Monday, April 30, 2012

Massachusetts Monday: Movie Review!

Wild, Wild “West”

I just saw the indie film “Code of the West” by local filmmaker Rebecca Richman Cohen. It’s being shown as part of the Boston Independent Film Festival. Go see it! It’s about Montana’s on-again, off-again medical marijuana law. It gives a fair look at the various players in a real-life drama, without parodying any of them. And perhaps most important, it’s a story that may be coming to your town soon.

The storyline (spoiler alert). In 2004, Montana voters passed a ballot initiative to allow private businesses to sell marijuana for medical use. Over the years, as the number of businesses and users grew and certain flaws in the law became clear, the backlash grew as well. In 2011, the Montana legislature voted to repeal the law. But Gov. Brian Schweitzer vetoed the repeal, citing the “will of the people” -- and wielding a cattle brand for emphasis. At the same time, repeal proponents were also pushing a “regulation” bill that, among other things, barred growers from getting paid for their produce. I’d call that strangulation, not regulation, but I guess that was the point. In a plot twist that even the filmmaker herself couldn’t foresee, the DEA showed up in the middle of the Legislature’s debate to raid 26 legally-run marijuana providers. The regulation bill passed. Gov. Schweitzer declined to sign the bill but he didn’t veto it either, so it became law.

Medical marijuana for Massachusetts? Cohen’s film is especially timely, given that Massachusetts voters may be weighing in on a similar – but presumably improved – ballot initiative this November. Bills were filed this session in the House and the Senate that would allow non-profit treatment centers to provide medical marijuana. But both bills have been sent to a “study committee,” which means they’re most likely dead for this session. However, a group called the Committee for Compassionate Medicine is working to put the issue directly before voters this fall.

One of the troubling things in the film is the repeal proponents’ battle cry to “protect our children.” Yet studies showed that marijuana use among Montana teens had actually decreased slightly since 2004. So much for evidence-based legislation. If the issue makes it to the ballot here, we may see the same approach.

Didn’t they get the memo? Well, actually, they did. The most disconcerting scene for me was the federal raid. Marijuana is illegal under federal law, period. But as you may remember, in 2009 the U.S. Justice Dept. issued a memo stating that the prosecution of those who use or provide medical marijuana in compliance with state laws would no longer be a priority for them. The film shows Montana growers working with state law enforcement agencies to be sure they are doing it right. Then it shows the raid.

I come from a civil rights background. The slogan “states' rights” still makes me cringe. For decades, those struggling for equality turned to the federal government for protection and enforcement. So it’s downright creepy to watch DEA agents dumping out and hauling off plants from business owners (aren’t they now called job creators?). Just a few days ago, the U.S. Justice Department issued its first statement about the raids, saying that prosecutions will continue. The feds claimed that some of those arrested were not in “clear and unambiguous compliance” with Montana law, as required by the 2009 memo. But isn’t that an issue for Montana authorities?


But wait. It’s gotten worse. U.S. Attorneys in several states that have passed medical marijuana laws are now warning elected officials that they still plan to enforce the federal law, even to the point of threatening to arrest state employees. Delaware passed its medical marijuana bill in 2011, allowing the licensing of three non-profit dispensaries. The state was in the process of drafting regulations when, in February, Delaware’s U.S.Attorney warned Gov. Jack Markell that the feds would consider prosecuting even “state employees who conduct activities mandated by the Delaware Medical Marijuana Act.” Gov. Markell put the program on ice, rather than subject state employees to federal drug trafficking charges.

This, to me, is truly reefer madness. The federal government seems determined to play “chicken” with state officials who are trying to implement the voters’ will (isn’t that called democracy?). Some question whether the feds could win, if push comes to shove. Certainly there are issues where the lines must be drawn. But is this really one of them? Pity the poor cancer patients who are caught in the middle.

Barb Dougan
FAMM Massachusetts Project Director

What Prison Really Means ... Again

I've said it before and I'll say it again:  we cannot appreciate enough what going to prison can really mean.  Too many of us scoff and say, "Oh, it's only X number of years in prison -- do the crime, do the time!"  Prison doesn't just mean loss of personal freedom (and a million other daily choices and luxuries those outside of prison take for granted every day).  For too many prisoners, prison can also mean sexual assault, rape, humiliation, and all the trauma that accompanies it.  

The Washington Post today calls on the Obama administration to get moving -- and move fast -- on implementing the Prison Rape Elimination Act (PREA), a landmark piece of legislation aimed at removing rape as a fact of prison life:
Congress unanimously approved the Prison Rape Elimination Act (PREA) in 2003 with rare and spectacular bipartisanship. Ideological opposites — Reps. Frank Wolf (R-Va.) and Bobby Scott (D-Va.) and Sens. Jeff Sessions (R-Ala.) and the late Edward M. Kennedy (D-Mass.) — were lead sponsors. The act created a commission that spent six years studying sexual abuse in correctional facilities and crafting thoughtful proposals to decrease such violence.
The commission was led by Judge Reggie B. Walton of the U.S. District Court for the District of Columbia, a judge known for his tough law-and-order approach. It included representatives from academia and the private corrections industry and prisoner advocates. The panel issued recommendations in the summer of 2009; the Obama administration had a year to craft regulations.
Instead, the Justice Department needlessly duplicated the commission’s work, re-interviewing dozens of individuals and groups whose views the panel had considered. It waited while a private consulting firm analyzed the costs of implementing changes, and it blamed the bureaucratic process for delays. It did not, in other words, move with all deliberate speed to protect those in government custody from a form of brutality that leaves psychological scars that can hamper a person’s reintegration into society. Swift and sure action would have been the appropriate response if the administration had been serious about refuting the vile assumption that sexual abuse is an acceptable byproduct of incarceration.
Rape shouldn't be a part of a prison sentence. But it probably will never be completely eliminated, even if our best PREA policies are implemented, so it's another reminder to lawmakers:  we need to be extremely careful in deciding who we imprison, for how long, and why.


And many in this country need to get past the ideas that prison is cushy, cozy, or not harsh enough, and that more time -- and more mandatory time -- is always the first and best answer to any crime problem.

-- Stowe

Friday, April 27, 2012

Attention Florida: Marissa Alexander Town Hall CANCELLED

This Saturday's town hall meeting in Jacksonville, Florida, hosted by the family of Marissa Alexander, has now been CANCELLED.

New Commissioner Could Mean Good Things for Guideline Reform

All of you wanna-be U.S. Sentencing Commissioners can stand down for the time being: President Obama has nominated Judge Charles R. Breyer to fill the seat on the Commission vacated at the end of 2010 by Judge Ruben Castillo. Judge Castillo left big shoes to fill as a strong advocate for individualized sentencing (and opponent of mandatory minimums) and one of the key champions for crack cocaine sentencing reform on the Commission.

Judge Breyer should not to be confused with his more famous brother, U.S. Supreme Court Justice Stephen Breyer (who, to make things more confusing, was one of the original Sentencing Commissioners responsible for drafting the first-ever sentencing guidelines).

I wanted to know right away: what does Judge Charles Breyer think about advisory sentencing guidelines and judicial discretion (which is a fancy way to say judges, not Congress or U.S. prosecutors, get to decide the sentence)? I have encouraging news to report on this front.

