Good and Mad Reading for the Weekend

Did you know that you can be kept locked up -- indefinitely -- for crimes you haven't committed or been convicted of yet?

It's called "civil commitment," and it applies to sex offenders who are deemed dangerous, even if they haven't committed other sex crimes yet. The problems with the program (apart from the obvious constitutional and civil liberties ones) are numerous, and they are detailed in this excellent, Minority Report-evoking investigative piece from USA Today that we missed last week. It covers the shortcomings of the federal civil commitment program (and many states have their own similar programs,which are not detailed in the article).

Six years ago, the federal government set out to indefinitely detain some of the nation's most dangerous sex offenders, keeping them locked up even after their prison sentences had ended.
But despite years of effort, the government has so far won court approval for detaining just 15 men.

Far more often, men the U.S. Justice Department branded as "sexually dangerous" predators remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.

Dozens of others are still waiting for their day in court. They remain in a prison unit where authorities and former detainees said explicit drawings of children are commonplace, but where few of the men have received any treatment for the disorders that put them there.

Despite that, neither the Justice Department nor other watchdog agencies have offered any public assessment of how well the federal civil commitment law works.

To those who say, "Oh, they're just sex offenders -- they should be imprisoned for life, or shot and killed!", we offer this scary reminder:  this system applies to all of us.  It could be me, you, or one of our kids who ends up on the wrong side of the law.  And the list of sex offenses doesn't just include things like raping a child.  In many places it now includes sexting (teens sending nude photos of themselves on cell phones), mere possession (not production) of child pornography, or Romeo-and-Juliet cases (consensual sex when one of the parties is deemed too young, like 15, and the other is deemed too old, like 19).  It's easy to hear the frightening "sex offender" label and rush to judgment. As with all decisions about who goes to prison and for how long, what we need are individualized assessments that are based on reason and evidence, not just fear, from decision-makers who can be held accountable to the public.

Sentencing Nerd Red Alert!

Sentencing nerds, it's that time of year!  The U.S. Sentencing Commission has posted its 2011 Annual Report and Sourcebook of Federal Sentencing Statistics.  Grab some grub and lock yourself in your bedroom or office, so you can bury yourself in all this data goodness.

Ever wondered how many marijuana offenders were sentenced in the federal courts last year?  Check out Table 33.  (By the way, it was 6,961.)

Want to know how many people got less than the mandatory minimum sentence because of the "safety valve," a reform FAMM championed back in 1994?  Table 44 has the answer.  (It's 5,632 drug offenders -- 23% of all federal drug offenders sentenced last year.  Did you know that over 80,000 people have received less time in prison because of the safety valve since it's passage?  Not bad for one little reform, huh?)

Curious about how many federal drug offenders got mandatory minimum sentences last year?  It's 15,412 (see Table 43).

Not interested in drug offenses?  Table 3 breaks down all the offense types sentenced.  You know, most people hear "federal prison" and think it must be reserved for scary serial killers, but only 66 people were sentenced in federal courts for murder last year.  Most types of violent offenders end up in state prisons, not federal ones.

So, who's really getting sentenced in federal courts?  It might shock you:

• Nearly 35% (!!!) of all federal offenders got sentenced for immigration offenses
• Another 30% were sentenced for drug offenses
• 9.8% were sentenced for fraud offenses
• 9.2% were sentenced for gun offenses, and
• 2.2% were sentenced for child pornography offenses.

And did you know that nearly 87% of all federal offenders got prison-only sentences in 2011?  Only a measly 7.1% got probation. Message to Congress:  if you're worried that we're not sufficiently "tough on crime," ahem, don't be.  Prison is -- by any standard -- tough, and virtually everyone convicted in federal courts is getting it.

This data reveals many problems with our system. Are we sending the right kinds of offenders to federal courts?  Are we sending too many people to federal prisons?  (Yes, obviously. The Bureau of Prisons is at 35% over its capacity!)

What issues do you see in the numbers?

Reform in Georgia Moving Forward

A new sentencing reform bill is barreling through the state legislature in cash-strapped Georgia this week.

Read up on the reform effort here and here.

House Bill 1176, approved by a 51-0 vote, is intended to steer some low-level offenders to pretrial diversion programs such as drug and mental health courts and reserve the prison system for the state's most dangerous criminals.

