Thursday, May 31, 2012

Sentencing Nerd Red Alert!

OK, so it's not exactly sentencing, but the Counsel on State Governments' Justice Center has a new toy out for those of us devoted to cutting prison costs and making a better justice system by keeping people from going back to prison.

It's the National Reentry Resource Center's What Works in Reentry Clearinghouse.

Contain yourselves, sentencing nerds, please.

The Clearinghouse tracks and measures the effectiveness of reentry programs that focus on mental health, employment, and housing, plus a special section that evaluates more high-profile or nation-wide "brand name programs."

Coming attractions:  reviews of reentry programs focused on substance abuse, education, sex-offender treatment, and more.

With our nation's overcrowded prisons, mass incarceration, and enormous costs, smart and cost-effective solutions that keep ex-offenders law-abiding are vital -- for state budgets as well as for public safety. Wouldn't it be grand to see judges have more discretion and more programming opportunities to avoid sending people to prison in the first place, if those people aren't dangerous and would benefit from such programming?  Unfortunately, mandatory minimum sentencing laws don't allow for any such discretion -- they only stuff our prisons even more.

LSD in Philly ... and in Research?

We just don't  hear much about LSD in the news these days, so this article from the Philadelphia Daily News really caught our eye.
IT TOOK A POLICE battering ram to bust down the door of the West Philadelphia apartment. Once inside, police discovered a colorful cache of psychedelic drugs — enough LSD to open thousands of "doors of perception" for six to eight hours at a time.
The Jan. 31 raid appeared to be a true flashback to a bygone era, with the federal Drug Enforcement Administration calling the 9,500 hits of LSD on tie-dyed images of Homer Simpson and Jerry Garcia an "anomaly" in Philadelphia. And since two of the five suspects arrested were Drexel students, the raid became known as the "Drexel LSD bust" in the media, with reporters interviewing students and getting statements from university officials. ...
The D.A.’s office said that the LSD ring was making $5,000 to $15,000 a week selling single doses for up to $30, prices that made some in online-drug and jam-band forums chuckle. Many believe that the West Philly acid was being circulated far and wide, not just among college students at Drexel or Penn, or among the music scene here. The availability of acid in Philly, one source familiar with the scene said, is about the same as it’s always been — if you want it, you can find it.
"This isn’t something like LSD is raining down on Philly," said Kyle McKay, who helps create "visual electronic dream-scapes" at shows and events with the Philly-based Psy-Fi Productions. "It’s not something the average person is looking for."
The article features an interesting digression into how the study of LSD's effects has grown in both academia and medicine over the last couple of decades. Once, such research was not taken seriously, but it might be getting more respect now, according to the article.

In the federal system, LSD cases are apparently small enough in number that they get lumped into the "Other" category in the U.S. Sentencing Commission's collection of data on the break-down of drug crimes by type.  LSD still carries federal mandatory minimum prison sentences, though -- one gram earns a five-year sentence, and 10 grams earns a 10-year sentence.

Wednesday, May 30, 2012

Missouri reduces worst crack disparity in nation

Last Friday, the Missouri legislature approved legislation that will reduce the disparity between crack and powder cocaine sentences. Two years ago, Congress reduced the federal crack disparity from 100:1 to 18:1, but many states, including Missouri, still imposed widely different sentences for state drug violations. In fact, Missouri's 75:1 crack disparity was the nation's worst.

Not for long. Show-Me-State Governor Jay Nixon is expected to sign the new bill, which will reduce the disparity to a less-than-perfect-but-much-improved 19:1 ratio. Kudos to the ACLU of Eastern Missouri, the Pew Center on the States, and every other group and individual that fought the good fight for sentencing fairness.

Tuesday, May 29, 2012

More on Broken Pardon Process on MSNBC

MSNBC's Melissa Harris-Perry has been doggedly telling the story of Clarence Aaron's failed bid for a presidential commutation and the allegations of pardon attorney misconduct that surround it. On her show, she interviewed former pardon attorney's office staff member Sam Morison, who explains how broken the commutation review system is and urges President Obama to commute Clarence's life sentence.

Check it out here.

Massachusetts Monday ... on Tuesday!

Since yesterday was Memorial Day (Happy Memorial Day!) and we were closed, we're doing Massachusetts Monday today.

Long live the local paper!  The Fitchburg, Mass. Sentinel & Enterprise features a guest column from FAMM Massachusetts project director Barb Dougan. It's called "The High Cost of Mandatory Minimums," and you can read all of it here.  It makes a more-than-compelling case that mandatory minimum drug sentences waste our money, don't reduce crime, and don't rehabilitate.
Many of us don't know anyone in prison. The laws that determine who goes to prison and for how long may not seem to affect you. But as a taxpayer, you pay for those laws. In fact, you pay a lot. It costs about $46,000 a year to keep one man or woman in state prison -- almost the cost of a four-year degree at UMass Amherst. Are you getting your money's worth?
For some criminals, we'd be willing to pay almost any price to keep them locked up. But when it comes to drug crimes, Massachusetts' drug-sentencing laws don't allow judges to distinguish between those who are violent or dangerous and those who aren't. The courts can't consider whether the person was the mastermind or simply made a phone call, whether the person was a first-time offender or a hardened criminal. They can't even consider what might prevent future crimes, such as ordering drug treatment instead of prison time.
Instead, our laws require judges to impose one-size-fits-all mandatory minimum prison sentences for many drug offenses. We lock 'em all up, regardless of whether they deserve it or we need it. Mandatory sentences for drug crimes -- 5, 10, even 15 years or more -- are often longer than the sentences for violent crimes.
Maybe we could justify the soaring costs if we were getting something for our money. But drug abuse and addiction only increase. In 2009, the state's OxyContin and Heroin Commission warned that drug addiction had become a public health epidemic. Drug crimes haven't been reduced either. As one low-level drug offender is sent off to prison, another takes his place. Demand controls supply, not tough-sounding laws.
Our laws also govern how drug offenders spend their time in prison. While serving mandatory minimum sentences, they aren't allowed to take part in vocational and educational programs that help prisoners re-enter the (legal) job market after being released. In addition, unlike most prisoners, drug offenders aren't eligible for parole. Instead, they walk out of prison with no re-entry plan and no supervision. A bipartisan commission convened by former Gov. Romney called these restrictions a "recipe for recidivism."
Compare Barb's article with this nice feature on the effectiveness of drug courts called, fittingly, "Drug Courts Help Addicts." Drug courts cost less and work better than mandatory minimum prison sentences. But judges can't use them if we require them to give mandatory prison terms instead.

Barb's recent letter to the Boston Globe describes how mandatory minimum sentences help pack Massachusett's jails and prisons tighter than a tin of tuna. Repealing those laws -- or at least creating common-sense exceptions to them -- would help considerably.

And last but not least, this lengthy article from The Herald News focuses on Massachusetts' three strikes law, shares the differences in the pending House and Senate bills, and notes the increased prison space troubles that harsher sentences could cause. But, seriously, how tough is tough enough?