According to his testimony before the Commission in 2009 (his starts on page 103) we learn that

  • Judge Breyer likes advisory guidelines: “Almost all of us are more pleased with the post-Booker sentencing process than the previous [mandatory guidelines]. And I think that all of us actually would agree that sentencing, which is the hardest part of our job, has become even more difficult but more rewarding because of the responsibility it imposes on judges to do justice.” 
  • He likes individualized sentencing and appears to support the idea that guideline amendments should be based on empirical evidence, including feedback from judges: “There will and perhaps should be variances from the guidelines in individual sentences, but these variances should be explained in detail so that it is the guideline that ought to be amended; there will be empirical evidence on a nationwide basis to support its changes.” 
  • He said nice things about alternatives to incarceration: “[I]f there were ways to put within the guideline structure some alternatives for low-level drug defendants . . . that would encourage [alternatives to confinement].” 
  • He knows how to use the safety valve: In 2003 he sentenced a defendant convicted in federal court for growing medical marijuana (which was legal in the state of California) to one day in prison instead of the five-year mandatory minimum sentence he was facing. 
So, there is reason to hope for good should Judge Breyer be confirmed. I have been on a rant lately about the Sentencing Commission’s failure to embrace the merits of the federal advisory guidelines system, so perhaps Judge Breyer is just the breath of fresh air we need right now from the West.

Mary Price
Vice President and General Counsel, FAMM

Thursday, April 26, 2012

How Many Cases Will it Take?

Sick of the Marissa Alexander 20-year mandatory minimum story from Florida yet? Neither are we.


FAMM President Julie Stewart explains why Ms. Alexander's case is an outrage in this new piece over at The Huffington Post.  Sure, crimes involving guns -- especially fired guns -- are scary, but not all of them deserve a 20-year mandatory minimum prison sentence:
If asked to give an example of the type of crime that merits Florida's 20-year sentence for committing a felony with a deadly weapon, one might think of an armed robber who holds up an elderly couple at gunpoint while his partner in crime loots the couple's earthly possessions. Or an unhinged predator who intimidates a petrified convenience store clerk into handing over all of his cash by shooting five bullets at the counter register. These examples would be pretty accurate; robbers make up the second largest category of offenders sentenced to automatic 20-year sentences. Murderers are first.
Marissa Alexander is not a robber or a killer. She is a 31-year-old mother of three who was afraid for her life one August afternoon two years ago. Her husband was threatening to kill her and there was reason to believe he might make good on his threat. He had physically abused her in the past, one time sending her to the hospital. ... Fearing for her safety, she grabbed her legally registered handgun and re-entered her home to retrieve her keys. Her husband continued to threaten her and refused to leave despite her repeated requests. Finally, Ms. Alexander fired one shot from her handgun into the ceiling and her husband left. Ms. Alexander's husband told investigators in a deposition that she never pointed the gun at him or her stepsons and that she probably fired the warning shot because, "I honestly think she just didn't want me to put my hands on her anymore, so she did what she feel (sic) like she have (sic) to do to make sure she wouldn't get hurt."
Ms. Alexander was convicted and faces the 20-year sentence -- and there is nothing the Florida judge can do about it at sentencing.  The judge might as well not even be in the room.  The Florida legislature sentenced Ms. Alexander years ago, before she even entered the criminal justice system.

How many Marissa Alexanders will it take before we reject these foolish mandatory sentencing laws?

Attention Florida FAMM Supporters!


The family of Marissa Alexander, who is facing 20 years under Florida's "Stand Your Ground" law for defending herself against her abusive husband, has asked me to pass along information about a town hall meeting they've organized to discuss this case. 


The event takes place this Saturday, April 28, at 3:00 PM at Greater Harvest Christian Fellowship in Jacksonville. The address is 9113 Ridge Blvd. Jacksonville, FL 32208. 

I will be among the speakers at the town hall, and this is a great opportunity for anyone who cares about reforming Florida's sentencing laws to come show their support. I encourage everyone who can make it to come! If you have any questions about the event, please feel free to contact me at gnewburn@famm.org.  Thanks, and I hope to see everyone in Jacksonville on Saturday!

Greg Newburn
Florida Project Director

Wednesday, April 25, 2012

Standing Your Ground -- or Walking on Shaky Ground?

Reason has more news today on the story of Marissa Alexander, who is facing a 20-year mandatory minimum sentence under Florida's 10-20-life law for defending herself against an abusive spouse. She is the latest in a line of cases that shows that, at least in Florida, standing your ground with a gun -- even if you don't hurt anyone -- can, in fact, be more akin to putting yourself on shaky ground ... and it can mean you face a lot of prison time.
Like [George] Zimmerman, [the man who fatally shot Trayvon Martin,] Alexander held a carry permit. Unlike him, she did not injure or kill anyone, and the aggression against her is well documented. Yet she was arrested immediately, and she potentially faces a longer prison sentence. Zimmerman is charged with second-degree murder, which is punishable by a sentence up to life. But given the known facts of the case, he is more likely to be convicted of manslaughter (assuming he is convicted), which has a maximum penalty of 15 years. Notably, the same prosecutor who overcharged Zimmerman, Angela Corey, is the one who threw the book at Alexander.
There are two major issues here: whether Alexander's use of force was justified under Florida's law and whether, assuming it wasn't, a 20-year prison sentence is just punishment given the circumstances. The answer to the first question seems to be yes, and the answer to the second one is certainly no.

Tuesday, April 24, 2012

A Primer on Child Pornography Sentences

Ever wonder why mandatory minimum sentences for child pornography crimes are a bad idea?

Well, FAMM has its own brand new primer that answers your questions.

For example, did you know there's a five-year mandatory minimum federal prison sentence for "receipt" of child pornography ... but no mandatory minimum for "possession" of child pornography?  (If you receive something, don't you also possess it?  So why the difference?)  An increasingly common example:  your 18 year-old son receives a picture of his 16 year-old girlfriend's naked breasts in a text message on his cell phone. Your son could now be looking at a five-year mandatory minimum federal prison term for receipt of child pornography -- and if he forwards the message to a buddy, he could also be facing prison time for distribution of this single image. Clearly, this is not the kind of child pornographer Congress was aiming at, but mandatory minimums treat everyone the same.  It's another classic scenario in which a scary-sounding category of crimes may not actually be as scary in every situation in real life. Judges need sentencing discretion to sort out the teenage sexters from those who are the more serious and threatening child predators.

In one survey, over 70% of federal judges thought the five-year mandatory minimum for these child pornography "receipt" crimes was too long.  And as with all mandatory minimums, the harsh sentence is tied to the charge -- so a prosecutor, not a judge, decides what your punishment will be, just by deciding what to charge you with.  You're lucky if you're charged with "possession"; not so lucky if you're charged with "receipt."  And you can't challenge or appeal that charging decision, either -- which means you and the judge are stuck with the mandatory minimum.

Child pornography, to be sure, is something we want less of in our society.  But we shouldn't sacrifice individualized justice even in these cases.  As in all cases, the facts, circumstances, and offenders in child pornography cases are unique -- and they deserve a punishment that fits and is fair, not a one-size-fits-all sentence that steals judges' power to do justice.

Defend Yourself, Get 20 Years?

That seems to be the way it plays out in Florida, as yet another appalling self defense case is showing.

You may know about Florida's 10-20-life mandatory minimum sentence from the story of Orville Wollard, who fired a gun in his own house (no one was injured) to scare off his daughter's abusive and threatening boyfriend.  Wollard is currently serving a 20-year mandatory minimum for this action -- a sentence his judge found unreasonable.

Now comes the case of Marissa Alexander, a 31 year-old mom who fired a gun (again, no one injured) to ward off a threatening husband with a history of abusive behavior.