The initiative is a top priority of Gov. Nathan Deal. The legislation must be approved once more by the House before it goes to the governor's desk for Deal's signature. House passage is a near certainty, as it initially passed the chamber with almost unanimous support.

"HB 1176 outlines much-needed reforms that will improve public safety, lower recidivism rates and bring real costs savings to Georgia taxpayers," Sen. Bill Hamrick, R-Carrollton, who handled the bill in the Senate, said. "Without action, taxpayers would have paid $264 million over the next five years to accommodate a rising prison population." ...

A key provision of HB 1176 would create new categories for drug possession crimes, with less severe penalties for those caught with small amounts of narcotics and the most severe penalties for those found with large quantities. It also would increase the felony thresholds for theft and shoplifting crimes.

Unfortunately, the bill does not eliminate any mandatory minimum sentences or create a "safety valve" exception to them.

And, alas, it appears that this reform won't pass without some doomsday predictions from -- you guessed it -- law enforcement:

In an email last week to Putnam County residents, Sheriff Howard Sills strongly criticized HB 1176.

"Every thief, burglar, check forger and hoodlum from Trenton to Tybee, from Bainbridge to Blue Ridge will be grinning from ear to ear if this passes," Sills wrote. "When it comes to being soft on crime, this legislation will nestle our miscreants in a down-filled feather bed of comfort they never remotely thought they could slumber in."

Sara Totonchi, director of the Southern Center for Human Rights in Atlanta, disagreed. The bill, she said, "implements a very modest slice" of the reforms recommended by a special council of judges, lawyers and other officials that held meetings and issued a report on the initiative.

"If Georgia is to realize the crucial cost-saving and public safety benefits that have been promised, future reforms must be far more bold and innovative than what we've seen in 2012," Totonchi said.

We agree with Totonchi's sentiments.

Some free advice for Georgia state legislators who want to see more sentencing reforms in the future:  as soon as the bill becomes law, start keeping track of the cost savings and recidivism rates of the people who get diverted from prison. That way, the next time a sentencing reform bill comes along, you can hopefully respond to people like Sheriff Sills with data -- hard evidence -- showing that the sky didn't fall, we weren't put in greater danger, and we all saved big bucks.

How Would Jesus Punish Drug Use?

That's the provocative title of this Huffington Post article from FAMM staff member (and Christian) Molly Gill. She explains her perspective on why Christians should support mandatory minimum sentencing reform -- and why the faith of Christian legislators should prevent them from creating more of these unjust laws.  

Here's a portion:

How would Jesus want us to punish?

Most Christians would start with Exodus 21's command that "an eye for an eye" is the right approach. Sadly, this verse has been cited to justify heartless vengeance in our criminal laws: "do the crime, do the time." The verse isn't a license to punish, but a limitation on punishment: the time must fit the crime and not be excessive. Giving either less or more punishment than the crime or the offender deserves is an injustice. The Proverbs repeatedly describe God's hatred of unfairly loaded measuring scales. Those scales include the scales of justice used in our courthouses. ...

Jesus turned the "eye for an eye" concept on its head in Matthew 5, when he said, "You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also." Anyone can hit back, but it takes real Christian love to show compassion to criminals -- in Jesus' words, to love our law-breaking neighbors as ourselves and to treat them as we would like to be treated. It would be turning the other cheek to give many nonviolent offenders the help they really need, like drug and mental health treatment that is supervised by accountability courts. These cost-effective programs keep offenders connected to families and communities and consistently produce stories of transformed lives. But mandatory minimums don't let judges choose these non-prison alternatives. ...

The Book of James also teaches that a true mark of our faith is caring for widows and orphans. Every time we lock up a breadwinner, we create a widow. Every time we incarcerate a parent, we create an orphan. The Christian organization Prison Fellowship does wonders in recruiting the faithful to care for prisoners and their families, but it also urges legislators to reform the laws that are at the root of the problem. Both prison ministry and sentencing reform advocacy are essential. Christians should support reforming mandatory sentencing laws that perpetuate an over-reliance on prisons and fail to deliver the compassion, services and opportunities for redemption that prisoners and their families need.