Unfortunately, there’s a mistake in the next paragraph's description of the three strikes bills. For those the article refers to as “second-class offenders” (a term not used in any of the bills), the two prior offenses are not based on the proposed list. Instead, they are based on the length of the sentences for the two prior convictions. Under the current habitual offender law, it’s three years for each. While the Senate would keep that section of the law, the House would reduce the requirement to one year for each conviction. FAMM and many others strongly oppose that change because it would allow more low-level drug offenders – indeed, more low level, nonviolent offenders of all stripes – to be prosecuted as habitual offenders and sentenced to maximum time.
Massachusetts already has a habitual offender law that requires someone convicted multiple times serve at least half of his or her sentence before becoming eligible for parole.
The new law would create two classes of habitual offenders. Both would serve longer sentences.
A person convicted as a first-class offender - defined as someone with a total of three crimes under the House or Senate lists - would serve the maximum sentence for a crime, without parole eligibility. A second-class offender - someone convicted of a crime on the list without two prior convictions on the list- would serve at least two-thirds of the sentence before becoming eligible for parole.
To balance the impact on state prisons the Senate bill reduces mandatory minimum sentences for some nonviolent drug offences. But the reductions would amount to only a year or two off current sentences, not enough to offset the impact of the three-strikes provisions.
Barbara Dougan, campaign director of Families Against Mandatory Minimums said the Senate proposal does not go far enough.
"Our organization believes that these sorts of mandatory drug sentencing laws should be repealed altogether," said Dougan.
Keep tabs on all the Massachusetts reform news, bills, and updates, at our website.

Saturday, May 26, 2012

Thank you, Senator Rand Paul!

SentenceSpeak has written before about Senator Rand Paul (R-KY) and his heroic fight to make sure more individuals are not caught up in the broad net of drug mandatory minimum sentencing laws. In fact, Senator Paul singlehandedly stopped legislation to add new "synthetic drugs" to the Controlled Substance Act (CSA) because the CSA includes one of the harshest mandatory minimums in federal law: an automatic 20 years in prison for providing a controlled substance to someone who suffers serious bodily injury or death, even if the defendant did not intend to cause harm to anyone! The idea that someone must be punished so harshly despite any evidence that they intended to cause harm is antithetical to a free society.


But the supporters of the synthetic drug bills were not pleased with Senator Paul. They accused him of being indifferent to the families of individuals harmed by abuse of synthetic drugs. Some even said he had blood on his hands.


It would have been very easy for Senator Paul to cave. That's what most politicians do when the going gets tough, especially on an emotionally charged issue involving crime and public safety. But Senator Paul stood his ground, secure in the knowledge that he was fighting for an important principle: that courts, not Congress, should impose appropriate sentences after reviewing all the facts of a case. So Senator Paul continued to block the synthetic drug bills from moving through the Senate by unanimous agreement unless the sponsors were willing to add language that would have made clear that the CSA's 20-year mandatory minimum would not apply to offenses involving the newly scheduled synthetic drugs.


Last week, supporters of the synthetic drug bills saw a way to circumvent Senator Paul's principled opposition. Rather than try to move their proposal through the Senate as freestanding bills, they would simply attach them as an amendment to an unrelated bill that the Senate was preparing to pass. That bill, which was designed to reform the Food and Drug Administration, had broad bipartisan support and was sure to pass. And because a majority of the Senate supported the synthetic drug bills, it would have been easy to win the vote attaching those bills as an amendment to the FDA reform bill.


Undeterred, Senator Paul approached the amendment sponsor, Senator Rob Portman (R-OH), and told him he could not support his amendment unless Portman agreed to add language to limit the reach of the CSA's 20-year mandatory minimum. At the same time, the Senate's Republican and Democratic leaders were trying to reach an agreement to limit the number of amendments that Senators could offer to the FDA bill because they wanted to finish voting on the bill before Memorial Day. Senator Portman's amendment, therefore, was going to need the unanimous consent of all of his colleagues. That meant that Senator Paul still had the leverage he needed to secure a modification of Portman's amendment.


After some negotiations with Senator Portman and other supporters of the synthetic drug bill, Senator Paul was able to add a new section to Portman's amendment, which read:

SEC. 1144. PROHIBITION ON IMPOSING MANDATORY MINIMUM SENTENCES.
Section 401(b)(1)(C) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) is amended by adding at the end the following: ‘‘Any mandatory minimum term of imprisonment required to be imposed under this subparagraph shall not apply with respect to any controlled substance added to schedule I by the Synthetic Drug Abuse Prevention Act of 2012.


With this modification, the Portman amendment was attached to the FDA bill and the FDA bill was approved by the full Senate. Senator Paul had prevailed.


We know it’s not easy to stand up against those who want to lock everyone up and throw away the key. But because Senator Paul was willing to do so this week, he spared taxpayers from the burden of warehousing more low-level, nonviolent offenders for decades in prison. More importantly, he saved individuals and families from needless pain and misery.

On behalf of the thousands of families in Kentucky and across the country that have been devastated by mandatory minimum sentences, we extend our sincere appreciation to Senator Paul for his commitment to sentencing fairness. Well done, Senator, well done!



Friday, May 25, 2012

Cleaning House at OPA

That's what it's time for, and that's the title of this column in The Hill from former Republican Governor Robert Ehrlich and FAMM President Julie Stewart, calling yet again for a congressional investigation of the Office of the Pardon Attorney (OPA), which advises the president on which commutations (sentence reductions) should be granted or denied:

the OPA is not taking seriously its responsibility to fully review and give advice on the thousands of petitions it handles. A former OPA staffer recalled that most denial recommendations are simply long lists of applicants’ names, sent to the White House with no explanation of the most basic facts, such as the individuals’ crimes, rehabilitation, or special circumstances. ...
Presidents can help to ensure that all individuals receive the justice they deserve and, in some cases, the mercy they have earned. But it is Congress that created and funds the OPA. If the OPA is withholding or misrepresenting critical information in a manner that frustrates the president’s constitutional responsibility, Congress must act. Taxpayers should not be forced to subsidize a government office that is abusing its power, nor should applicants for executive clemency face a deck that was stacked in secret. Congress must investigate.
The Root also provides this coverage of FAMM's panel yesterday at the National Press Club, where a former OPA staff attorney shared shocking facts about the OPA's failure to provide presidents with neutral advice, recommending that virtually all commutation cases be denied.  In the Bush administration, the OPA found only 6 of 8,600 commutation applicants worthy of a positive recommendation. This just-say-no policy might make prosecutors happy, but it does nothing for justice, or mercy.

Thursday, May 24, 2012

FAMM Panel: OPA is Broken, Must be Investigated

Today at the National Press Club in Washington, DC, FAMM held a panel and called on Congress to investigate the Office of the Pardon Attorney (OPA), which reviews commutation and pardon applications from federal prisoners and provides the president with advice on whether they should be granted or denied.

Virtually all of that advice since 2001 has been this:  deny, deny, deny.  Presidents Bush and Obama trusted and followed OPA's advice, denying over 11,300 commutation requests.

It was an excellent panel.  Linda Aaron, the mother of federal lifer Clarence Aaron, shared how the OPA's misconduct in handling her son's commutation case devastated her and her family.  Former federal prisoner Derrick Curry described how getting a commutation from President Bill Clinton felt like hitting the Powerball, while Debi Campbell, a federal prisoner who had 3 commutation requests denied, described her frustration at never feeling like OPA took her applications seriously.  Former OPA staff attorney Sam Morison described how OPA is completely captive to a prosecutorial, just-say-no mindset, and reporter Dafna Linzer said she just couldn't believe that 7,000 denied commutation requests in the last four years actually received a meaningful, thorough review.

In short, the clemency review system is broken. Taxpayers pay for it, and Congress must investigate the OPA to make it accountable to the public and the president.

Read FAMM's complete coverage of the panel on our Twitter feed, check out our press release summarizing what the panelists said, don't miss this article about Linda Aaron's mission to bring Clarence home, and read Julie's letter in The Washington Post in response to Linzer's cracker-jack reporting on the Aaron debacle.