FAMM comments on the Alexander story and provides more details here.  A sampling:

“A lot of attention has been paid to Florida’s ‘Stand Your Ground’ law and far too little to the state’s extreme, one-size-fits-all sentencing laws,” Ms. Stewart said. “Less than three years ago, Orville Lee Wollard, a lawful gun owner, fired a warning shot in his home to chase off a young man who had been abusing his teenage daughter. After Wollard rejected a plea deal and a jury rejected Wollard’s self-defense claim, a Florida judge was forced by the state’s mandatory minimum sentencing law for assault to send Wollard to prison for 20 years. Mr. Wollard’s judge stated that he thought the sentence was excessive, but said his hands were tied.
“In the coming weeks, Marissa Alexander, who was also found guilty of assault with a deadly weapon, will likely be sentenced to the same 20-year mandatory minimum prison term. While reasonable people can disagree on whether Mr. Wollard or Ms. Alexander deserve any prison time for their conduct, no one can honestly believe that these were the types of cases the legislature had in mind when it passed the 10-20-Life automatic gun sentence,” Stewart said.
Mandatory minimums are the worst possible sentencing option for self defense cases, which are powder-kegs of explosive and sensitive facts and circumstances. When legislators create a mandatory minimum sentence, they can't foresee all the unusual, extraordinary, or even bizarre scenarios that might come up in a self-defense case and make that sentence downright irrational.

But judges get a front-row seat to the action -- they learn the whole story. In self-defense cases -- as in all cases -- judges should have as much flexibility as possible at sentencing to make the punishment fit the facts and the defendant involved. Anything short of that is a recipe for absurdity and injustice.

Monday, April 23, 2012

In Memory of a Fighter for Prisoners

Our good friend, Lynn Deffebach, a federal public defender in Oregon, passed away on April 19 at her home in Portland, Oregon.


Lynn was one of that Federal Public Defender office’s dream team of attorneys who refused to give up the fight for justice just because the sentence had been pronounced and the prison doors closed on her clients.  Lynn and her colleagues worked in the courts to increase federal good time credits, expanded use of community confinement, and robust use of the residential drug abuse program.  These issues matter a lot to prisoners, and Lynn never forgot that. We met Lynn when one of the cases she championed went all the way to the Supreme Court. We at FAMM knew Lynn as a dedicated advocate and skilled attorney who was never too busy to answer one of our many questions about how the federal Bureau of Prisons functions.  We were proud to be on the same side with her in our battles with the BOP and we will miss her very much.

Remembering Chuck Colson

Sentencing reform lost a true champion this weekend with the passing of Prison Fellowship founder Chuck Colson.  FAMM offers its condolences to Colson's family and to the staff at Prison Fellowship and its sentencing reform arm, Justice Fellowship.

Among many tributes, Michael Gerson over at The Washington Post offers a particularly moving one to Colson, and he beautifully notes how Colson lived what he preached and what Christianity teaches:

Prison often figures large in conversion stories. Pride is the enemy of grace, and prison is the enemy of pride. “How else but through a broken heart,” wrote Oscar Wilde after leaving Reading Gaol, “may Lord Christ enter in?” It is the central paradox of Christianity that fulfillment starts in emptiness, that streams emerge in the desert, that freedom can be found in a prison cell. Chuck’s swift journey from the White House to a penitentiary ended a life of accomplishment — only to begin a life of significance. The two are not always the same. The destruction of Chuck’s career freed up his skills for a calling he would not have chosen, providing fulfillment beyond his ambitions. I often heard him quote Alexander Solzhenitsyn, and mean it: “Bless you, prison, for having been in my life.”
Chuck was a powerful preacher, an influential cultural critic and a pioneer of the dialogue between evangelicals and Catholics. But he was always drawn back to the scene of his disgrace and his deliverance. The ministry he founded, Prison Fellowship, is the largest compassionate outreach to prisoners and their families in the world, with activities in more than 100 countries. It also plays a morally clarifying role. It is easier to serve the sympathetic. Prisoners call the bluff of our belief in human dignity. If everyone matters and counts, then criminals do as well. Chuck led a movement of volunteers attempting to love some of their least lovable neighbors. This inversion of social priorities — putting the last first — is the best evidence of a faith that is more than crutch, opiate or self-help program. It is the hallmark of authentic religion — and it is the vast, humane contribution of Chuck Colson.

The Uncertainties in Mandatory Minimum Laws

The whole point of mandatory minimum sentencing laws is certainty, right? That's how these laws are supposed to scare people off of committing these crimes, right? "Do the crime, do the time!"  Isn't that the rallying cry of every supporter of these draconian punishments?  

Well, not so fast, because mandatory minimums can be anything but certain -- not because of loopholes for judges, as one might guess, but because of a big loophole for prosecutors:  their charging power.

In short:  whether you get a mandatory minimum sentence or not may depend entirely on the prosecutor you draw in your case.

FAMM President Julie Stewart explains in this Huffington Post column how this happens, using football star Plaxico Burris as an example:
Three years ago, football star Plaxico Burress was indicted after accidentally shooting himself in the leg in a city nightclub. Though Burress was not a resident of New York State, carried the gun for personal protection, did not hurt anyone other than himself, and might not have been aware of the state's strict gun law, New York City Mayor Mike Bloomberg pressed prosecutors to throw the book at him. ...

The Bloomberg-backed law required that every individual found guilty of illegal handgun possession serve at least 3½ years in state prison. No longer would judges be bothered to actually consider "the facts of the case" or to show mercy on "sympathetic" defendants. "Now, if you are convicted," a satisfied Bloomberg said, "you will serve a minimum of 3½ years behind bars -- no exceptions." 
No exceptions -- unless your name is Ryan Jerome or Meredith Graves.
Over the past few weeks, Jerome and Graves, two out-of-state residents facing 3½-year mandatory minimums for carrying illegal guns in New York City, were given plea deals that allowed both to avoid spending a single day in jail. Jerome's case attracted the most attention because he was a former Marine who was "caught" after asking a security guard at the Empire State Building where he could store his gun while touring the popular site. Jerome was licensed to carry a gun in his home state of Indiana, but said he did now know he couldn't carry a gun in New York. In the end, he and Graves were happy to take deals that kept them out of prison.
Plaxico Burress was not so lucky. He was offered a deal by prosecutors, too, but it included substantial jail time. Rather than serve 3½ years, he could plead guilty and serve two. Because the law does not require prosecutors to prove criminal intent, Burress had no choice. He took the deal and served his time.
Mayor Bloomberg, who pressed for the "no exceptions" law and for vigorous prosecution of Burress, was inexplicably unbothered by the no-jail deals for Jerome and Graves.
Looks like mandatory minimums aren't so mandatory -- and prosecutors are the people we're trusting to decide. Should we trust them more than we trust judges?

Friday, April 20, 2012

A Baseball Hero's Greatest Comeback

Read this terrific piece from Fox Sports about our remarkable friend, Willie Mays Aikens. Willie, as my fellow baseball fans will know, made a name for himself by being the first ever player to hit multiple home runs in two games in the same World Series. Willie also made a name for himself another way – by being one of the first major league ballplayers convicted of drug use. He was later convicted and sentenced to serve 20 years for crack cocaine. Willie, who transformed himself while incarcerated, left prison in 2008 after serving 14 years, one of the beneficiaries of the Sentencing Commission’s decision to reduce crack cocaine sentences and make that reduction retroactive.

I met Willie when he came to Washington to participate in an event on Capitol Hill and we visited a congressional office together, where he told his story. This piece really captures Willie’s essence and journey. It also reminds me that many former prisoners, not so well known as Willie, who benefited from reduced sentences have gone on to reunite with family and work to build productive, useful lives. Which ought to tell our lawmakers something about excessive sentences for drug defendants. If the Commission had not lowered crack sentences for people like Willie, he’d still be in prison, not nurturing the next World Series aspirants.

Mary Price, the author of this post, is FAMM’s vice president and general counsel.

Wednesday, April 18, 2012

The Missing Question in the Great Marijuana Debate

Legal, or illegal?  That seems historically to be the central question in the debate about our nation's marijuana laws.  FAMM doesn't have a position (or an answer). While we think the question is an important one, the Great Marijuana Debate often overshadows another point:  under federal law, marijuana is illegal ... so what is a fair punishment for it, and who decides? 