Up Close and Personal

FAMM staff member Andrea Strong knows all about the injustice of mandatory minimums -- from personal experience.  Her story appears in the Cincinnati Enquirer and is a good reminder of why we don't need any more mandatory minimum prison sentences, no matter how appealing they may sound to legislators in an election year.  A snippet:

My view is born of a painful personal experience. In 1991, my younger brother was arrested, tried, and convicted in federal court for his involvement in a conspiracy to sell marijuana. He introduced a marijuana buyer and a marijuana grower and was paid one time for making the connection. His codefendants continued buying and selling marijuana, and when they were arrested they turned in my brother, who was also held accountable for all the marijuana they sold.

My mother and I were devastated. We knew he was not a bad person, but rather someone who had made some bad choices for which he would have to pay. Do the crime and pay the time, we were raised to believe. But our grief turned to anger when my brother, a first-time marijuana offender, was ordered to serve the rest of his life in prison, thanks to a one-size-fits-all, federal mandatory minimum sentencing law.

I confess I did not know anything about how criminal sentencing laws worked. But after my brother was sentenced, I reached out to a group called Families Against Mandatory Minimums (FAMM). I soon learned that my family was one of thousands dealing with the negative consequences of criminal punishments dictated by politicians in Washington, D.C., rather than local courts. I also learned that mandatory minimum sentencing laws do not take into account whether someone is a small-time drug user or a major trafficker. The “minimum” sentences they establish are chosen out of thin air and reflect nothing but Congress’s sense of what sounds “tough.” They are also far from “minimum.” A life sentence for a first–time marijuana offense?!

Compared to most people sentenced to a mandatory minimum, my brother got lucky. He won his appeals and was released from prison after serving “only” 12½ years. Trust me when I say that when a parent, sibling, or child goes to jail, the whole family serves the sentence with him. My brother made a terrible mistake, but he did not need to spend the rest of his life in prison to recognize that. It would have been a terrible waste of taxpayers’ money to shelter, feed, and care for someone in prison who was not a threat to society and should have been working and paying taxes, which he does now.

Prosecutors With Too Much (Sentencing) Power

Today's Roll Call features an incisive op-ed from FAMM President Julie Stewart, describing how prosecutors have too much power at sentencing, because of mandatory minimum sentences. Julie reminds us of the important constitutional values that keep us safe from prosecutors run amuck:  separation of powers, checks and balances, and judges whose decisions are made publicly and can be appealed.  Here's the whole text:


The investigation into misconduct by the Justice Department lawyers who prosecuted the late Sen. Ted Stevens (R-Alaska) was recently made public. The investigators appointed by U.S. District Court Judge Emmet Sullivan concluded that the federal prosecutors involved in the case willfully and intentionally withheld exculpatory evidence from Stevens and his attorneys.

Even before the report’s release, Stevens’ former colleagues were pressing Attorney General Eric Holder to punish the individuals involved. This reaction is understandable, but it would be a shame if this episode does not remind Members of Congress that federal prosecutors, like all of us, are fallible. Their power should be limited and checked by the other branches to preserve individual liberty.

Look at our federal sentencing laws. Policymakers, the media and the public tend to judge the fairness of our sentencing laws vertically and horizontally; they want to know: 1) that the sentences being handed down are appropriate for the crime; and 2) that similar offenders who commit similar crimes are being treated, well, similarly. Yet, too often, they look only at the final stage of sentencing, when the federal judge announces the sentence. This myopia ignores all of the ways that prosecutors’ actions influence the outcome before that last step.

That prosecutors wield enormous power is not a new revelation. More than 70 years ago, then-Attorney General Robert Jackson, who would later serve on the Supreme Court and as a prosecutor at the Nuremberg Trials, told an assembly of U.S. attorneys that “the prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. ... The prosecutor can order arrests, present cases to the grand jury in secret session and, on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence.”

Jackson suffered no delusion about what the aggregation of power in one federal officeholder meant: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

Jackson did not live to see the explosion in mandatory minimum sentencing laws and the creation of the federal sentencing guidelines, which, until the Supreme Court’s decision in United States v. Booker, were mandatory.

Mandatory sentencing laws have dramatically increased the power of prosecutors relative to the other actors in the criminal justice system. They have done so by eliminating the ability of judges to provide a check on prosecutorial authority at the sentencing stage. Thus, prosecutors are no longer limited to making recommendations as to sentence, as Jackson observed. Prosecutors now have the power to specify the ultimate sentence through their initial charging decision.