Let's Kill the "Death Rattle" Rule

That's the message of this column from FAMM President Julie Stewart over at The Crime Report.

What is the "death rattle" rule?  Once a person goes to federal prison, it is very, very hard to get out for any reason at all -- including getting very, very sick and/or old.  Julie explains the creation of the "death rattle" rule:
One little-known opportunity [for early release] permits courts to order the immediate release of prisoners in “extraordinary and compelling” circumstances. Although Congress did not restrict this opportunity to situations where an inmate was in grave medical condition, the relief— which became known as “compassionate release”—was limited to such cases.

But, and this is important, a judge cannot act unless the [federal Bureau of Prisons, or BOP] asks the court for the sentence reduction.

Before 1994, the BOP would only file motions in court to release terminally ill patients with less than six months to live. It did not matter if the inmate was bedridden or suffered from advanced dementia, or how many taxpayer-funded medical services he required.
In 1994, the BOP slightly broadened its qualifications to include those with a terminal illness and less than a year to live, but it made no difference.
BOP’s macabre standard became known as “the death rattle rule,” as in, no death rattle, no release. Despite the wider standard, during the 1990s, an average of 21 inmates a year received compassionate release, a figure that represents 0.01 percent of the federal prison population.
And herein lies the problem:  the BOP's "death rattle" standard is far too narrow, especially because the list of situations that could call for compassionate release was greatly expanded in 2007 to include, for example, an inmate with a permanent physical or mental health condition that prevents him from caring for himself and from which he is not expected to improve, or the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor children.

How has the BOP responded?
The BOP responded to this not-too-conservative, not-too-liberal interpretation by promptly ignoring it.
Instead, it has continued to follow its grisly death rattle rule.
This has got to change.  First, prisoners too sick to care for themselves aren't a danger to the public and, therefore, a waste of prison space.  Second, the list of older (and sicker) prisoners is only going to grow. That's what happens when you give people long, harsh prison sentences:  they stay in prison longer, get older, and (eventually) get sick.  Old, sick prisoners cost taxpayers a lot more than young, healthy ones -- and it's just plain cruel to keep them in prison if they are not dangerous.

"Ultimately," Julie writes,
... we need to expand the compassionate release program to save more than money.
We need to do it save our nation’s soul.

Wednesday, May 23, 2012

Momentum Building: Investigate the Pardon Attorney!

Since reporter Dafna Linzer's disturbing revelations about flaws in the federal commutation review process, there has been a growing movement to have the Office of the Pardon Attorney (OPA) investigated by Congress.  The OPA reviews commutation requests from federal prisoners and provides recommendations to the president, but it has come under fire, and the pressure is building.

First, FAMM called for a congressional investigation of the OPA for misrepresenting key facts about the judge and prosecutor's support for Clarence Aaron's commutation -- which ultimately led to Aaron being denied a commutation in 2008 by President George W. Bush.

Second, FAMM and dozens of groups wrote to Congress asking for an investigation.

Third, Representatives John Conyers (D-MI) and Bobby Scott (D-VA) wrote to President Obama, asking him to instruct Attorney General Eric Holder to investigate the allegations against OPA -- and if they're true, to commute Aaron's sentence.

And on May 24, FAMM will host a panel at the National Press Club to discuss why no one gets commutations, whether OPA is to blame, and what Congress should do about it.

The media is getting interested, too:  MSNBC is covering the story, and Main Justice has taken note.

FAMM President Julie Stewart explains the importance of an investigation and reform of this broken system over at the American Constitution Society's blog:
Sadly, Mr. Aaron’s story, while tragic, may only be a symptom of a much larger problem. Linzer’s research confirms what Families Against Mandatory Minimums (FAMM) has suspected for years: It appears that commutation applicants are denied with little or no meaningful review. Even those who have demonstrated extraordinary rehabilitation and reform while incarcerated and who pose no real public safety threat remain behind bars. Barbara Scrivner, for example, has served 18 years of a 30-year sentence for her minor role in a nonviolent methamphetamine crime. Her commutation petition was denied despite having the support of the U.S. Attorney, the judge, and a congressman. If someone with that kind of support can’t get clemency, what does it take?
The president – and only the president – has the power to grant a commutation. However, Congress can – and must – exercise its oversight power to ensure that the Office of the Pardon Attorney, for which taxpayers foot the bill, is operating effectively and honestly, and providing the president with sound, unbiased advice. Congress has a responsibility to all American taxpayers and to those who seek justice through the commutation process to investigate the OPA.
We'll keep providing updates on this story as it -- hopefully -- keeps picking up speed.

Monday, May 21, 2012

Even the Lawmakers Didn't Want This

By now you should be familiar with the story of Marissa Alexander, who received a 20-year mandatory minimum sentence for firing a shot (without hurting anyone) to protect herself from an abusive spouse.  As the saga continues, people are now starting to focus more on the mandatory sentence rather than on the failure of her self-defense claim under Florida's "stand your ground" law.

This AP article describes the problems with the 20-year mandatory minimum, including this sad fact:  the lawmakers who created it never intended for it to apply to people like Marissa.  Here are excerpts:

At [Alexander's] May 11 sentencing, Alexander's relatives begged Circuit Judge James Daniel for leniency but he said the decision was "out of my hands."
"The Legislature has not given me the discretion to do what the family and many others have asked me to do," he said.
The state's "10-20-life" law was implemented in 1999 and credited with helping to lower the violent crime rate. Anyone who shows a gun in the commission of certain felonies gets an automatic 10 years in prison. Fire the gun, and it's an automatic 20 years. Shoot and wound someone, and it's 25 years to life.
Critics say Alexander's case underscores the unfair sentences that can result when laws strip judges of discretion. About two-thirds of the states have mandatory-minimum sentencing laws, mostly for drug crimes, according to a website for the Families Against Mandatory Minimums advocacy group.
"We're not saying she's not guilty of a crime, we're not saying that she doesn't deserve some sort of sanction by the court," said Greg Newburn, Florida director for the group. Rather, he said, the judge should have the authority to decide an appropriate sanction after hearing all the unique circumstances of the case. ...
Victor Crist was a Republican state legislator who crafted the "10-20-life" bill enacted in 1999 in Gov. Jeb Bush's first term. He said Alexander's sentence, if she truly did fire a warning shot and wasn't trying to kill her husband, is not what lawmakers wanted.
"We were trying to get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime," said Crist, who served in the state House and Senate for 18 years before being elected Hillsborough County commissioner....
Marissa Alexander is the price we pay when lawmakers choose one-size-fits-all sentencing policies instead of letting judges -- who see the offender, the family, and the community up close -- decide the sentence.

Friday, May 18, 2012

Good and Mad Reading for the Weekend

This post at MSNBC sums up appalling new statistics on prison rape.

It isn't pretty:
Nearly one in 10 prisoners suffer sexual abuse while incarcerated in state prisons, local jails and post-release treatment facilities, according to a report published Thursday by the U.S. Department of Justice. ...
An estimated 3.7 percent said they were forced or pressured to have nonconsensual sex with another inmate. About 5.3 percent reported an incident that involved facility staff. ...
A quarter of those who reported they had suffered unwanted sexual contact at the hands of other inmates said they had been physically held down or restrained and a quarter had been physically harmed or injured. Nearly a quarter (23 percent) reported serious injuries, including anal/vaginal tearing (12 percent), chipped or lost teeth (12 percent), being knocked unconscious (8 percent), internal injuries (6 percent), knife/stab wounds (4 percent) or broken bones (4 percent), according to the survey of former prisoners. ...
Most victims of staff sexual misconduct reported some type of coercion. Half said they had been offered favors or special privileges and a third said they had been talked into it. Nearly 7 in 8 in this category reported only perpetrators of the opposite sex. More than three-quarters of all reported staff sexual misconduct involved a male inmate with female staff.
You can read the full report, the National Former Prisoner Survey, online here.