Take this thought-provoking article from The Economist, for example. It asks why the federal government is prosecuting people who are growing marijuana legally, under their states' laws. To be sure, this is a vital concern for anyone who cares about maintaining the country's delicate balance of state and federal government power. But what happens to the people who are being prosecuted?

Well, they potentially face mandatory minimum prison sentences of five or 10 years or more -- sentences that are triggered (or not) depending solely on the weight or number of marijuana plants involved and the (unreviewable, non-appealable) charges the prosecutor (alone) decides to bring. If a mandatory minimum is in play, judges don't get to consider unique facts or extraordinary circumstances of the crime or the offender.

Take, for instance, Richard Lee, profiled in the article:
Oaksterdam university, a self-proclaimed “cannabis college” in Oakland, California, has been called everything from “the Princeton of Pot” to “the Harvard of Hemp”. Its founder, Richard Lee, has become the public face of the movement to legitimise marijuana. A paraplegic, he uses the drug for medical purposes, which is legal in California and 15 other states and in the District of Columbia. He also runs a dispensary for medical marijuana and sponsored a 2010 ballot measure in California to legalise marijuana completely in small amounts, whether medicinal or recreational. That measure failed narrowly, but the idea of legalisation continues to win converts.
Now, however, Mr. Lee is busted, harassed and in danger of federal prosecution. This month, armed federal agents stormed into his house and offices to confiscate plants and documents. Mr. Lee now says that, indicted or not, he plans to get out of his marijuana-related businesses.
If Mr. Lee is charged with a federal marijuana violation that carries a mandatory minimum prison sentence, the judge in his case will not be able to consider any of these facts about this man -- that he is a paraplegic, that his drug use is legal under state law, that he is an activist for a cause that the country is pretty evenly split on the merits of, that he apparently has already chosen not to continue his pot-related activities that are illegal under federal law (so much for recidivism), that (as far as we know) he has used no guns or violence and doesn't appear to be the least bit dangerous. In short, do we really want to force a judge to sentence Mr. Lee as if he is a big, bad, threatening drug dealer who we are actually afraid of?

This is the problem the Great Marijuana Debate overshadows:  judges don't get to decide the sentence.  Instead, we make them use one-size-fits-all sentences based on an ineffective 30 year-old policy  that requires costly years in prison.

The "legal or illegal" question isn't the only one we need to answer in the Great Marijuana Debate. Are mandatory minimum sentences fair, just, practical, effective? Do they keep us safe at a cost we are willing to pay? Are we willing to have them even if people who don't deserve them serve too much time in prison?

These are questions we'd like to hear more often in the Great Marijuana Debate.

More Attacks on Crack -- from the Media

Yesterday's arguments in front of the Supreme Court in the Hill and Dorsey cases have generated media attacks on the lingering injustices of 2010's crack sentencing reforms.  Take your pick from this selection of good ones:

The Washington Post:  Unjust crack penalties continue to plague defendants:  "If the justices conclude that the law demands Mr. Dorsey and others like him must be sentenced under the old regime, Congress should step in quickly to correct the problem."


The New York Times calls on the Court to allow pipeline defendants to benefit from the Fair Sentencing Act of 2010:  "Congress, the Obama administration and many federal judges agree that there is a need to correct a grossly unfair and unjustifiable sentencing scheme. The justices should allow the 2010 law to apply to all defendants sentenced after its enactment."

SCOTUSblog has a summary of comments from some of the justices during the arguments.

The Los Angeles Times also has a nice summary, available here with good quotes from Justices Sotomayor and Kennedy:
Justice Sonia Sotomayor said she found it a difficult decision. As a trial judge, she said, she had followed the rule that new laws are not applied to old crimes. However, the crack cocaine law was discriminatory and had to go, she said.
"I've been a judge for nearly 20 years, and I don't know that there's one law that has created more controversy or more discussion about its racial impact than this one," Sotomayor said.
Justice Anthony M. Kennedy said he too did not like the idea of requiring judges to sentence defendants to unfairly long terms. "The hardest thing, as we know in the judicial system, is sentencing," Kennedy said. If a judge is forced to use a repealed and discredited law, "that's a very difficult position to put the judge in," he said. 

Tuesday, April 17, 2012

Live from the Supreme Court!

FAMM Vice President and General Counsel Mary Price was at the Supreme Court today to hear oral arguments in  Hill and Dorsey, a/k/a the "pipeline" crack cases.  Here's the full transcript of the arguments themselves, or you can watch Mary's brief summary and analysis below.


Again, the Court will issue its opinions sometime before June.  Keep checking our website for updates.

This Tax Day, Waste Your Dollars

Happy tax day!

Returns are due to the IRS today, and in honor of that, FAMM President Julie Stewart explains in The Hill how the government plans to waste your money this year on mandatory minimum sentences that make no sense -- fiscal or otherwise.  Here's an example:

... a mother like Sabrina Giles is sentenced to 12 years in prison for allowing her abusive boyfriend to run his meth dealing business out of her New Mexico house. Ms. Giles, who had never even been arrested before, was gainfully employed and providing for her young daughter, despite struggling with substance abuse. What she needed was drug treatment, but what she got was more than a decade in federal prison. Her daughter was forced to grow up without the mother she loved and is now a teenager.
This isn’t tough on crime -- it’s just stupid.
And guess what: everyone knows it's stupid, too -- the public and legislators on both sides of the aisle.

Here's a list of recent naysayers on our country's foolish over-spending on mandated over-incarceration:  former American Conservative Union president David Keene. Rep. Bobby Scott (D-VA). Senator Rand Paul (R-KY). New Jersey Gov. Chris Christie (R-NJ). The Cato Institute’s director of criminal justice, Tim Lynch. Former Republican congressman and Bush administration DEA chief, Asa Hutchinson. Televangelist Pat Robertson. The growing list of conservatives over at Right on Crime.

The grand daddy of the anti-tax movement himself, Grover Norquist, has testified to Congress that “[t]he benefits, if any, of mandatory minimum sentences do not justify…[the] burden to taxpayers.”

Congrats, fellow taxpayers, on filing on time.  Let the waste of your money resume!

The Supreme Court on Crack

Well, not really, but yes.  Today the nation's highest Court in the land (no pun intended, really!) heard oral arguments in Dorsey v. United States and Hill v. United States, cases that could decide the fate of a small but significant number of federal crack offenders.


FAMM was up early and at the Court to watch the arguments, and we'll have our thoughts on what we heard and how the justices responded up later. Till then, check out this article from the Los Angeles Times, which explains how even the Department of Justice thinks the Fair Sentencing Act of 2010 should apply to the so-called "pipeline" defendants:
Shortly after Obama signed the law, Holder's department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before. ...
"It would be unconscionable" to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. "The courts were ahead of the Justice Department on this," she said.

Monday, April 16, 2012

Why do you care?

Why do you care about reforming mandatory minimum sentencing laws?

We wanted to know, so we've been asking FAMM supporters to tell us: on video.

It only takes one or two minutes in front of a camera to tell us why YOU care about making sentences fairer. Maybe you have a loved one in prison. Maybe paying all those taxes for all those prisons just burns you up (Happy Tax Week!). Maybe you think we're putting too many of the wrong people in prison for far too long, and it just isn't right. Maybe you think there are better ways we can keep the public safe and punish lawbreakers.  So...why do you care?

Watch what others are saying, and join the conversation!


Important Supreme Court Argument Tomorrow!

Tomorrow, the U.S. Supreme Court will hear oral arguments in two important cases:  Dorsey v. United States (11-5683) and Hill v. United States (11-5721).

