislators who pass tough sentencing laws stay in office partly because we let them.

Sounds like two interesting books to add to the reading list.

Monday, October 17, 2011

The Many Problems with Florida's Pill Laws

This excellent article from the Orlando Sentinel highlights the many, many problems with Florida's draconian mandatory minimum sentencing laws.

For starters, well, they're draconian.  Try 15 years for 30 pills.  A mere 4 grams of prescription drugs will garner a 3-year mandatory minimum term in prison.

Second, Florida's mandatory minimums are particularly good at scooping up addicts and others who need treatment, not prison.  Todd Hannigan, a FAMM member, is one example:
Todd Hannigan wanted to end his life. He ended up with a 15-year-prison sentence instead.
Two years ago, Hannigan, now 43, took a bottle of Natural Light and 31 of his mother's painkillers to Orlando's Cherry Tree Park, where a police officer caught him drinking the beer at a picnic table.

Because of the number of pills in his possession, Hannigan was arrested under Florida's prescription-drug-trafficking law — which carries a range of mandatory-minimum sentences depending on the weight of the narcotic.
In Hannigan's case, the total weight of the hydrocodone pills was just more than 22 grams — enough to give him a 15-year sentence, even though he wasn't actually selling or distributing the drug. ...
Third, the way the pills are weighed means that other non-controlled ingredients get counted toward the drug weight that triggers the mandatory sentence.  As in Hannigan's case:
... But in reality, court records show, only a minuscule amount of that was the narcotic hydrocodone: just 0.23 gram. The overwhelming majority of each pill was made up of acetaminophen and inactive ingredients.
Fourth, mandatory sentences steal judges' power to do what taxpayers are paying them to:  actually judge.  Here's the reaction of Orange County Circuit Judge Tim Shea to sentences like Hannigan's:
"The Legislature has, in its infinite wisdom, decided to transfer a significant amount, which was once judicial discretion, to the prosecutorial arm of this state. There's nothing I can do about that," Shea said. "Under this set of circumstances, this court does nothing more than perform an administerial function. I sign the papers. I'm on autopilot. So I would suggest you take it up with the Legislature."
One Florida legislator, at least, is taking up the issue:
Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who has tried to overhaul Florida's prescription-drug laws, said the prescription-drug epidemic and surge in arrests are having a "huge" impact on the system.
Bogdanoff sponsored legislation earlier this year that would have — among other things — removed mandatory-minimum sentences for prescription-drug trafficking. The legislation also would have defined the weight as that of the controlled substance, and not other substances in the pill makeup. That bill, introduced in February, died several months later and was withdrawn. She plans to renew those efforts.

"We're incarcerating drug addicts," Bogdanoff said. "We have to treat the drug addicts. In the long run, they don't belong in jail."
FAMM's Florida project is fighting to fix these irrational, problematic, faulty laws.  Floridians deserve better laws and better justice than this.

Wednesday, October 12, 2011

"This state locks too many people up for too long"

We haven't yet covered this weekend's excellent Associated Press article on Florida's mandatory sentences, which shares the story of a FAMM member and quotes our Florida Project Director, Greg Newburn.  The article gives a thorough and maddening explanation of how Florida's mandatory sentencing laws unjustly lock up low-level drug offenders for years:

Jeffrey Pitts is serving a five-year prison sentence for drug trafficking involving only eight to 27 Lortab tablets - prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers
His mother, nurse Paula Pitts, said he's doing time essentially for what she can give a patient during a 12-hour shift at the Panama City hospital where she works.
"Lortabs are what we use for lesser pain," she said. "Every time I medicate a patient I think of my son."
Don't think Pitts' sentence is an aberration - the mandatory minimum sentence for his conviction was three years. It's the kind of harsh punishment that has even many conservative Republicans, including former Gov. Jeb Bush, calling for changes in Florida's tough narcotics laws that are helping fill state prisons with nonviolent drug users and costing the state tens of millions of dollars annually. ...