We've written before about the consequences of prison that most of us -- including many lawmakers who call for tougher and longer sentences -- just don't think about. Rape is one of those consequences, an ugly part of prison life that leaves physical and psychological wounds that hinder a person's rehabilitation and reentry to society. Rape shouldn't be part of prison life, but it should make us take a good, hard, long look at who we incarcerate, why, and for how long.  Prison is serious business and should be reserved for serious, dangerous offenders -- and a judge, not a legislature, is in the best position to decide who those people are.

Thursday, May 17, 2012

Clemency: Hit or Miss Justice

On Thursday, May 24, 2012, at 10:00 a.m. EST, FAMM (Families Against Mandatory Minimums) will host “Clemency: Hit or Miss Justice,” a panel discussion that will delve into the latest disturbing investigative article from ProPublica and The Washington Post about the Office of the Pardon Attorney’s (OPA) mishandling of federal prisoners’ requests for sentence commutations.

ProPublica has documented how the Pardon Attorney’s office misrepresented the facts in Clarence Aaron’s commutation request to the President and has contributed to a racial imbalance among pardon recipients. ProPublica senior reporter Dafna Linzer found that although the Department of Justice has received thousands of clemency requests – close to 6,000 during the Obama Administration – commutations are virtually never granted. In the past 12 years, only 12 commutations have been granted – just one by President Obama.

In light of these findings, FAMM is calling for a Congressional investigation of OPA to get to the bottom of how clemency requests are handled and why so few are approved.

Speakers will include:

  • Linda Aaron, mother of federal prisoner Clarence Aaron, a first-time, nonviolent drug offender serving three life sentences, without parole; 
  • Debi Campbell, a former model federal prisoner who served her entire 17-year sentence after her multiple commutation petitions were denied; 
  • Dafna Linzer, senior reporter and author of the ProPublica articles; 
  • Sam Morison, served for 13 years as a staff attorney in the Office of the Pardon Attorney; 
  • Molly Gill, FAMM director of special projects. 
WHERE: The National Press Club, 529 14th St. N.W., Zenger Room, Washington, D.C., 20045.

WHEN: Thursday, May 24, 2012. Registration begins at 9:30 a.m.; event is 10 a.m. – 11 a.m.

REPORTERS AND MEDIA:  Please contact Monica Pratt Raffanel at (202) 822-6700 or media@famm.org to arrange interviews with the speakers.

Florida FAMMers: Talk to us on Facebook Tomorrow!

Spend your lunch hour with FAMM this Friday, May 18th – virtually, that is! Please join us for FAMM’s first live Facebook forum! This Friday at 12 noon EST, FAMM Florida Project Director Greg Newburn will be answering your questions about Florida’s sentencing laws and reform, live on Facebook!

Florida’s sentencing laws have been in the news a lot recently, and Marissa Alexander’s case is further evidence for the need to reform the state’s mandatory minimum sentencing laws. So please join us! To do so, go to FAMM’s Facebook Page (www.facebook.com/FAMMFoundation) at 12 noon EST this Friday. Look for a post on the timeline and feel free to leave a question for Greg.

This forum will focus on Florida’s state sentencing laws, but be sure to stay tuned for future live Facebook forums from FAMM!

Wednesday, May 16, 2012

Why Can't This Man Get Clemency?

It's not because he's a serial killer.  Or because his life without parole sentence for a first-time, nonviolent drug offense makes sense or keeps us safer.  Or because he hasn't rehabilitated himself in the last 20 years he's been in prison.

It's because the Office of the Pardon Attorney advised the president to deny his commutation request -- after misleading the White House about the judge and prosecutor's support for a shorter sentence.

That's the appalling story of Clarence Aaron, revealed in this in-depth investigation by reporter Dafna Linzer.  Today, you can listen to her talk about Clarence's story and the problems in the clemency process and the pardon attorney's office.

FAMM is calling for a congressional investigation and reform.

Mothers are the First Punishers

In case you missed it (and we obviously did here at the blog), check out FAMM President Julie Stewart's Mother's Day piece in The Huffington Post.

Ahhh, mothers. For those of us who grew up with them, they were often the first to lay down the law of the land, and the first to punish us when we broke it. But they grieve when their children are punished too much -- no matter how old the child or what he did:

This Mother's Day was another bittersweet one for Janet Earle. At 78, she has outlived two of her three sons. A dozen years ago, she lost her third son, Scott, through the cracks of Florida's criminal justice system. That Scott remains in a Florida prison is as useless for public safety as it is heartbreaking to Janet Earle.
Janet Earle's story is unique because her son's sentence is so unwarranted. Scott's drug conviction was not the result of evil intent, but rather of a sadly common combination of addiction and bad judgment. Scott began using painkillers after he suffered a sports injury as a teenager. He did not become an addict, however, until after he was involved in several car accidents. His dependence on the medication grew until he was taking over a dozen pills each day. Janet Earle didn't notice her son's addiction because during this time he worked full-time at an auto dealership and moonlighted as a musician.
Scott is now serving a 25-year mandatory minimum sentence under a truly draconian Florida state law.  FAMM is working to reform that law, so that more mothers don't have to go through what Janet Earle is going through.

You can learn more about mandatory minimum sentences and support our work at www.famm.org.

Tuesday, May 15, 2012

One Day Late: Massachusetts Monday: Continuing Education

At FAMM, we spend a good deal of our time educating. We draft charts showing crimes and punishments. We tell the stories of prisoners. We even film videos for our website. One of our most important tasks is to educate lawmakers about the harm caused by mandatory minimum sentences and the need for change. We usually don’t know if our conversations or materials make a difference. But sometimes it looks like we helped.

The Boston Globe recently published an article about how a Massachusetts legislator, Republican representative Bradford Hill, has changed his views on mandatory minimums for drug offenses.

Rep. Hill is probably seen as a “tough on crime” guy. He filed legislation that led to an habitual offender bill the House passed in late 2011. The bill’s most controversial section would add a new “three strikes” section to the existing habitual offender law, doing away with parole in some cases. He is also one of three House members on the conference committee that is negotiating a final sentencing bill with the Senate. Both mandatory minimum reforms and changes to the habitual offender are on the table.

FAMM met with Rep. Hill in January to talk to him about Massachusetts’ drug sentencing laws. He was welcoming, congenial, and engaged. He was familiar with the Right on Crime movement and clearly had been doing his homework. We left a packet of our Massachusetts materials with him.

So, we were pleased to read about his change of position. The article itself is a little confusing, as it goes back and forth between mandatory minimum reforms and the habitual offender legislation. (And there are six members on the conference committee, not five.) But Rep. Hill’s laudable willingness to be educated comes shining through.
“I’ve come to a conclusion that we do need to change the way we imprison drug offenders. I’ve come a long way from the beginning of this.”

Hill said that unlike many lawmakers, he is not a lawyer, so when the governor proposed alterations to drug sentences, he paused.

“I was someone who said, ‘Why on earth would I change drug laws?’ That’s why it’s been an eye-opening experience.’’
We’re not going to take credit for his new views. But we hope we helped.