The two cases will resolve a question that cropped up after the Fair Sentencing Act of 2010 (FSA) became law on August 3, 2010. Should crack offenders who committed their crimes before that date -- but got sentenced after it -- be sentenced under the old, unjust crack law, or the new, improved one? The answer could mean much fairer sentences for a small group of federal crack offenders, so FAMM filed a "friend of the court" brief arguing that the offenders in question should get the benefit of the FSA.

We'll be at the Court tomorrow, following the arguments, and will have an update on our website posted later that day. The Court will issue its decisions on the cases sometime before June 1, so keep checking our website for news on the outcome, courtwatchers.

Federal Sentencing Guideline Changes on the Way

The U.S. Sentencing Commission is the government agency that writes the federal sentencing guidelines, which apply in each and every one of the about 80,000 cases sentenced in federal courts each year.

The federal guidelines, just like cars, need tune-ups.  Each year, the Commission announces changes -- known as "guideline amendments" -- that it plans to make to the sentencing guidelines.  The changes don't go into effect immediately.  First, the public gets to comment on the proposed amendments; then, Congress gets an opportunity to reject ones it doesn't like.  Assuming they're not rejected by Congress, the guideline amendments go into effect on November 1 of the year they're proposed.

Like clockwork, the Commission proposed guideline amendments earlier this year, and FAMM sent in comments on the proposed changes. On Friday, the Commission sent the amendments to Congress for its review. Here are FAMM's thoughts on the amendments:

Safety valve: On one hand, the Commission voted to expand the safety valve, a federal law that applies to drug trafficking crimes and provides a two-level reduction when a defendant meets a set of criteria. The Commission voted to extend the safety valve to cover offenses involving “precursor chemicals,” the building blocks of manufactured drugs. On the other hand, however, the Commission voted to not make amendment retroactive, citing the difficulty of revisiting the records in cases to determine if defendants meet the safety valve criteria.

Fraud cases: The Commission adopted language suggesting judges may go below the guidelines in fraud cases. But it appeared to limit the “departure” to cases where the loss, while large, has a limited impact because it is spread among a large number of individual victims. On the other hand, the Commission increased the guidelines in fraud cases, for insider trading, and certain other frauds. The Commissioners did point out that the current amendments in this economic crimes area are only the beginning of a multi-year review and the public can expect more in the years to come. We’ll be sure to once again encourage them to be bold about reducing sentences in this area.
Post-sentencing rehabilitation: Bowing to the current state of the law, as defined by the U.S. Supreme Court in Pepper v. United States, the Commission amended the guidelines to remove the bar it contains that prevents courts from considering post-sentencing rehabilitation when resentencing a defendant.
Read more about the amendments at our website. The text of the amendments themselves is a bit dense and complicated -- definitely turf for serious sentencing nerds -- but is available here.


Remember:  these amendments won't go into effect until November 1, 2012, and they are not retroactive -- they won't shorten sentences for anyone who's already been sentenced.

Friday, April 13, 2012

Trusting Judges -- and Questioning Life

Jose Antonia Acosta-Hernandez will spend the rest of his life in federal prison. The Mexican drug cartel “enforcer” was involved in – either by participating in or directing – the killing of over 1,500 people since 2008. After pleading guilty to racketeering, money laundering, drug trafficking, weapons and murder charges – 11 counts in all – Mr. Acosta-Hernandez was sentenced to seven concurrent life sentences, three more consecutive life sentences, and another 20 years in federal prison.


Needless to say, the judge who sentenced Mr. Acosta-Hernandez didn’t go soft on him. In fact, she gave him the maximum sentence allowed by the law for 10 of his 11 charges. She took into account the offenses and the offender and gave Mr. Acosta-Hernandez a stiff sentence, ensuring that he would spend the rest of his life in prison for his crimes.

This case is an unfortunate but important reminder that there are some scary people out there, some who are a serious danger to society and who need to be in prison to protect the public. However, the exceedingly severe sentence of life without parole – that is, to die in prison – should be reserved for those who are a serious threat to public safety, who have irreparably offended our sense of justice, who are beyond meaningful rehabilitation.

This case is also an important reminder that judges, like the one who sent Mr. Acosta-Hernandez to prison for the rest of his life (and then some), are in the best position to determine who belongs in prison and for how long. And they aren’t afraid to hand out a life sentence to those who really deserve it. Mandatory minimum prison sentences, on the other hand, get in the way of justice. They can force judges to send people to prison for a long time, even life, who don’t need to be there.

Stephanie George is currently serving a life sentence in federal prison for a nonviolent drug offense. Though Stephanie played a minor role in a crack cocaine conspiracy – “as a girlfriend and bag holder and money holder,” her sentencing judge said – her prior convictions for selling small amounts of crack a few years earlier mandated a life sentence. At sentencing, the mandatory minimum prohibited the judge from considering Stephanie’s minor role in the offense. Despite his objections, Stephanie’s judge was forced to send the 26 year-old mother of three to prison for life – longer than any of Stephanie’s five co-defendants.

And for Stephanie and the thousands serving life sentences in federal prison, life means life – there is no parole in the federal system. So despite reforming herself by participating in educational and vocational programs and working hard at her prison job, Stephanie will not get another chance.

Stephanie’s story should shock people. And it does – many don’t know that there are people serving life sentences for nonviolent drug offenses (or anything other than murder). Fewer know that in cases like Stephanie’s, the sentence is decided by a prosecutor who makes a charging decision, rather than the judge who does the sentencing.

The criminal justice system doesn’t need mandatory minimums to keep the public safe. Judges, when afforded flexibility and discretion, are capable of meting out justice, whether it is drug treatment for those who need it or life in prison for those who deserve it. 

Kate Taylor
Research Associate

Deterrence Is a Myth Down Under, Too

Here at SentenceSpeak, we love looking at how other nations sentence.  Alas, often the news isn't good -- countries like Canada, Ireland, Britain, and Australia are beginning to contemplate and create more and more mandatory minimum sentences.  It's one aspect of American life that, trust us, they don't want.  But tell that to their politicians, who seem to be driven by the same knee-jerk overreacting and fears about being "soft on crime" that most of our lawmakers suffer from.

Sigh.

This interesting article from The Australian provides a nice response to an argument we hear all the time:  tough prison sentences (especially mandatory minimums) will scare people off of committing drug crimes.  The theory is called deterrence, and it's been proven time and again not to be valid.
The theory is that if we send drug offenders to jail for long periods other potential drug offenders will rethink their cost-benefit assessment of the activity and decide to get a day job instead.
The theory is a good one and it sounds logical. But science shows that the theory is wrong.
Study after study has established that longer jail terms (and even the death penalty) do not reduce crime.
The only threat that does reduce crime is the threat of being apprehended.
Hence, more uniformed police on the streets reduces crime.
It seems the main cost-benefit assessment undertaken by offenders is whether or not they are likely to be caught. They do not project far enough to consider exactly what will happen if they are caught.

The abject failure of general deterrence theory is evident from the fact that in virtually every city block in the world people can readily purchase illicit drugs.
There is nothing that can be achieved by a 20-year term of imprisonment for drug offending that can't be achieved by, say, a five to eight-year term. Any time beyond this is simply gratuitous and punishes the community.
On both sides of the hemisphere, we need to move past ideas that sound good in theory but haven't been proven to work in reality. Thirty years of experience with mandatory minimum sentences shows conclusively that they aren't stopping drug use and trafficking. Let's try something new, like alternatives that hold offenders accountable and keep them from committing crimes, and letting judges decide who needs prison time -- and how much.