Jeffrey Pitts' situation is a case study in the severity of Florida's drug laws, which were passed in reaction to a violent "cocaine war" that gripped South Florida in the 1970s, compared to other states.
The most Pitts would have faced for the same amount of Lortabs in Texas, considered somewhere in the middle among the states in severity of drug penalties, would have been a year in jail and $400 fine. As a first-time offender, though, he likely would have been diverted to a drug court and substance abuse treatment instead of jail, said Vikrant Reddy, policy advisory for the Right on Crime advocacy group based in Austin, Texas.
"That's a glaring example of why the minimum mandatories are so nefarious," Reddy said. "It's an extraordinary law in its breadth. It transcends left-right politics." ...
"A lot of people don't understand that a trafficker is not just Pablo Escobar bringing in a mountain of cocaine in a submarine down in Miami," said Greg Newburn, the organization's Gainesville-based Florida project director. "It's a drug user who has no intent to distribute, but just happens to possess too much of a given substance."

A brief but compelling editorial from The Gainesville Sun responded to the AP article and pinpointed Florida's main problem:  "This state locks too many people up for too long."  Here's the Sun's editorial response, in its entirety:

Editorial:  "The Wrong Reform"

If Gov. Rick Scott and Florida legislative leaders would get over their obsession with privatizing prisons, perhaps they might focus on the real cause of Florida's runaway corrections spending.

This state locks too many people up for too long.

A succession of “get tough on crime” mandatory minimum sentencing laws are primarily responsible for a state incarceration rate that is 26 percent higher than the national average.

An Associated Press report this weekend cited the case of a man serving a mandatory five-year prison sentence for possession of a handful of Lortab tablets, “prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers.”

“Florida's prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state's population increased just under three times,” the AP reported. “Florida also has done away with parole and requires inmates to serve a minimum of 85 percent of their sentences, which have kept inmates behind bars longer.”

Thus, Florida's corrections spending continues to escalate even as crime rates decline.

Citing data from “Right on Crime,” a prison reform group that advocates doing away with mandatory minimum sentences and relying more on drug courts and substance abuse treatment for offenders, the AP report continued, “If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion.”

Privatizing prisons simply injects a profit motive into what Alison DeFoor, vice chair of the Center for Smart Justice, in Tallahassee, already calls Florida's “prison-industrial complex.”

Real corrections reform would involve locking fewer people up, not creating new profit opportunities for the private sector at taxpayers' expense.

Tuesday, October 11, 2011

The Hardest Part of Being a Judge

I've heard many judges -- federal and state -- say it:  "The hardest part of being a judge is sentencing."

That sentiment is echoed in this lengthy but worthwhile article in The New York Times, providing in-depth coverage of some of the sentencing decisions of Judge Denny Chin, now a Second Circuit federal appeals court judge.  Judge Chin is best known, perhaps, for sentencing Bernie Madoff to 150 years in prison, but this article covers some less extraordinary offenses -- bank robbery, drug offenses, perjury.

Interestingly, the reporter follows up with several people who served sentences imposed by Judge Chin years ago, and asks them what they think of their punishments today.  The comments of a former lawyer who was convicted of a drug offense and got 87 months in federal prison particularly struck me:

Mr. [Pat V.] Stiso, the former lawyer, spoke at his mother’s home in New Rochelle, N.Y. He recalled being shocked when Judge Chin imposed the top of the recommended range. “My knees buckled,” he said.
But today, Mr. Stiso, 50, said he feels lucky. After serving more than five years in prison, he returned to the same house and loyal and loving family, he said. Although he lost his law license and thriving legal practice, he found work selling investments in life insurance policies and also consults with other white-collar defendants about what they will face in prison, he said.
“I have no problem with the sentence I received,” Mr. Stiso said. “The entire experience saved me.” He said it was not the amount of time that changed him; it was “having to go through” the process. 
This is another sentiment I hear echoed from many prisoners and former prisoners who contact FAMM.  One of the ways we have simplified sentencing is to say that it's the amount of time that punishes, deters, and leads to rehabilitation.  But many who have been through the process of being charged, convicted, and sentenced can vouch that the length of the sentence isn't what inspires them to change and stay crime-free.

The article shows Judge Chin aiming to be thoughtful, compassionate, and human -- he admits that emotions play a role in sentencing, believes in giving people second chances, but knows that not everyone will come out better in the end.  But when a mandatory minimum sentence applies, we remove the thoughtfulness, compassion, and humanity of judges from sentencing altogether.  When there is a mandatory minimum, we might as well put a robot up there in a black robe.

Sentencing is the hardest part of being a judge because it should be.  As voters and advocates, we must oppose every effort by legislators to control and oversimplify this complicated and thoroughly human process with mechanical mandatory sentencing laws.