One does not have to have blind faith in judges to prefer a criminal justice system that protects their discretion. When judges make mistakes, as they will necessarily do, their judgments can be appealed and overturned. The same is not true of prosecutors. Their most important decisions are unreviewable by any court and almost always shielded from public scrutiny.

The concentration of power in one federal actor’s hands should concern everyone who believes, along with our founders, that liberty is most secure when power is divided and subject to checks and balances. For even when that awesome power — to investigate, to indict, to prosecute — is not abused, as it clearly was in the case of Stevens, it must be checked.

Because mandatory sentencing laws eliminate any check on prosecutorial power, Members of Congress should oppose them.

Julie Stewart is president of Families Against Mandatory Minimums.

Smart Solutions, Even for Sensitive Crimes

A thoughtful article from The Tennesseean today takes a hard look at proposed mandatory minimum jail sentences for domestic violence offenses in that state.

Included in [Governor Bill] Haslam’s public safety plan unveiled earlier this year are mandatory minimum jail sentences for repeat offenders. But domestic violence experts worry that mandatory jail time without treatment isn’t enough.

“In many other states, batterers programs are mandated for varying lengths at least for the first offense,” said Ed Gondolf, retired research director for the Mid-Atlantic Addiction Research and Training Institute and sociology professor emeritus at Indiana University of Pennsylvania “Putting people in jail, in and of itself, is not a cure-all. It sounds like it’s a simplistic answer to a harder problem and one that appeals to the public — the law and order toughness — but isn’t necessarily practical in the long run.” ...

Mary Price is vice president and general counsel of Families Against Mandatory Minimums. The group espouses the idea that mandatory minimums wrest control and discretion from judges — who have the best grasp on the facts of a case — and paints all offenders with an identical brush. The group argues mandatory minimums don’t have the deterrent effect that politicians promise.

She points to a 2010 study published in the Journal of Criminal Law & Criminology by University of Maryland criminology professor Raymond Paternoster that concluded there was “no real evidence of a deterrent effect” when it came to the severity of the potential punishment.
“It’s a crime of violence, but it’s also a crime of passion,” she said of domestic violence. “And I just don’t know that saying, ‘You’re going to spend a certain amount of time in jail,’ in the heat of the moment, is going to work. What’s the evidence that this is going to make a difference?”

While domestic violence is certainly a sensitive and emotional public safety issue, we hope legislators in Tennessee will look at the evidence first and ask the tough questions about what works, rather than hastily choosing an ineffective (and expensive) solution that only makes us feel better.

Worst Mandatory Minimum on the Books?

There are lots of horrific mandatory minimum sentencing laws, but the Armed Career Criminal Act (ACCA) might just be in the running for one of the worst.  That statute requires a 15-year, no-parole federal prison sentence for anyone who possesses a gun and has three prior convictions for a "violent felony" or "serious drug offense."  At first blush, this might sound good -- lock up scary repeat offenders who shouldn't have guns, right?

Wrong.  This fantastic New York Times editorial explains the problem with this troublesome law, put into words by none other than conservative Supreme Court jurist Antonin Scalia:

Justice Antonin Scalia has called this federal statute unconstitutional because some of its language is so vague that it “permits, indeed invites, arbitrary enforcement.” In dissenting in a case last year, he wrote, “Many years of prison hinge on whether a crime falls within” the act.

You could drive a proverbial Mack truck through the definition of "violent felony" and "serious drug offense" in the federal code.  Prior drug offenses need not be that "serious" to qualify.  Prior "violent" felonies can include a list of crimes in which no one was actually hurt or threatened.  And, like all mandatory minimums, the 15-year sentence is tied to the charge, so prosecutors decide who to apply it to -- and who to give a pass to.  These charging decisions can't be reviewed or appealed -- and once they're made, the judge is stuck with the 15-year prison term.  There is no "safety valve" for ACCA offenders.

FAMM opposes ACCA sentences just as it does all mandatory minimum sentences.  Read a few examples of unjust ACCA sentences here and here.

In Georgia, A Safety Valve is the Way to Go

Georgia is in the throes of a potential sentencing revolution.