Thursday, April 12, 2012

Not Everyone With an Illegal Gun Deserves Jail Time

That's the headline of this entertaining and right-on-target article from Michael Coard at The Philly Post, and it offers a sound pistol-whipping of mandatory minimum sentences for illegal possession of guns.
Mere unlawful possession, you’d argue, is enough to warrant mandatory imprisonment. No probation. No fine. No community service. No parole without a required minimum jail sentence. Good, you say. Bullshit, I say.
Mandatory imprisonment for any non-violent crime, including simple firearm possession, is wrong. Pennsylvania crime code section 6106 is titled “Firearms Not to Be Carried Without a License” and involves having a gun in a car or concealed outside one’s residence or place of employment anywhere in the Commonwealth. If an offender has no license to carry and isn’t eligible for such, it’s a third degree felony, which means he or she could face up to seven years in jail plus a $15,000 fine. Section 6108 is titled “Carrying Firearms on Public Streets or Public Property in Philadelphia” and involves possessing a gun without a license anywhere in the county. It’s a first degree misdemeanor, which means an offender could face up to five years in jail plus a $10,000 fine.
Neither crime requires a mandatory jail sentence, and that’s a good thing. In other words, a judge could, should, and often does simply impose a probationary sentence, a fine, court costs, and a supervision fee. And the reasoning is simple. No one was shot. No one was shot at. No one was injured. No one was threatened. The defendant did nothing more than possess a gun illegally. And as every reasonable person agrees, punishment should always fit the crime and the criminal. ...
To those who dismiss my assertions as the mere rantings of a bleeding-heart liberal, a criminal-coddling, soft-on-crime, fancy-pants defense lawyer, I say there’s nothing fancy about my pants.
Huzzah! If you think the arguments against mandatory minimums are boring, read the entire article. It's fun stuff, it's completely right, and you don't have to be a sentencing nerd to get it.

A "Silver Tide" Filling Our Prisons?

With longer sentences and harsher mandatory minimums, we are seeing a growing "silver tide" of elderly, ailing people filling our prisons. They are expensive to treat and house, yet many are not dangerous.  Governors and legislators are loathe to use clemency or compassionate release to let them out to die at home. This thoughtful and engaging piece from The California Progress Report asks some deep questions and provides some jaw-dropping statistics about the elderly incarcerated:
[F]rom 1995 to nearly 2010, the number of prisoners 55 and older nearly quadrupled—a growth 94 times the overall rate. As America’s prison population of 2.3 million people continues to go gray, a very real question presents itself: does everyone have a right to die free? 
Since one in ten prisoners are currently serving a life sentence, the population of older prisoners will continue to swell in a process calling “stacking.” Policies that have engendered this situation include increased likelihood and length of sentences, such as three strikes laws and mandatory minimums; crimes sentenced with life and/or life without parole; and more restrictions on parole. To illustrate, consider that nearly one third of federal prisoners who entered prison in 2009 had sentences ranging from 10 years to 40 years to life and most of them will die in prison.
Aging prisoners face some of the worst conditions and treatment, and they are the most expensive to house. Most policymakers seem to fail to see the implications of two facts: long-term, aging prisoners are astronomically expensive and they reoffend at the lowest rate of prisoners. In California, the cost to imprison a prisoner has increased by $19,500 since 2000; over one-third ($8,300) is from increased health care costs (and $7,100 for security, most likely because of overcrowding). The average elderly female prisoner in a California prison costs $138,000 per year and since prisons are not eligible for federal Medicaid and Medicare funding, the state picks up the tab.
Nation-wide, the annual cost of incarcerating an older prisoner is nearly double that of a younger prisoner, approximately $70,000 a year; Human Rights Watch reports that the cost of housing older prisoners is three to nine times higher than for younger ones. An extraordinary 82 percent of prisoners 65 and older have a serious and chronic medical problem that requires treatment. Even in Ohio, which leads the nation in care for older prisoners, only one-third of those with such conditions are in chronic care or hospice. ... [T]he health of most aging prisoners resembles that of a person ten years older.
Should lawmakers be required to consider a "death factor" when creating sentencing laws? In other words, should a guiding principle of sentencing be that, whenever possible, the offender gets to leave prison alive? To even ensure such a result, we'd have to start by doing away with mandatory minimum terms, because they don't allow for any consideration of a prisoner's age or health condition, or the likelihood of a death behind bars.

Thoughts?

Wanted: More politicians with guts

That's the message of this opinion editorial by FAMM President Julie Stewart over at The Crime Report, applauding Senator Rand Paul for showing the "courage of his convictions" in opposing new mandatory minimum sentences for synthetic drugs.
Paul has come under fire recently for insisting that the full Senate debate and consider amendments to three new crime bills. The bills add certain chemicals, which are being used by some to make synthetic marijuana and other synthetic drugs, to Schedule 1 of the Controlled Substances Act (CSA).

Paul believes most drug offenses should be handled by state and local governments, a view held by those concerned about overcriminalization, as well as by conservative Supreme Court Justice Antonin Scalia, who recently testified before Congress that the federal courts were being clogged by routine drug cases.
Closer to my heart, the Senator also expressed concern with harsh mandatory minimum sentencing laws that apply to most federal drug offenses.
“We are concerned about people being put in jail for 20 years for marijuana,” Paul told the New York Daily News.
He is right to be concerned. Under federal law, any person found guilty of distributing any chemical or drug on Schedule 1 of the CSA is subject to a mandatory 20-year prison term “if death or serious bodily injury results.”
The law does not require any criminal intent to kill or harm another person.

Consider the following easy-to-believe scenario: a college kid gives his dorm mate a package of synthetic marijuana he bought at the store. The package says the contents are incense and “Not for Human Consumption” (as most packages bought at stores are labeled).
He echoes the package warning to his friend, "By all means do not smoke or ingest this. It will screw you up."

The friend ignores him, smokes the imitation drug, and dies later that day after crashing his car. If it can be proved that his recklessness was caused at all by the synthetic marijuana, the friend who gave him the package would face a minimum of 20 years in federal prison, despite his lack of intent to cause any harm.
It seems like common sense that this stupid law should be repealed—not extended to more drugs.

Yet, Paul’s request that this absurd, strict-liability punishment be revisited before the new bills are enacted, has made him the object of vicious, often personal attacks.
Indeed, passing mandatory minimums probably feels good at the time for lawmakers -- a quick fix that also makes a nice soundbite. But it comes back to haunt us, widening our federal budget's girth and the scope of federal law. People don't think about the unintended consequences of the draconian penalties until it's too late. That's got to stop.

With tax day right around the corner, many are feeling the long reach of Uncle Sam's already long arm.  How many more of our tax dollars should go to stuffing federal prisons with people who could be handled better -- or more cheaply -- by the states? How much more should we pay to lock people up for predetermined prison terms, instead of letting judges decide how much time is needed and deserved?

Tuesday, April 10, 2012

In Florida, Still Fighting

Florida's last legislative session may have ended without the victory FAMM wanted to see, but we're not giving up -- and neither is state Senator Ellyn Bogdanoff, whose sentencing reform bill we supported.  She isn't quitting, despite a disappointing veto of her bill by Governor Rick Scott.  This Tampa Bay Times article shows her fighting spirit:
It took six long years for Sen. Ellyn Bogdanoff to pass a law intended to help a few people deal with their drug addiction in state prison.
It took Gov. Rick Scott only a few seconds to wipe it out.
Scott last Friday vetoed a carefully crafted bill that had the support of almost every conservative Republican in the state Legislature.
In an election year, state lawmakers are especially leery of voting for anything that an opponent could distort into a "soft on crime" attack.
This bill didn't do that. It passed the Senate, 40-0, and the House, 112-4, and had the backing of business groups, too.
"I'm phenomenally disappointed," said Bogdanoff, a Fort Lauderdale Republican who could not convince Scott that the modest reform in the bill would save taxpayers' money by reducing the chance that inmates would re-offend by getting them the help they need.
"He said it was a 'public safety' issue. No, it's not," she said. "These are nonviolent drug offenders."
Political leaders have to get past what she called the "garbage" of mindless "tough on crime" talk, Bogdanoff said.
She said Florida cells are full of people whose only crime is an addiction to drugs, and if they don't get help, they'll soon be back on the streets, committing new crimes to support the habit that flourished in prison.
But that's not how Scott saw it.
"Justice to victims of crime is not served when a criminal is permitted to be released early from a sentence imposed by the courts," Scott wrote in his veto message. "This bill would permit criminals to be released after serving 50 percent of their sentences, thus creating an unwarranted exception to the rule that inmates serve 85 percent of their imposed sentences."
Governor Scott's opposition to the reform bill seems particularly unjustified because (1) the reform would have benefited only a relatively small number of nonviolent drug offenders, (2) who are these "victims" Governor Scott is talking about in the cases of nonviolent drug offenders?, and (3) supposedly, Florida is trying to save money right now. Not only did the bill pass overwhelmingly through both houses of the legislature, but it was supported by business groups and conservative outfits like the Florida TaxWatch Center for Smart Justice.