Barb Dougan
FAMM Massachusetts Project Director

More on Pardon System's Failure

Two articles today respond to yesterday's appalling revelations about how the Office of the Pardon Attorney (OPA) is failing the president, the public, and federal prisoners seeking sentence commutations:

  • Debra Saunders calls on President Obama to pardon Clarence Aaron and echoes FAMM President Julie Stewart's concern: "The Pardon Attorney's office is not a gatekeeper but a brick wall."
  • Reason calls it like it is:  "Aaron, who has been a model prisoner for more than 18 years, probably would be a free man today if the Justice Department's pardon attorney, Ronald Rodgers, had not misrepresented important aspects of his petition."

More from the Reason story:
Both Rogers and the Justice Department declined Linzer's requests to comment on the case. Linzer, who previously has shown that black offenders such as Aaron are much less likely to receive pardons (which clear the records of people who have completed their sentences) than whites, presents the case as another example of dysfunction in the Office of the Pardon Attorney, on which Bush and Obama both have depended to review clemency petitions and recommend responses. Citing "a former pardon office lawyer," she suggests the office has responded to commutation petition backlogs, which are largely a product of increasingly draconian prison sentences, with cursory reviews and mass denial recommendations. In other words, at the very time when presidential mercy is most needed, it is less likely to be shown, and there is little rhyme or reason to which applicants are lucky enough to receive it.
The Department of Justice's silence in the face of these grave accusations is unreasonable and unacceptable.  These officials are playing with people's lives -- what else is a life composed of but days and years? -- when they cursorily deny clemency to virtually everyone and misrepresent their stories to the president.

The Justice Department owes an explanation -- and reform -- to Clarence Aaron, his family, and the taxpayers who are footing the bill for this inept system.

Mandatory Minimums Will Endanger Women

Could mandatory minimums actually make people less safe?

Yes, says Elizabeth Grayer, the president of Legal Momentum, the nation's oldest legal defense and education fund dedicated to advancing the rights of all women and girls, in this important piece in Roll Call.  In short, mandatory minimums for domestic violence might make abused women less likely to report the abuse -- and more likely to stay with the abuser and be harmed further.


The whole article is worth reading, because it raises so many vital -- and counterintuitive -- points about how mandatory sentences don't necessarily make victims safer.  It's also a remarkable read because it's so rare to hear victims opposing tougher mandatory prison sentences:


The Hidden Danger in VAWA Reauthorization

Roll Call, May 16, 2012

Few issues can claim as much bipartisan support in Congress as the Violence Against Women Act (VAWA). This year, as in the past, lawmakers from across the political spectrum have joined forces to renew and, in some areas, improve the 1994 law. This near-uniform support is appreciated by all of us who spend our days trying to help the victims of domestic and sexual violence. We know that VAWA works and we are confident that the improvements approved recently in the Senate reauthorization bill will extend VAWA’s promise to even more people.

We are concerned, however, that both the Senate and House VAWA bills contain new mandatory minimum sentencing provisions that will do more harm than good for survivors of abuse. The many organizations dedicated to ending domestic violence who have worked long and hard with supporters in Congress to bring VAWA reauthorization to the President for his signature did not ask for and do not want these mandatory minimums. They undermine the goals of VAWA and should be eliminated before a final bill is sent to the president.

The bipartisan Senate VAWA bill includes a new five-year automatic prison term for all individuals who use force while committing aggravated sexual abuse. The House Judiciary Committee-approved bill requires a ten-year mandatory sentence when force is used and five years in all other cases. Both provisions are undoubtedly well intentioned and flow from the widely held view that stiffer punishments can deter certain crimes.

Domestic violence, however, is a different kind of crime. And mandatory minimums are very different kinds of sentences. A person mugged on the street will likely have no qualms about reporting the crime to the police. He or she will want the offender punished appropriately. A victim of domestic abuse, however, is often conflicted. She might believe that her abuser needs to be punished (and she protected) by some period of incarceration, but not for the required mandatory sentence. She may be less likely to report abuse knowing that if convicted her abuser is certain to go to prison for five or ten years, without parole.

A victim may be reluctant to be parted from the batterer for any number of reasons. A mother with children might worry how she is going to provide financially for her children without spousal support. A victim might also genuinely fear that reporting abuse could lead to worse abuse if the spouse pleads guilty to a lesser crime and is released quickly. This can happen when prosecutors use the threat of a mandatory five- or ten-year sentence to pressure defendants to plead guilty and be rewarded by getting out sooner.

Congress must recognize that anything that deters a survivor from reporting abuse is all but certain to cause more abuse. That is why we joined with many of our colleagues in urging the Senate to reject mandatory minimums in VAWA.

Over the past 18 years, an overwhelming majority of members of Congress have demonstrated their awareness of this reality. Enactment of new legal protections such as the rape shield law have made victims of abuse more willing to report their abuse. Overall, thousands of more victims are reporting domestic and sexual violence to the police and these reports are leading to more arrests. Even better, the changes brought about by VAWA have led to a 67 percent declining rate of intimate partner violence.

Members of Congress who support the goal of reducing violence against women - including those who support mandatory minimum penalties in other contexts - should recognize that new mandatory sentencing requirements for aggravated sexual assault are a step in the wrong direction. We urge House and Senate leaders to remove these mandatory sentencing provisions when crafting a final bill to send to the president.

Elizabeth L. Grayer is the president of Legal Momentum, the nation's oldest legal defense and education fund dedicated to advancing the rights of all women and girls.

Monday, May 14, 2012

Outrageous Clemency Story out Today

ProPublica investigative reporter Dafna Linzer has released a story that should fill us all with outrage.  


As many know, only President Obama can grant commutations (reductions) of sentences to federal prisoners, giving early releases to those whose rehabilitation or unjust sentence merits it.  So far, though, he has only granted one commutation -- just one.  People are quick to blame the president, but it may not be his fault at all, as Linzer's article shows by telling the story of Clarence Aaron.  The president counts on the Office of the Pardon Attorney to review commutation requests and recommend that they be either granted or denied.  But that office appears to be failing the president.

Aaron is serving life for a first-time, nonviolent drug offense.  According to the article, he might have been out of prison years ago ... but for the fact that the pardon attorney's office made some inaccurate statements and omissions about his case to key White House staff.

Here are the shocking details from the article:
[T]he prosecutor's office and the sentencing judge supported an immediate commutation for Aaron.
Yet the George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron's application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.
That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests. Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron's application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron's immediate commutation.
Kenneth Lee, the lawyer who shepherded Aaron's case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers's summary. Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron's sentence.
"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case." ...
Rodgers offered no new recommendation to the White House and did not revise the old one. He did not pass on years of favorable prisoner reports describing Aaron's successful rehabilitation. He also made no mention of an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."
Rodgers resubmitted the 2004 denial recommendation, unchanged, to the White House.
In an email the next day to Kenneth Lee, associate White House counsel, Rodgers did not disclose that [U.S. Attorney Deborah] Rhodes and the sentencing judge now agreed that Aaron should receive an immediate commutation. He told Lee that Rhodes suggested Aaron's sentence should be commuted to a term of 25 years "at some point." Rodgers also said that Rhodes believed "Aaron's commutation request is about 10 years premature."
No such language is in Rhodes's memo.
All Rodgers told the White House about Butler's views was that the judge had "no objection to commuting the sentence presently."
Rhodes would not comment on Rodgers's handling of the petition except to reiterate that she had recommended an immediate commutation for Aaron.
"I reviewed the case myself and thought it was a good one," she said.
If true, these are serious misrepresentations that should have serious consequences -- and do, for the applicants who are denied.