To get up to speed, read this editorial from The Atlanta Journal-Constitution, calling on the state's lawmakers to pass Georgia House Bill 1176,

a first-cut blueprint for criminal justice reform. It’s expected to arrive on the House floor this week after some tweaks. The General Assembly should pass this bill this session. Public safety is too important to do otherwise. ... One bonus of justice reform is that finding better ways to steer nonviolent criminals back onto the honest path will free up costly prison space for those most deserving of incarceration.  That alone makes it worthwhile to enact reform’s key tenets of:
● Revamping prison sentences to make the range of punishment better fit the crime.
● Redirecting some of the savings from reducing prison head counts toward bolstering community-based reform programs.

Former federal prosecutor Bob Barr joins in the call for reform with a superb op-ed calling on the state to create a so-called "safety valve" for its mandatory minimum sentencing laws:

A safety valve allows courts in certain circumstances to sentence a defendant to less prison time than would otherwise be required. This is important because, in some cases, a mandatory minimum prison sentence simply does not fit the crime or the offender.

A good example would be a law targeting major drug dealers that sweeps up first-time, low-level offenders. Some mandatory minimums not only over-punish minor offenders, but taxpayers as well — all of us who are forced to shoulder the burden of paying millions of dollars per year to shelter, feed and care for individuals who would be better off working.

To avoid these problems, several states and the federal government have passed sentencing safety valve laws. The federal provision, which only applies to low-level drug offenders, has been extraordinarily successful. Since 1995, more than 74,000 federal drug offenders facing mandatory minimums have received more appropriate sentences. While they still served prison time, the federal government (and we who fund it) have saved some $28,000 per prisoner for each year shaved off disproportionate sentences. ...

If lawmakers are serious about trying to cut criminal justice spending while maintaining public safety, they should add a safety valve provision to their reform bill.

Alas, Georgia's reform bill does not include a safety valve -- yet.  Here's hoping they can add one of these cost-saving, justice-producing reform tools to the legislation soon.

Voices Chiming In

An interesting day in sentencing news today, with lots of Washington voices chiming in on a variety of important reform issues.  Here are some selections for your reading pleasure:

• The Anchorage Daily News provides a nice summary of the alleged prosecutorial abuse that occurred in the case of Senator Ted Stevens, as well as Senator Lisa Murkowski's proposed legislation to prevent such abuses in the future.  
• Former Congressman Artur Davis writes a thought-provoking article about the drug war, calling for more flexibility in sentencing options -- including the ability to depart from mandatory minimum sentences or use smarter, cheaper alternatives like drug courts at the federal level.
• Assistant Attorney General Lanny Breuer offers some interesting feedback in this speech on both last year's crack cocaine sentencing reforms and federal sentencing guidelines for white collar/economic crimes.

Young, Black, and Male in America

That's the title of this engaging series of articles that address various aspects of a big problem:

The news for young black men is not good: they are disproportionately singled out for discipline in school, they are more likely to be stopped and frisked by New York City police officers, and according to Michelle Alexander in her book, “The New Jim Crow,” nearly one-third of black men are likely to spend time in prison at some point in their lives.

Would pulling back on draconian drug laws or legalizing marijuana be enough to fix this imbalance? What else needs to be done?

Commentators include representatives from Law Enforcement Against Prohibition and Justice Fellowship and authors Paul Butler and Peter Moskos.

Here's what else we know about young black men and the criminal justice system:  mandatory minimum sentences contribute to racial disparities (particularly in the way they are used at the charging phase).  Surely many people of color would benefit if these laws were scaled back or removed altogether, giving judges the freedom they need to tailor sentences to fit each individual and each offense.

Blackstonian Covers 3 Strikes in Massachusetts

Blackstonian has a full-length issue devoted to Massachusetts' consideration of a new three-strikes law.  Read perspectives and opinions (including one from FAMM's Massachusetts Project Director, Barb Dougan, on page 4) from a variety of voices, and learn this issue inside-out.

And if you're following the state reform effort, remember to keep checking our Massachusetts page for updates.

Good and Mad Reading for the Weekend

These two articles are so outrageous, they need no editorializing from us:

"Private purchasing of prison locks in occupancy rates"  In layperson's terms:  "We'll run your prisons, but only if you promise to keep them full!"  How is that good for sentencing reform, or for state budgets?!