Further, a recent Pew poll found that huge majorities of voters strongly support reducing prison time for low-risk, non-violent offenders for a variety of reasons, including completion of programs such as the ones Senator Bogdanoff proposed, good behavior, closing budget deficits, and re-investing resources in alternatives to incarceration. In light of that data, and in light of Governor Scott's campaign promise to cut $1 billion from Florida's bloated Department of Corrections budget, his veto of this "smart on crime" reform is simply dumbfounding.

But we'll be back.  Thankfully, so will Senator Bogdanoff.

Greg Newburn
Florida Project Director

Monday, April 9, 2012

Tim Tebow Puts His Faith in Action

Sentencing reform fans, here's a reason to love (or at least like) Tim Tebow, detailed in this report from NFL.com:

The New York Jets' quarterback has made 10 prison visits dating back to his time at the University of Florida, speaking and interacting with inmates who are looking for a fresh start.
Accompanied by chaplain and longtime family friend James Williams, Tebow had spoken with everyone from death row inmates to young offenders new to the system.
“It’s hard to fool people who are incarcerated,” Gerald Evans, an inmate at Lawtey Correctional Institution in northeast Florida, told the New York Daily News. “They can see right through you. They can tell when a guy’s faking, every time.
“Tim Tebow, he brought a charge to people here. He brought inspiration to people here. He is as real as you can get.”
Tebow has visited Lawtey twice, talking faith and throwing a football with inmates in the prison's gymnasium.
“Being in prison you automatically see the worst in people,” inmate Tyron Thomas said. “You meet a lot of people who pick up the Bible and when they put it down you can never tell they read it. There was just something about Tebow, and how he truly believes in the word of God. It’s kind of freaky, actually. It’s not something you see too often.”
Cynics might call Tebow's "Good Christian Boy" image an act, but stories like this show he really does come from a different angle than your typical sports star. It certainly helps to explain his unrivaled appeal among NFL players.
Indeed.  How important are prisoners to God?  Well, if Matthew 25:31-46 is any indication, very important: Jesus says visiting with a prisoner is like visiting with Jesus himself -- and gets God's approval.

We hope Tebow's exposure to prisoners also exposes him to the injustice of our mandatory sentencing laws and inspires him to speak out against them.

A Way Forward on Marijuana

That's the title of this intriguing piece from FAMM president Julie Stewart, on today's Huffington Post.

To legalize, or not to legalize?  That is so often the question when it comes to public debate about marijuana.  But there is another aspect of the debate, which is not raised often enough:  why do we still have draconian five and 10-year mandatory minimum prison sentences for marijuana crimes at the federal level?
[I]f the debate over marijuana policy consists only of legalization versus prohibition, the current stalemate could remain for several years. But there is a way to bridge the gap between those who think pot should remain illegal but be a low priority for law enforcement and those who think it should be legal and regulated like alcohol. ...
In 2010, federal convictions for marijuana-related offenses exceeded convictions for any other drug, and a full 44 percent of marijuana offenses carried a five- or 10-year mandatory sentence. Fortunately, most were spared the mandatory minimum because the crime was their first felony offense. But nearly 1,000 people in 2010 were subject to a lengthy mandatory minimum at sentencing.
These long sentences do not reflect the choices of federal judges. ... When asked by the U.S. Sentencing Commission in 2010, more than half of all federal judges responded that mandatory minimum penalties for marijuana offenses were too high.
Congress is not likely to decriminalize marijuana any time soon. Likewise, the states will probably not be allowed to opt out of the federal drug laws. Reasonable people can disagree with whether this is a good or bad thing -- and given recent poll numbers, it appears that reasonable people are equally divided.
What is not reasonable, however, is to keep in place a two-decade-old punishment scheme that locks people up for extraordinarily harsh prison terms for engaging in conduct that half of the country thinks should be legal -- conduct in which more than half of this year's presidential contenders engaged. Common sense should compel Congress to eliminate or drastically reform marijuana mandatory minimum prison sentences.
Indeed, there is a third way:  let's get rid of mandatory sentences for marijuana (and, while we're at it, all other crimes, too).

Friday, April 6, 2012

"The very fabric of our nation is at risk..."

...unless we reform our prison system and incarceration policies, says Senator Jim Webb in this stirring article first published in the Fredericksburg, Virginia Free Lance-Star.

It is in the interest of every American, in every community across this land, that we thoroughly re-examine our entire criminal justice system in a way that allows us to interconnect all of its different aspects when it comes to finding proper approaches and solutions to each component part. I am convinced that the most appropriate way to conduct this examination is through a presidential-level commission, tasked to bring forth specific findings and recommendations for the Congress to consider and, where appropriate, enact.

Since first introducing the National Criminal Justice Commission Act in 2009, my office has worked tirelessly to build the case for reform with groups from across the philosophical and political spectrum. Through these efforts, we have won the support of more than 100 organizations, including the National Association of Evangelicals, Prison Fellowship, the National Sheriffs' Association, the Fraternal Order of Police, the International Association of Chiefs of Police, the Sentencing Project, and the NAACP.
Many of these organizations, including a recent delegation of faith leaders and law enforcement representatives, have met with their elected representatives to voice support for the bill. We need to take a comprehensive look at our criminal justice system. As a nation, we can spend our money more effectively, make our communities safer, reduce the prison population, and create a fairer system.
FAMM supports Senator Webb's bill to establish a review commission.  We agree:  having too many people in prison at too high a cost is not good for America.  All of us pay -- in dollars and in other ways -- when the wrong person goes to prison, or goes to prison for too long, or doesn't get the proper treatment and intervention that will prevent future crimes.

It's not necessary to have a loved one in prison to be impacted by the issue of mass incarceration.  All of us are already impacted -- we may just not realize it yet.

Thursday, April 5, 2012

Sentencing Nerd Red Alert!

Over at The Crime Report, Ted Gest reports on the creation of a new panel of sentencing scholars who will be studying just how we got into this mess of having the world's biggest prison population:
Eighteen of the country’s leading scholars and experts on corrections and related fields have launched a major project to study the “causes and consequences of high rates of incarceration” in the United States.
The panel of scholars, chaired by Jeremy Travis, president of John Jay College of Criminal Justice in New York, will examine the reasons for the dramatic increases in U.S. incarceration rates since the 1970s, which have produced one of the world’s highest incarceration levels—with more than 2.3 million people behind bars in U.S. prisons and jails at any time. 
The topic has been widely discussed and analyzed for years by advocacy groups on the left and right, as well as by individual scholars. But the two-year, $1.5 million project, convened by the National Research Council (part of the National Academy of Sciences) represents the first time in recent memory that these issues have been subject to wide-ranging, cross-disciplinary research.
Whoo-hoo, sentencing nerds!  We can't wait to see what they produce.  We hope that they will pay particular attention to mandatory minimum sentencing policies -- whether they work, what they cost us, and how much they've contributed to our explosive prison growth.