Other high- (or rather low-) lights, according to the article:  commutation requests have apparently been denied by the pardon attorney without adequate recommendations. On most cases, the president doesn't appear to get the facts and details he should have to make a good decision:
For the first 2 1/2 years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.
"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.
And thousands of people may have been denied this way:
Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.
FAMM has called on Congress to investigate these allegations about the pardon attorney's conduct and for the president to remove this review power from prosecutors' hands:
Congress should investigate this egregious behavior immediately with oversight hearings. The entire clemency process should be removed from the Department of Justice’s control. It is not in the president or the public’s interest to have a Pardon Attorney’s office that is captive to a prosecutorial agenda, doesn’t take clemency cases seriously, and doesn’t treat applicants fairly.

Friday, May 11, 2012

UPDATE: Alexander Gets 20 Years in Prison

The latest in the Marissa Alexander saga isn't surprising, but it's still heartbreaking:  today, the judge reluctantly sentenced her to a 20-year prison sentence in Florida -- all for defending herself from an abusive husband.

The judge had no discretion, no flexibility, and no choice:  Florida's 10-20-Life law required a mandatory minimum sentence of 20 years, so that's what he had to give to Ms. Alexander.  This story sums it up and quotes FAMM Florida Project Director Greg Newburn, who was present at the sentencing today:
"If we want to protect self-defense in Florida, we can't have a 20-year mandatory minimum hanging over the heads of people who fire warning shots instead of just killing their attacker," said Greg Newburn, Florida Project Director for Families Against Mandatory Minimums.
Newburn will attend the first public hearing of the task force appointed by Gov. Rick Scott to review the "stand your ground" law on June 12 in Sanford, where 17-year-old Trayvon Martin was killed by a neighborhood watch volunteer. The acknowledged shooter, George Zimmerman, claimed self-defense, but is now facing second degree murder charges.
Angela Corey, the Jacksonville state attorney and special prosecutor handling the Martin killing, will obviously fight any attempt to use the "stand your ground" defense in that case. And she said it doesn't apply to Alexander, either. Her office had offered a plea bargain of three years, but Alexander rejected it, hoping to convince a jury she had been in fear for her life.
"She got two shots at her self-defense theory," Corey told the Huffington Post on Thursday. "Neither a judge nor a jury bought it."
"It's a pattern we see all across the state," Newburn said. "[Defendants] turn down a plea deal because they think they're innocent…If you're guilty and you know it, you take the plea."
In Friday's sentencing, Judge James Daniel said he had no choice under state law but to give Alexander the 20-year sentence.
"Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," he said.
Now Alexander's options are few. She can appeal, which Newburn says she will do. And the governor and Cabinet can grant her clemency – that is, if one of the members of the clemency board can bring up her case, because Alexander herself can't apply until she's served ten years, or half her sentence.
We'll keep you posted on what happens from here.

Victims of Mandatory Sentences: The Innocent

Anyone familiar with mandatory minimum sentences knows that one of the only ways to escape their grasp is to confess to the crime and provide the prosecutors with information to go after others who might have been involved.

But what if you're innocent?  Or what if you don't have any valuable information to trade?  You're out of luck.

Two articles -- this Voice of America piece on Lamont and Lawrence Garrison, long-time FAMM supporters, and this sad story from The Houston Chronicle -- show the dilemma many a defendant can face, and the dangers of mandatory sentences. Those punishments can lead to false confessions and the jailing of innocent people, while those who are guilty (or have a lot more knowledge about the crime) go free or get less time.

From the Voice of America story:
In April of 1998, twins Lawrence and Lamont Garrison were about to graduate from Howard University in Washington. Both worked at the U.S. Justice Department and planned to attend law school. Then, they got the shock of their lives.
The man who had repaired their car a year earlier was indicted for cocaine and crack distribution. He told drug agents that the Garrisons had been involved in the drug conspiracy.

"They questioned me and showed me a picture of Tito Abea. They said, 'Have you ever seen this guy? And I said, 'Yes, he fixed my car,'" recalled Lawrence Garrison.
The Garrisons found themselves trapped on the darker side of federal laws that set mandatory minimum sentences for drug offenses, laws intended to make it easier to prosecute drug kingpins.

The garage owner faced a mandatory 10 years to life in prison. The only way to reduce that sentence was to implicate someone else, the Garrisons.
Critics of mandatory sentences say that is a common practice in drug cases. They also say the people implicated often have nothing to do with the crime.
"So they will give someone up. Other times, people actually make up names, and say, 'Well, yes, so and so did this. I saw him one time,'" explained Julie Stewart, president of Families Against Mandatory Minimum Sentences.
Lamont Garrison remembers being offered the opportunity to reduce his time.
"They said, O.K. Mr. Garrison, this is your opportunity to help yourself. 'Well help myself? How? What do you mean?' 'Well you know what this is about you guys are doing XYZ, you got to tell us what you are doing,'" recalled Lamont Garrison.
The opportunity to reduce one's sentence can lead to innocents being fingered for crimes they didn't commit.
Prosecutors claim that they need mandatory minimums to get people to plead guilty, so that our courts aren't hopelessly clogged with cases going to trial.  Even if that's true (and there's strong evidence it isn't), sending innocent people to prison is too high a price to pay for efficiency.

Thursday, May 10, 2012

Marissa Alexander Sentencing Tomorrow

After her motion for retrial was denied last week, Marissa Alexander is scheduled to be sentenced to 20 years in prison this Friday, May 11, two days before Mother's Day. Marissa's family, friends and supporters invite you to join them for a rally before the sentencing hearing at 7:30 a.m. Friday at the Duval County Courthouse, and at the hearing inside immediately after.

The address is 330 E. Bay St. Jacksonville, FL. We thank the FAMM supporters who came to last week's rally and hearing, and we hope to have even more this week. It isn't often we see such tremendous injustice unfold right before our eyes, and it is important that we present a united front against it every step of the way. If you have any questions about the event, please feel free to contact me at gnewburn@famm.org.

Greg Newburn
Florida Project Director

Tuesday, May 8, 2012

Where is the Clemency?

An MSNBC article asks this question and provides a grim update on President Obama's use (or, rather, non-use) of his power to pardon and commute offenders:
President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors. ...

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.
While campaigning for office, Obama was critical of the mandatory minimum penalties for drugs, especially those that specified much heavier sentences for those using crack cocaine than to the ones associated with more expensive powder cocaine.
Mandatory minimums, which emerged in the 1980s, are partially responsible for swelling federal prison populations — to 218,261 on the week of May 3, compared to 24,363 in 1980, according to government documents.

In April 2010, the president signed into law the Fair Sentencing Act, which aimed to even out the mandatory minimums, which critics say are discriminatory to African Americans.
But Obama did not — as some expected or hoped — go on to throw open the doors for large numbers of people incarcerated under the old mandatory sentences. ...
In a statement then from the nonprofit Families Against Mandatory Minimums, president Julie Stewart urged Obama "to continue exercising his clemency power and grant more commutations to the many deserving federal prisoners, like Eugenia, who have paid a hefty price for their mistakes and deserve a second chance."

The Missing Moral Dimension

Spiritual guru Deepak Chopra has a self-described "blistering" post in The Huffington Post today, bemoaning and berating everything from America's lack of affordable health care to white flight to ... prisons?