"Proposal to buy prisons raises ethical concerns" The former director of the federal Bureau of Prisons is now securing deals for private prison companies.  You be the judge.

Faith, Drug Court, Redemption

The final installment from The Atlanta Journal-Constitution's series on drug courts is up, and it's about how one man's drug court experience and his faith propelled him to a cocaine- and crime-free life.  Certainly a worthwhile read and a heartening story.

One way drug courts differ from mandatory minimum sentences is of vital importance:  drug courts allow the court to address all parts of the offender.  Judges can tailor the program's requirements to fit individuals -- but no such option is available when a mandatory minimum sentence applies.

More Moving Stories from Georgia Drug Courts

The Atlanta Journal-Constitution's series on Georgia drug courts continues with these latest, quite moving installments:

"Drug court gave woman 'stability' to get life back"

"Drug court helps man ditch meth, regain family's trust"

Too often, it's crime horror stories that grab the headlines. We need to hear more positive stories of reform like these!

The Power of Perception -- and the Pen

This New York Times article details how a recent book on race and criminal justice became a best-seller and is changing perceptions even in unlikely places.

The book is Michelle Alexander's The New Jim Crow, and it

marshals pages of statistics and legal citations to argue that the get-tough approach to crime that began in the Nixon administration and intensified with Ronald Reagan’s declaration of the war on drugs has devastated black America. Today, Professor Alexander writes, nearly one-third of black men are likely to spend time in prison at some point, only to find themselves falling into permanent second-class citizenship after they get out. That is a familiar argument made by many critics of the criminal justice system, but Professor Alexander’s book goes further, asserting that the crackdown was less a response to the actual explosion of violent crime than a deliberate effort to push back the gains of the civil rights movement.

For many African-Americans, the book — which has spent six weeks on the New York Times paperback nonfiction best-seller list — gives eloquent and urgent expression to deep feelings that the criminal justice system is stacked against them. ... 

The book is also galvanizing white readers, including some who might question its portrayal of the war on drugs as a continuation of race war by other means. ...

Rick Olson, a state representative in Michigan, was one of the few whites and few Republicans in the room when Professor Alexander gave a talk sponsored by the state’s black caucus in January.

“I had never before connected the dots between the drug war, unequal enforcement, and how that reinforces poverty,” Representative Olson said. “I thought, ‘Gee whiz, let me get this book.’” ...

The Rev. Charles Hubbard, the pastor at Gloria Dei Lutheran Church, a mostly white evangelical congregation in Garland, Tex., said he had started carrying the book with him everywhere and urges fellow pastors to preach about it, though he acknowledged it could be a tough sell in Texas.

“I think people need to hear the message,” he said. “I don’t think Anglo folks have any idea how difficult it is for African-American men who get caught up in the criminal justice system.”

The article is a much-needed reminder that changing public perceptions is at the core of work on criminal justice reform -- including sentencing reform. We're in the changing-hearts-and-minds business here at FAMM. Building empathy for offenders -- and getting others to understand the bitterness and sense of unfairness so many feel toward the system -- is long, arduous work. Whether you agree or disagree with Alexander's conclusions, it is good news that people are taking notice and starting to try to understand the impact of and anger over racial disparities in the criminal justice system.

Federal Lawmakers: Take Notes!

Don’t miss a chance to dip into this latest release from the Vera Institute:  Reallocating JusticeResources:  A Review of 2011 StateSentencing Trends. It reviews reforms in 14 states, prompted by budgetary concerns but fashioned by policy makers using

a new approach to reform in which bipartisan, multidisciplinary policy groups are using analysis of state population and sentencing data, harnessing the political will emerging from the budget crisis, relying on decades of criminal justice research, and reaching out to key constituencies .... [and] bipartisan stakeholders using evidence-based methods to solve criminal justice problems and save taxpayer dollars. The result is legislation that aims to make more targeted use of incarceration and to invest the cost savings into community programs geared toward reducing recidivism and victimization.

What a grown up approach!  It stands in stark contrast to the old ways of criminal justice policy making, where the crime du jour drove the criminal law du jour.  These new tools and fresh collaborative approaches are proving effective and should stand the test of time, even when the financial crises have faded.