-- Stowe

Friday, October 7, 2011

(Short) Good and Mad Reading for the (Long) Weekend

In the news lately, there's been a lot of stuff about how prosecutors abuse their power, and we've blogged about it here and here.  Mandatory minimum sentences play a large role in this abuse, because they're the sledgehammers prosecutors use to get people to plead guilty -- even if they're not.

Today, Dan K. Thomasson of the Scripps Howard News Service adds this brief but maddening article to the conversation about prosecutors run amok.  Here's an excerpt:
... prosecutors, most of whom are elected, use the threat of felonies with long prison terms to extract guilty pleas to lesser charges as a way of clearing cases without going to trial. Implicit in this for the victim is the specter of expensive, debilitating trials. What the accused miss is their day in court. As a result the number of trials in America's courts has dropped substantially, according to news reports.
Adoption of heavy mandatory sentences for some crimes has contributed considerably to the situation, making judges at all levels less and less relevant to a system that now more than ever rests in the hands of the prosecutors. Many of the prosecutors on the state and local levels view the position as a way to catapult themselves into higher political or lucrative private positions or to maintain holds on their current jobs, sometimes for decades. The infamous Duke University lacrosse case where team members were callously accused of sexual abuse of a dancer is the latter. The prosecutor, who was up for reelection, not only was forced to drop the charges but also lost his license to practice law and was briefly incarcerated.
Particularly disturbing is the tendency of many prosecutors to resist ever admitting that the person against whom they have won a conviction is in fact not guilty despite overwhelming evidence, including at times, DNA and recanting witnesses. There is a growing list of the wrongly convicted from death row to lesser sites who have been finally released over the long standing objections of prosecutors.
This series of articles raises important questions. Who do we trust to do justice in the United States? How much power they should have? Not all prosecutors abuse their power, but removing mandatory minimum sentences from a prosecutor's arsenal would take away one tempting means of abuse and would increase fairness in our system.

Thursday, October 6, 2011

Guess who else thinks there are too many federal drug laws?

From The Wall Street Journal:

WASHINGTON—Supreme Court Justice Antonin Scalia criticized the expansion of federal narcotics laws Wednesday, saying that the large number of drug cases has diluted the quality of the federal justice system.

"It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee at an unusual hearing that brought Justice Scalia and Justice Stephen Breyer to discuss with senators the judiciary's role in the constitutional system.

Justice Scalia said routine drug cases belong in state courts, which handle the vast majority of trials for most criminal offenses. The Judiciary Committee chairman, Sen. Patrick Leahy (D., Vt.), himself a former state prosecutor, agreed.

Now, those who have followed Justice Scalia's career would know better than to assume that Justice Scalia thinks drug crimes should not be punished; he simply suggested that they should be prosecuted by the states. But think about how many fewer unjust sentences we would encounter if we did away with federal mandatory minimums for drug crimes?

- Ingersoll

Alaska Puts Prison Crisis in Perspective

According to 2010 U.S. Census Bureau data, Alaska is the largest state, the least densely populated, and has the second-lowest population (Wyoming has the lowest) in the country.  Yet, it has a prison overcrowding problem -- just like dozens of other states in the lower 48.

This interesting article about Alaska's conundrum puts some perspective on the scope of America's incarceration addiction:  if even our most sparsely-populated place has overincarceration issues, we're putting too many people in prison as a country.  And the costs have become unsustainable.  State legislators on both sides of the political aisle are looking for solutions, including lowering recidivism:

House and Senate panels that oversee the state corrections budget hosted a daylong "Smart Justice Summit" at the Legislative Information Office in Anchorage Monday to learn how other states tackled the problem and to examine what innovations might work in Alaska.
"There are escalating costs that are of significant concern," said Sen. Johnny Ellis, a Democrat from Anchorage who chairs the corrections budget panel in the Senate.
This year's operating budget for the state Department of Corrections tops $288 million, up more than $110 million from what was being spent 10 years ago, according to the agency.
The state's new Goose Creek prison, which is supposed to open next July, cost about $250 million to build, and if state leaders don't flip the trend, it'll be full in just a couple of years.
Liberals and conservatives can unite over reforms that cut costs while offering more help for offenders, Ellis said. For example, he said he backs all the principles -- including accountability, lowering crime and rehabilitation -- espoused by an initiative called Right on Crime that includes high profile conservatives, Newt Gingrich, Jeb Bush and Ed Meese among them.
"It's a magic moment," Ellis said.
In a sense, crowded prisons are a problem of politicians' own making, the result of get-tough-on-crime laws that swept the country in the 1980s and 1990s. Alaska's Legislature passed its share. ...
Alaska is among eight states that experienced the biggest increase in prison populations between the end of 2008 and the start of 2010, according to a Pew Center on the States study cited by Carmen Gutierrez, a former defense lawyer who now is a deputy corrections commissioner. In Alaska, the prison population rose almost 4 percent. In many states, including California and Texas, the population dropped.
One in 36 Alaska adults was either in prison, jail or a halfway house or on probation or parole as of the end of 2007, another Pew Center report found. In 1982, the figure for Alaska was 1 in 90.  Alaska imprisons its residents at a much higher rate than the national average, Gutierrez told legislators.
Alaska, like so many states, is learning that prison can't be the default solution for crime.  Lengthy sentences and mandatory minimum sentences should be the first punishments to get a merciless review from the state's legislature.

Wednesday, October 5, 2011

Why Isn't Mr. Obama Exercising His Pardon Power?

That's the question posed by this superb editorial in the Washington Post, which is reprinted in full below:

A report from the Justice Department’s Office of Inspector General rightly takes the Obama administration to task for moving at a snail’s pace to answer the pleas of thousands of inmates seeking clemency or pardon.

The report notes that significant delays occur at virtually every step of the pardon process, which begins when a prisoner files a request with the Justice Department’s Office of the Pardon Attorney. DOJ officials often take months to report back to the pardon attorney with their views.

But the greatest share of the blame for the slow speed resides with the White House. Mr. Obama did not issue a single pardon for nearly the first two years of his presidency. Once Justice Department recommendations are forwarded to the White House, they languish an average of nine months before the president acts. The administration has recently made headway in reducing the backlog of cases — from 4,700 to 2,000 — but only because it denied thousands of petitions.

While more timely processing is needed, the real travesty involves the president’s miserly use of his pardon power. Pardon is often an inmate’s last best chance for justice. It is meant to correct wrongs left unaddressed by the courts or legislature, and should be used wisely but unsparingly to give a second chance to those who have been wrongly convicted or sentenced to disproportionately and unjustifiably long prison terms.

Mr. Obama has thus far extended mercy to a mere 17 individuals, most of whom committed relatively minor offenses decades ago. Take, for example, the case of Ronald Lee Foster, who was an 18-year-old Marine in 1963 when he was sentenced to one year of probation and a $20 fine for mutilating U.S. coins. It did not take an abundance of courage for Mr. Obama to pardon Mr. Foster. At this pace, Mr. Obama is likely to fall below the 189 pardons issued by George W. Bush — the modern president with the worst track record in this area.

Mr. Obama need only look to the thousands of Americans — many of them young, African American men — incarcerated for inexcusably lengthy periods because of draconian crack cocaine laws. Mr. Obama joined with a bipartisan coalition in Congress to reduce the penalties and make them more proportional to the crime. Some inmates may benefit from a U.S. Sentencing Commission decision this summer that allows judges to resentence inmates under new guidelines reflecting the penalty reductions. But many nonviolent offenders worthy of relief will be out of luck because they were sentenced to mandatory minimum prison terms. This is exactly the kind of situation that cries out for presidential intervention.

FAMM couldn't agree more. 

Today is National Call-in Day!

You've got all day today to put in a phone call that could move S. 306, the National Criminal Justice Commission Act, forward.  It's easy!  Here's how you do it:

Call U.S. Senate leadership:
  • U.S. Senate Majority Leader Harry Reid (D-NV), 202-224-3542
  • U.S. Senate Minority Leader Mitch McConnell (R-KY), 202-224-3135
Here's what to say:
  • I am calling to ask the senator to support immediate Senate passage of S. 306, the National Criminal Justice Commission Act.
  • The proposed commission would review the criminal justice system, identify programs and policies that promote public safety, and urge reform of policies and practices that aren't working.
  • One policy that needs review is mandatory minimum sentencing. Thousands of offenders receive lengthy mandatory terms. These sentences have filled prisons across the country well beyond capacity.
  •  The current incarceration rate comes at a high cost to taxpayers, families and communities.
  • Passage of S. 306 will lead to a more effective and just system. Please pass the bill.
  • Thank you!
That's it!  Two senators, two calls, a two-minute message, and you can help FAMM!  If you want to when you're done, email Jennifer Stitt, our Director of Federal Legislative Affairs, at to let her know how it went!  Easy!