You betcha -- looks like Chopra has joined the ever-growing list of people who recognize that our addiction to incarceration is a social disaster.  But Chopra doesn't attack overincarceration in terms of taxpayer dollars and cents or even evidence-based studies that show that prison doesn't necessarily make us safer.

He says overincarceration is immoral:

When was the last time Congress or the states looked at prisons with a moral eye? America leads the world in the number of people incarcerated, more by percentage of population than in Stalin's gulag. A vast disproportion are black. A huge number are non-violent drug offenders, often condemned to outrageous time behind bars thanks to draconian state and federal laws with mandatory sentencing. A recent New Yorker article that outlined the grim statistics of overcrowding and skyrocketing expense called our prison system America's moral shame.
Then there is the plight of black America. Dry statistics speak of soaring unemployment, crime, and family breakdown. In the African American community, actual community is hard pressed to survive. Poverty is endemic. Seventy-five percent of black babies are born to single mothers. More young black males are in jail than in college. A hugely disproportionate number of black drug users and dealers are arrested and sent to jail compared to their white counterparts, even though actual drug usage is no higher in the black community.
For 40 years, ever since Nixon's law-and-order agenda gave the impetus, the trend in social policy has been skewed to eliminate compassion and focus entirely on rule breaking. Harsher sentencing, the end of most welfare programs, a rigid division between the black and white sections of town, the abandonment of the inner city by white flight, boosts in police forces, super max prisons, three strike laws, and on and on. Violent crime has dropped by 40 percent over the past two decades while sentences keep getting longer, prison populations keep rising, and states keep spending more per inmate than they do per student for education.
The overall picture is of a harsh, punitive society where divisions have become black and white.  I'm not speaking entirely of race, although African Americans bear the brunt of almost every misery. But so do poor people in general.
Yowza -- if that doesn't get your blood boiling, grab your wrist and make sure you've still got a pulse.

Is Chopra right?  Are we just a "harsh, punitive society" that doesn't care about prisoners at all?  There is, admittedly, not much in favor of arguing that we aren't.

Monday, May 7, 2012

Even Ex-Prosecutors Think Mandatory Sentences are Flawed

Yes, it's true, as this article from ex-federal prosecutor Jim Walden over at The National Law Journal shows.  His beef with mandatory minimum sentences?  They're being used to lock up too many of the wrong people:

Congress empowered the Department of Justice — through the creation of mandatory-minimum sentences — to end the careers of committed drug dealers. Second, the mandatory-minimum sentences were intended to be used against drug "kingpins" — the people at the upper echelons of large trafficking organizations, who make the most money, wield the most power and inflict the greatest violence and destruction. ... [But] mandatory-minimum sentences are used against even low-level members of identified trafficking groups in a way never intended by Congress. ...
In a recent case, U.S. v. Dossie, [Eastern District of New York Judge John] Gleeson called on U.S. Attorney General Eric Holder Jr. to reform DOJ's inconsistent and irrational use of mandatory-minimum sentences in drug cases, reserving them for drug kingpins, as Congress intended. ... The specific case concerned — of course — a young, black, street-level dealer, who turned to drug distribution to support his habit. This did not stop DOJ from seeking to enforce a harsh mandatory-minimum sentence. [Gleeson] respectfully urged the attorney general to reform DOJ's policy, reserving the use of mandatory-minimum penalties for the managers and leaders of drug enterprises whom Congress intended to target.
Eric Holder should listen to John Gleeson.
Hear, hear!

Friday, May 4, 2012

Good and Mad Reading for the Weekend

Many thanks to uber-blogger Doug Berman for alerting us to this well-worth-the-read sentencing memo from Senior Judge John Kane of the U.S. District Court for the District of Colorado.  Berman's post highlights some of Judge Kane's memorable opinions about the U.S. Sentencing Guidelines, trotted out in this blog post. Judge Kane's strongly-worded comments below qualify this for our "good and mad" reading for the weekend:
In an interview with Daily RFT, Judge Kane opens up about why the [John] Brownfield [Jr.] case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."
"Too many judges follow the guidelines as they were written on Mount Sinai," says Kane, who was nominated to the federal bench by President Jimmy Carter in 1977. By ignoring the guidelines in the Brownfield case, says Kane, he simply was following the advice of the Supreme Court following its opinion in Gall v. the United States, which he cited in his memo.
"Then and especially now, we're told not to deviate from those guidelines, but [in the Brownfield case] it didn't matter to me," says the judge. "I did what I thought was the right thing. You cannot reduce human conduct to a matrix. I think the guidelines help recognize what are normative sentences, but that doesn't mean all people can fit into the same slot ... there's something Orwellian about them." ...

"They ought to get rid of the entire double grid," Kane says now, suggesting the guidelines should serve as one of many sentencing factors. "To say all cats are black is bullshit," he adds. "There are different shades of gray, and that's what these guidelines don't take into consideration."
Kane takes care to note that ignoring federal guidelines should not equate with being soft on crime. One of his nicknames, he says, is "Maximum John" because of his tough stances on certain offenders that cross his path.
Judge Kane's comments arise from his decision to sentence Brownfield, a PTSD-afflicted Iraq war veteran, to probation instead of prison for smuggling tobacco into a prison while working as a guard there. There is spirited disagreement about whether military service should be relevant at sentencing at all -- some worry that it gives veterans undeserved special treatment.  But that doesn't necessarily mean Judge Kane got it wrong in Brownfield's case.

We can't help but agree with the spirit of Judge Kane's sentiments. FAMM supports the use of well-reasoned, evidence-based, and -- most importantly -- advisory sentencing guidelines, but they are not gospel. No guidelines, no matter how perfectly written, can sentence as accurately and fairly as a human judge who gets to look the defendant in the eye and consider all the facts and circumstances of that person and his crime. Sentencing should be the most human, not the most mechanical, of endeavors in a courtroom.  Mandatory minimums and mandatory guidelines alike take this indispensable humanity and discretion from judges and inevitably produce unjust results.

Thursday, May 3, 2012

A List of Lives

To many people, it's just a list of names.  Faceless people who are in prison, probably because they deserve to be, because when people do the crime, they should do the time -- no ifs, ands, or buts about it.

But to me, it's a list of lives.

Lives being spent the way all of our lives are spent:  one minute, hour, and day at a time.  Lives lost to that merciless master of us all:  time.

The Office of the Pardon Attorney (OPA) has released this list of names -- this list of lives -- of people to whom President Obama has denied commutations and pardons.

It's 110 pages long.

It's depressing.

OPA is the small office inside the U.S. Department of Justice (DOJ) that receives and processes thousands of requests for executive clemency -- pardons and commutations -- each year.  The cases are reviewed, the OPA writes a recommendation, it goes through a chain of command within the DOJ and into the White House, where the president -- and only the president -- decides whether to grant or deny a restoration of rights (in the case of a pardon) or a deserved second chance and early release from prison (in the case of a commutation).

President Obama's clemency record has been nothing short of appalling.  He waited longer than all but three other presidents to grant his first pardon (he has granted only 22 of them).  He has granted only one commutation of sentence, to FAMM member Eugenia Jennings, who was serving 24 years for a nonviolent crack offense involving a laughably small amount of the drug.

But when I see this list of lives, I wonder whether the president is entirely to blame.  The OPA is swamped with clemency requests.  Is it capable of handling that workload and giving each case the meaningful, indvidualized review it deserves?  It defies credulity -- and sheer odds -- to accept that only one federal prisoner who has sought a commutation -- one! -- has actually been worthy of receiving one.  If recent jaw-dropping revelations about racial disparities in the pardon process are any indicator of the pardon process's fairness and effectiveness, what do 3,800 commutation application denials suggest about the process for getting a commutation?