Our federal lawmakers could stand to learn a thing or two from their state counterparts!

Help on the Way for Pardon Seekers?

According to this latest article in ProPublica's multi-part expose of the flawed presidential pardoning process, former Maryland Governor Bob Ehrlich plans to launch a program to help people seek pardons -- by setting up a student-staffed law clinic at a Washington, DC-area law school:

Ehrlich's proposal takes aim at the inequities identified by ProPublica's investigation into the dispensation of presidential pardons over the past decade. White applicants were nearly four times as likely to receive forgiveness as minorities, the ProPublica analysis showed. African Americans had the worst chances of being pardoned. Applicants with congressional support were three times as likely to receive pardons as those without it.

Ehrlich, who granted clemency to more than 200 convicts while in office from 2003 to 2007, said a pardons program would help disadvantaged applicants and give law school students the experience [of] dealing with people seeking a second chance, fostering "a sense of fairness and justice."

FAMM applauds Governor Ehrlich for striving to fill this gap in the legal aid available to those with criminal records.  Ehrlich is still seeking funding and a university to house and run the clinic.

ProPublica's investigative journalism has revealed deep flaws in how the presidential pardon process operates.  Reforms have been suggested, but so far have never been put in place:

[Former White House Counsel Greg] Craig advocated for pardon reform while in the White House, assigning a group of lawyers to design a process that would make pardons more attainable. Among the options discussed was support for a law school clinic.

But none of the pardon reforms formulated early in the administration have advanced. Kathryn Ruemmler, who became Obama's third White House counsel last June, was among the lawyers who worked with Craig on them. Obama has turned down more pardon applicants, 1,019, and pardoned fewer, 22 - two of whom were minorities - than any modern president at this point in an administration.

The Justice Department's Office of the Pardon Attorney assesses each pardon candidate and makes recommendations to the president. Obama has followed them in nearly every case, as did President George W. Bush. ProPublica found that the pardon office recommends white candidates almost four times as often as minorities. Bush pardoned 189 applicants. Only seven were African American.

Craig said lawyers in the Obama administration developed plans to remove the pardons process from the Justice Department, but have not acted on them. At the state level, pardons are often handled by an independent board similar to a parole board.

FAMM supports frequent, wise, and accountable use of the pardon power -- including granting more commutations to reduce unjust and excessive mandatory minimum sentences.  Half of all federal prisoners are drug offenders; most of those are nonviolent; many are serving sentences that are far too harsh; many deserve a second look and a second chance.  A broken pardon review process doesn't help those prisoners, and it doesn't help the president do justice, either.

Drug court: Saving money, saving lives

That's the title of this first article in a five-part series on Georgia drug courts from The Atlanta Journal-Constitution.  It's a worthwhile, touching series of articles that details both the sad realities of drug addiction and the moving stories of recovery and redemption -- without prison.

People in court may get life in prison; people in drug court can get life, too — a life of liberty to lead as they choose. If they make it through the intense program, they know they can make it through almost anything.

Drug courts, part of a larger program known as “accountability courts,” are not universally accepted by the state’s judges and prosecutors. But they are central to a new approach to justice in Georgia.

The state’s typical response to crime — all sorts of crime, from stealing a few hundred dollars to nonviolent drug offenses to armed robbery and homicide — has been to lock people up. While effective in taking people off the streets, this approach has had two obvious consequences: The first is a $1 billion annual corrections budget that is growing by the year; the second is that minor criminals often leave prison to become major criminals, a greater danger to the community than when they went in.

The state now has 101 accountability courts, many of which require defendants to work, stay sober and get treatment, and Gov. Nathan Deal is proposing in this year’s budget to quintuple the funding for them to $10 million.

Here's a summary of how the courts work in Georgia.

These innovative and cost-effective programs only save Georgians money, though, if prison sentences for drug offenses are not mandatory.

Singing a Different Tune

Work in sentencing reform long enough, and it no longer becomes surprising to hear governors and lawmakers calling for harsher and harsher punishments (as if our current draconian punishments aren't bad enough already).

But New Jersey Governor Chris Christie is singing a different tune ... and it's positively refreshing.

In what he hopes will be "one of the lasting legacies" of his time in office, Gov. Chris Christie Thursday offered details for expanding a program that would make treatment mandatory for nonviolent drug offenders rather than serving time in jail.