You can learn more about S. 306 here.

Thanks in advance for your help!

Tuesday, October 4, 2011

November 1 is coming!

November 1, 2011 is the effective date of the new, retroactive crack cocaine guideline amendments to the federal sentencing guidelines.

For about 12,000 federal crack offenders nationwide, that could mean lots of good news.

Here's a Columbus Dispatch article describing how the retroactive amendments will give some federal crack offenders in Ohio a chance to request a sentence reduction and (if the judge grants the request) go home earlier:

More than 360 prison inmates who have gone through U.S. District Court in the Southern District of Ohio are receiving welcome news: Their prison terms might be shortened.
Beginning Nov. 1, an estimated 12,000 crack-cocaine offenders nationwide will be eligible for reduced sentences because of a retroactive change in federal sentencing guidelines.
Steven Nolder, federal public defender for the Southern District, said 369 prisoners have been identified as potential candidates for early release. He estimates that 200 to 250 actually will be eligible....
The commission found that about 52 percent of those eligible for sentence reductions are in 11 states, mostly in the South. The average reduction would be 37 months — from 13 years, eight months, to 10 years, seven months.
To refresh your memory about crack guideline changes, visit FAMM's page (full of helpful answers to FAQs) on the subject, or check out the U.S. Sentencing Commission's answers to FAQs.

If you or your loved one are a federal crack offender and think you might benefit, be sure to contact an attorney or the Federal Public Defender's Office in the district where the conviction occurred to ask for help filing a motion for a sentence reduction.

Monday, October 3, 2011

The Long-Lasting Effects of Mandatory Guidelines

Two articles in the Chicago Tribune this weekend highlight the need for judicial discretion and flexibility in federal sentencing law.

In 1987, Congress created the U.S. Sentencing Commission, which wrote the U.S. Sentencing Guidelines.  The guidelines apply in all federal cases, and until the Supreme Court decided U.S. v. Booker in 2005, they were mandatory.  After Booker, the guidelines are advisory -- which means that judges must still use and consider them, but can sentence outside of them when the facts of the case, the uniqueness of the offender, or justice demand it.  The Tribune explains the basics here.

But Booker isn't retroactive -- which means that there are thousands of federal offenders sentenced before 2005 still serving prison sentences handed out under mandatory guidelines.  And not all of those sentences were just or sensible.

One example:  Reynolds Wintersmith.

The Tribune details how Wintersmith, a first-time offender, got a life sentence under the then-mandatory guidelines in 1994.

Reynolds Wintersmith's first conviction was a costly one.
At 20 he was sent away for life after being convicted in a large-scale drug conspiracy.
It was a mandatory sentence that troubled even the judge, who questioned if lawmakers really intended this kind of outcome for someone so young. ...
Under the guidelines, Wintersmith's crimes were churned through a mathematical formula that spit out a sentence for the judge to impose. A number of factors jacked up his punishment. He was convicted of being part of a Gangster Disciples-run drug conspiracy in Rockford. The law also held him accountable for being a leader in the gang and pushing large quantities of cocaine and crack on the street. The gang also used weapons to protect its drug trade. It all added up to mandatory life, a sentence in which the judge had no say. ...

And the federal judge who handed down the sentence lamented at the time that his hands were tied by mandatory sentencing guidelines.

"Even though … other members (of the conspiracy) … seem to me to be more significantly involved, and there ought to be some latitude for the court to take that into consideration when you have a 17-year-old who gets involved … there is not another alternative available," U.S. District Judge Philip Reinhard said while sentencing Wintersmith. "It gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life, but in any event, it's there."

Wintersmith, like many federal prisoners, has worked hard to educate and improve himself during his 17 years in prison, and he has a group of supporters working against long odds to get him out of prison or get him a presidential commutation, which could let him return to society.

The stories highlight so much of what FAMM is working to promote and protect: judges should have the power to look an individual in the eye and give him a sentence that fits, that protects the public, that allows for rehabilitation, that takes all the facts and circumstances into account, and that isn't either too harsh or too lenient.  The goal of our justice system should be the kind of sentence Reynolds Wintersmith didn't get.