Read more about what the panel will study right here.

Wednesday, April 4, 2012

If You Build It...

In what is looking to become a trend, traditionally prison-lovin' Colorado is joining the list of states shutting down their slammers.  The Los Angeles Times covers the story:

Sometimes if you build it, they don't come.
When construction was first planned in 2003 for a $184-million high-security facility within the Colorado prison complex in Canon City, the number of inmates being locked up in the state was increasing at what officials considered an alarming rate.
But something happened between the first shovelful of dirt in 2007 and the final paintbrush stroke in 2010: The Colorado prison population started decreasing, first a little and then a lot.
So much, in fact, that officials announced in March that the new facility — open just 18 months and two-thirds empty — would close next year.
The 316-bed prison, called Colorado State Penitentiary II, is the fourth correctional facility in Colorado ordered closed in the last three years because of a dwindling prison population. At its peak in July 2009, the state's inmate population was 23,220. As of February, it had dropped to 21,562. A decrease of 900 more inmates is expected by June 2013. ...
In some states, decades of get-tough sentencing have given way to alternatives to prison. They include probation and parole, mandatory drug treatment, mental health care and community supervision such as halfway houses, GPS ankle bracelets and regular drug testing.
A big part of reforming mandatory minimum sentencing laws is moving away from this notion that prison is the only solution to crime.  There are lots of cost-effective alternatives to incarceration -- we just need to ensure that judges have the full arsenal of options available to them.  Mandatory minimum prison sentences don't just deny judges smarter options, they also require judges to use more of a bad option in cases where more isn't necessary or helpful.

Blagojevich Sentence Begs Some Questions

Fallen former Illinois Governor Ron Blagojevich reported last month for a 14-year federal prison sentence for his corruption convictions.  His wife had some choice words about the sentence, as detailed in this brief AP article:
Fourteen years in prison for Rod Blagojevich.
Ten days in prison for his former chief of staff.
Same corruption case. Same judge.
“How do you explain that to your children?” Patti Blagojevich asked on her Facebook page.
In a recent Facebook posting, Illinois’ former first lady says she “can’t help but wonder what planet we are on” where one person gets ten days and another 5,110 days.
U.S. District Judge James Zagel last week sentenced former Blagojevich chief of staff John Harris on one count of conspiracy to commit bribery for helping Blagojevich try to sell President Barack Obama’s vacated Senate seat.
Zagel cited Harris’ decision to cooperate with prosecutors, including testifying at Blagojevich’s two trials. In addition [to the] brief prison term, Zagel sentenced Harris to two years of supervised release and a $1,000 fine.
Blagojevich faced more numerous allegations, and jurors eventually convicted him of 18 counts.
It begs some questions:

1.  Who is more responsible for the vast sentencing disparity in this case, the judge or the prosecutor?  My vote:  the prosecutor, who has virtually unchecked power to choose which cooperating co-defendants and co-conspirators get rewarded at sentencing and which don't.

2.  Do you feel safer knowing that Blago will spend 14 years in prison?  My vote:  no, even in spite of the fact that I personally find Blago about as sympathetic as a sack of dead spiders.

3.  Do you think it's a good use of taxpayer dollars to pay $392,000 to keep Blago locked up for the next 14 years?  My vote:  no.  Food for thought:  how many cops could that money put on the streets instead?

-- Stowe

Tuesday, April 3, 2012

New Pew Poll: The Public Gets It

The fascinating results of a new poll conducted by the Pew Center on the States are out, and they show that the public gets it on sentencing reform.
Key Takeaways
• American voters believe too many people are in prison and the nation spends too much on imprisonment.
• Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.
• Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups.
A common message in the results:  the public is for sentencing reforms -- including sending fewer people to prison for less time -- but only if it keeps us safe.  That means that alternatives to lengthy prison sentences have to be proven effective.  The cost of prisons also matters, but people are willing to pay to lock up those who are real threats.

FAMM agrees that sentencing reform should not come at the price of public safety.  We've never been against prisons -- rather, we just want the right person deciding who should go there and for how long.  Judges, we believe, care as much about public safety as any voter or lawmaker does.  And judges have better odds than lawmakers do of deciding who is dangerous and who is not -- after all, the judge knows all the facts and actually interacts with each individual offender, whereas legislators in state capitols and Washington don't.  Safety matters -- but we can stay safe without taking all sentencing power from judges through the use of mandatory sentencing laws.

Monday, April 2, 2012

Judge Gleeson's Mandatory Minimum Reform Plan

Kudos to Doug Berman over at Sentencing Law and Policy for pointing out this humdinger of a court opinion from federal judge John Gleeson of the Eastern District of New York.  The whole thing is worth reading and is crammed full of criticism of mandatory minimum sentences.

But most interesting of all is this:  Judge Gleeson has a bone to pick with the Department of Justice.

And pick it he does.  He says federal prosecutors are thwarting the clear intent of Congress.  How?  By charging small-fry drug offenders, street sellers, and addicts with crimes that carry mandatory minimum sentences.  Congress, says the judge, intended those crimes only to apply to people who are leaders or managers of drug conspiracies.  But Congress made a horrific mistake when it wrote mandatory minimum drug laws:  the draconian sentences are triggered by drug weight and type (e.g., 5 grams of meth gets a five-year mandatory minimum), regardless of the offender's role.

Judge Gleeson points out the absurdity of a quantity-driven sentencing system:

First, as the prosecutor pointed out at [defendant Jamel Dossie's] sentencing, two of his four crack sales happened to exceed the threshold quantity of 28 grams that can trigger the five-year mandatory minimum. They only barely exceeded it – sales three and four put Dossie in mandatory minimum territory by only 1.6 and 5.5 grams, respectively – but just as baseball is a game of inches, our drug-offense mandatory minimum provisions create a deadly serious game of grams.

DOJ can correct this shortcoming -- simply by choosing not to charge people with mandatory minimums if they are not the people those laws were meant for.


This "modest request," in Gleeson's words, isn't crazy -- it lines up with other comments Attorney General Holder has already made about reforming sentencing laws so that they don't snatch up those who are least blameworthy, and treating people as unique individuals at sentencing.

The only problem with Judge Gleeson's reform suggestion:  we have to count on prosecutors to carry it out.  As the judge knows only too well, federal prosecutors aren't accountable to him, you, me, or anyone.  They're not elected, and (unlike Judge Gleeson) their decisions can't be appealed or reversed.

In short, prosecutors are on an honor system not to abuse their power when it comes to using mandatory minimum sentences.  We must resort to trusting them to do the right thing.

As Jamel Dossie and tens of thousands like him each year discover, though, the right thing doesn't happen often enough in our justice system.

We applaud Judge Gleeson for calling on the DOJ to do what is right.  We hope they listen.  But we should all continue to urge Congress to rid us of this hopelessly flawed sentencing system by fixing the mandatory  minimum laws themselves.

Fareed Zakaria on Prisons

CNN's Fareed Zakaria offers an short but sweet affirmation that America is locking up too many of the wrong kinds of people -- nonviolent drug offenders, namely -- for too long, at too high a cost.  Just take a look at these numbers comparing what we spend on prisons instead of education:

In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. In 2011, California spent $9.6 billion on prisons, versus $5.7 billion on higher education. Since 1980, California has built one college campus; it's built 21 prisons. The state spends $8,667 per student per year. It spends about $50,000 per inmate per year.
Cost-effective sentencing reforms are the answer -- starting with getting rid of mandatory minimum sentences and letting judges decide who should be in prison cells and for how long.