"Budgets come and go, taxes go up and down; but saving lives, that lasts forever," Christie said Thursday at the Trenton Rescue Mission, a nonprofit organization with a residential drug treatment program.

The virtues and effectiveness of mandatory drug court participation and drug treatment should -- and hopefully will -- be debated, but for now, I'm just happy to hear a leader saying and trying something new and talking about drug offenders like, well, the human beings they actually are.  To Governor Christie, it's not just about dollars and cents and what works better:

"In the long run it will help us financially," [Gov. Christie] said. "But that’s not the only reason to do it. It will make us a better society."

The governor cited an October 2010 report on the state’s current drug that said its graduates were re-arrested 16 percent of the time, compared with 54 percent for nonviolent drug offenders released from prison.

Read more on this story here and here.

-- Stowe

More Prison Guards than Auto Workers?

That could become a reality if the United States doesn't curb its addiction to long prison sentences, according to this excellent editorial from the Newport News, Virginia Daily Press.  Anyone who cares about sentencing knows that America has too many prisons, but these numbers put the problem in a disturbing new light:

Not so long ago, the American landscape was dotted with working farms and thriving, humming factories. If we aren't careful, that landscape will soon become dotted with barbed wire and prisons.

In recent decades, the U.S. corrections industry has exploded into one of our strongest economic sectors. A 2010 report released by the Congressional Research Service revealed the industry employs about 770,000 workers, with the workforce expected to grow by as much as 16 percent by 2016, and that's even with slight declines in U.S. prison populations.

By way of perspective: The U.S. auto industry employs about 880,000 people.

To bring down the number of prisoners, the editorial argues, we need more alternatives to incarceration for nonviolent offenders:

In alternative and re-entry programs, these offenders develop better judgment, hone their life skills, become stronger parents and most importantly, grow a sense of pride and dignity that helps them succeed. Men and women who were once hopeless and marginalized are learning to become functioning, law-abiding and tax-paying citizens — while inspiring others to do the same.

And all of these benefits come at a far lower cost to the state. A day in prison costs about $79 per offender; depending on the program, a day in alternative sentencing costs from $14 to $55. A 2011 Justice Policy Center report revealed that for every dollar spent on community drug treatment, recidivism is reduced by 8.3 percent. 

But there still aren't enough programs to serve all the offenders who could be eligible.

Cost-effective alternatives to prison are not available, though, in cases when a mandatory minimum prison term is required. Those sentences apply to many nonviolent offenders who don't need prison time.

Getting rid of or scaling back mandatory minimums is the first step to make cheaper, more effective alternatives available as a sentencing option for judges.

A Love Letter ... of sorts ... to Canada

FAMM board member Eric Sterling pleads with Canadians to reject mandatory minimums for as little as 6 marijuana plants in this column in the Ottawa Citizen. The article nicely summarizes some of the best arguments against mandatory minimum sentences, using the United States as an example of what not to do:

As Canadian senators meet this week to vote on comprehensive anti-crime Bill C-10, they need to reflect upon the U.S. experience and reject the bill's entrenchment of mandatory minimum sentences for drug offences in Canada. ...

In the U.S., our Congressional Budget Office initially estimated mandatory minimums would increase costs of federal prisons by $55.2 million over the first five years. In fact, over the first five years the added costs totalled $3.216 billion, 58 times our estimates. ...

The U.S. mandatory minimum sentences were tied to metric system quantities unfamiliar to most Americans. Legislators adopted tiny quantities such as five, 10 or 50 grams to trigger long prison terms, naively believing those quantities would lead to organized crime kingpins. Similarly in Canada, the selection of six or 200 marijuana plants in Bill C-10 to "identify" important marijuana criminals are numbers that are ridiculously low. These are quantities that will send the gardeners to prison for the mandatory terms the government intends for organized crime chieftains. These numbers of plants suggest that most federal politicians have no understanding of the structure of the criminal industry they are trying to curb.

What could prompt a policy that costs so much and targets all the wrong people? In a word: politics. But in Sterling's words, "taxpayers can't afford the luxury of expensive and symbolic anti-crime measures." What we do need -- on both sides of the border -- are sentencing policies that are fair, cost-effective, and put sentencing power in the right hands:  those of judges.