To me, they suggest that individual applicants are being treated like faceless names on a piece of paper, rather than individual human beings.  Most commutation applicants may not need or deserve to be released early, but many of them do.  Half of our federal prison population is incarcerated for nonviolent drug crimes.  Many are serving mandatory minimum sentences that were too long to begin with.  Many deserved their time, but have rehabilitated themselves and merit a second chance; some have moving and extraordinary stories of redemption.  Some are sick and dying and should do so at home, surrounded by loved ones rather than steel bars.  Some of them really did get a raw deal from our imperfect justice system, and a commutation is the only way to make it right.  The thousands of crack offenders who won't benefit from the non-retroactive Fair Sentencing Act of 2010 spring immediately to mind.

It's not a list of names.  It's a list of lives.  And what it tells me is that the commutation process is broken and must be fixed by President Obama himself -- he's the only person who can.

Molly M. Gill
Director of Special Projects

Wednesday, May 2, 2012

On "Warning Shots"

If you’ve been following the Marissa Alexander case, you know that at the center of the controversy is Ms. Alexander’s decision to fire a warning shot into the ceiling of her home, rather than at the center of her attacker’s chest. Ms. Alexander claims she was being threatened by her abusive husband – a claim confirmed by the husband himself – when she fired the shot.

As the story gained traction, a consistent theme appeared in comment sections around the web. “That’s why you never fire a warning shot,” was a dominant response. Others made the argument that a warning shot is itself evidence that she didn’t really fear for her safety, implying that true fear would have compelled Ms. Alexander to shoot to kill.

Such responses are not unreasonable, but I think they are wrong.

Fortunately, very few people ever find themselves in the position of having their life threatened. Even fewer have their life threatened while holding a gun with which to protect themselves. This means very few people have ever been in the position Marissa Alexander found herself in on August 1, 2010. In other words, while any of us can easily recite the Gospel of gun rights and self-defense advocates that you “never fire a warning shot,” one presumes that advice is much more difficult to follow in practice.

When you add the fact that Ms. Alexander’s attacker was her husband, the father of her nine-day-old baby, and the fact that his kids were in the next room, it becomes much easier to put yourself in her position, and much more difficult to casually dismiss her actions. Beyond that, what the “never fire a warning shot” folks seem to ignore is that the warning shot worked. In other words, in the middle of a heated argument, with only seconds to make what was literally a life or death decision, Ms. Alexander decided she could protect herself without killing her attacker. Or, as the attacker himself put it, she “just didn’t want me to put my hands on her anymore so she did what she feel like she have to do to make sure she wouldn’t get hurt . . .”

The goal of self-defense laws is to allow people to protect themselves with whatever force is necessary, but no more than what is necessary. Under that standard, Marissa Alexander made the right decision. Unfortunately, that decision may put her in prison for two decades.

My wife was robbed at gunpoint outside our apartment in Gainesville back in 2006. Afterward, we bought a handgun that I keep in our house. I hope I’ll never have to use it, and chances are I won’t. I tell myself that if necessary, I could and would kill someone who’s threatening me or my family. But I don’t know that I could. And I don’t know that, if I thought a warning shot would stop the threat, I wouldn’t try that instead of killing the intruder.

What I do know is that Marissa Alexander is not a criminal. Lee Wollard and Erik Weyant aren’t, either. While they may have technically violated a state statute, they pose no threat to the public. Reasonable people can disagree about whether any of them should have been protected by “Stand Your Ground,” or whether any of them should have been convicted. But no reasonable person can believe that a person who fires a warning shot deserves a 20-year mandatory minimum sentence.


Greg Newburn
Florida Project Director

Now it's time, Florida FAMMers: Help Marissa Alexander!

A hearing on Marissa Alexander’s motion for a new trial is scheduled for this Thursday, May 3rd, at 8:30 a.m. It will take place in Courtroom 6 at the Duval County Courthouse in Jacksonville.

Before the hearing, at 7:00 a.m., Ms. Alexander’s friends, family and supporters will rally at the courthouse for her release or retrial. We're asking FAMM supporters to attend the rally and the hearing. By showing your support for Marissa Alexander, you can take a stand against unreasonable and inflexible sentencing laws at a time when Florida desperately needs reform. The address of the Courthouse is 330 East Bay Street, Jacksonville, Florida.
 
Please come to the rally and the hearing! I’ll be there; together we can make a difference. If you have any questions about the event, or if you think you are going to attend, please email gnewburn@famm.org.
If you’re not familiar with Marissa’s case, you can read about it in the CNN article here, the Time Magazine article online here, or Julie Stewart’s discussion of the case over at the Huffington Post.

Greg Newburn
Director, FAMM Florida Project

More on Marissa Alexander

Listen live at 10 a.m. EST to FAMM Florida Project Director Greg Newburn discuss Marissa Alexander's case and 20-year mandatory minimum on WPFW radio.

And read FAMM President Julie Stewart's latest on Marissa's saga here, in The Washington Times.

Tuesday, May 1, 2012

Marissa Alexander on CNN!

We've been closely following the Marissa Alexander story out of Florida, in which Ms. Alexander fired a shot (and hurt no one) while defending herself against an abusive spouse -- and now faces a draconian 20-year mandatory minimum prison term for it.

Alexander speaks out on Anderson Cooper 360.  Watch it here, and you tell us:  does this woman deserve or need to be in prison for 20 years?  And isn't the judge, rather than the Florida legislature, in the better position to decide how much punishment is warranted in this unique case?

Is the trial penalty increasing sentencing disparity?

Super-blogger and law professor Doug Berman argues that yes, it is, in this interesting post over at Sentencing Law and Policy.

Berman analyzes the case of Marian Morgan, who received a 35-year federal prison sentence for running a Ponzi scheme that stole $28 million from 87 victims.  Morgan's husband, John, pled guilty and got a 10-year sentence.  Morgan was offered an 18-year plea bargain but opted to exercise her constitutional right to go to trial.  Her reward:  35 years in federal prison, no parole.

Because Ms. Morgan chose to put the government to its proof, her sentence was doubled. While we can kind of appreciate the fact that going to trial is tough and uses up government resources, can anyone justify adding 17 years to a sentence to punish someone simply because she chose to go to trial?

The Department of Justice (DOJ) has often expressed concern that the advisory federal sentencing guidelines are creating unacceptable disparities in federal sentencing, particularly in white collar/fraud cases.  But the DOJ is tellingly silent about sentencing disparities created solely by the fact that one person goes to trial (and pays dearly for it) and another person doesn't (and gets off with a much lighter sentence).  Prosecutors are the party chiefly responsible for triggering the trial penalty by seeking sometimes wildly enhanced sentences when defendants elect to exercise their constitutional right to trial.

If the DOJ's real concern is reducing sentencing disparity, the disparities from the trial penalty must be targeted, too -- a job prosecutors must take the lead on accomplishing.

Berman is skeptical that the DOJ really cares about reducing this kind of disparity, though:

If DOJ is truly concerned about unwarranted sentencing disparity in financial fraud cases — rather than, as I fear, really just concerned about the post-Booker potential for unwarranted sentencing leniency or about some defendants who have the temerity to exercise their trial rights not having to pay an extra heavy sentencing price — then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal to the Eleventh Circuit. But I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes.
In other words:  the DOJ only gets upset when someone receives what the DOJ views as too little time, not too much time -- especially if that person went to trial.

What do you think about the trial penalty?