Friday, June 29, 2012

Good and Mad Reading for the Weekend

Well if it wasn’t already as hot as could be in Washington, D.C. -- 103 degrees and counting -- here’s some really good writing that has us steaming mad, gathered in one place by our friends at ProPublica.

It is a collection of the best writing about U.S. prisons by investigative journalists from around the country. From the cozy relationships between private prison companies and municipalities in Louisiana to an expose about the horrific suicide rates in Pennsylvania prisons to sad stories about the juvenile justice system, these stories will remind you why we cannot forget what happens when a sentence is imposed.

Thursday, June 28, 2012

Inside (Prison) Baseball

Three strikes and you’re out!  For most people, that phrase evokes lazy summer evenings at the ballpark (or in front of the TV), beverage and hotdog at the ready, rooting for the home team.

But, this warm and fuzzy image has nothing to do with the fate of thousands of federal and state prisoners.  For them, three strikes means being sentenced to harsh mandatory minimums – up to life without parole; sentences often rendered outlandish by the banality of the third offense that triggered them.

This must read piece by the Crime Report recounts how,

during the 1980s and 1990s, states passed a raft of tough-on-crime measures, including mandatory minimum sentencing, truth in sentencing laws, and three-strikes laws.  Partly as a result, the country’s prison population doubled from 1990 to 2010, to more than 1.5 million.
The worst of them imposed lengthy, non-paroleable sentences for minor offenses, so long as they were preceded by two qualifying felonies.  As a prosecutor interviewed for the story said: “It’s not your current crime so much as what you did in the past.”  That might work at the plate, but not in a thoughtful and evidence-based justice system.

In the last few years, budget pressures and growing awareness of best practices have prompted a number of states to roll back three strikes and other unduly harsh mandatory minimum sentencing schemes:
Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).

At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.
California is poised to consider a sweeping reform of the country’s most notorious three strikes scheme when voters go to the polls in November.  And, wherever you think California falls on the spectrum, these reforms are not only championed by blue states or liberals:
Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole. Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.
In the interest of fair and proportionate sentences, here’s hoping more states – and Congress – take a tough look at their mandatory sentencing laws and leave three strikes to the big leagues.

Wednesday, June 27, 2012

Reforming Clemency and Crack Retroactivity

Today Main Justice picked up the story of 15 law professors calling on Congress to investigate the claims that the Office of the Pardon Attorney (OPA) is failing in its duty to give the president sound, impartial advice on commutation applicants.

And over at The Huffington Post, Nkechi Taifa of the Open Society Institute writes in favor of creating a special clemency board to apply the Fair Sentencing Act's reforms retroactively to federal crack cocaine offenders who haven't yet benefited from them:
[T]he fight for fairness and justice in crack cocaine sentencing is not over. The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.
Past presidents have set up clemency boards to provide justice to large numbers of similarly-situated lawbreakers (for example, draft dodgers). The sky didn't fall, and the world didn't end, and a lot of people got justice because of it. The president has full authority to use a clemency board, no approval of Congress required.  Writes Taifa,
Professor Mark Osler and former prosecutor Matthew Fass in a recent article, highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial. ...

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card." Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades. The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.
As Taifa notes, an independent clemency board -- located outside the OPA and the Department of Justice -- would be an unbiased, efficient, and transparent way to provide thousands of federal crack offenders with the fairer sentences the FSA provides.  The discriminatory 100-to-one crack-powder ratio was built -- and torn down -- on the backs of people who, unless Congress or the president acts, will never get the benefit of the FSA.  That's not right, and President Obama should consider setting up a clemency board to give them the justice they have so far been denied.

Good News in Ronald Thompson Case!

Florida prisoner Ronald Thompson, serving a 20-year mandatory minimum sentencing for firing a gun into the ground to protect a threatened friend, is going to get a new trial.  This article provides details, and you can read FAMM's response here.  From the article:
The judge found that the jury instructions in Thompson's original trial were misleading regarding the justifiable use of deadly and non-deadly force.
A new trial is the latest twist in a saga that has wrapped Thompson in controversy over the state's "10-20-Life" statutes. A jury convicted Thompson of four counts of aggravated assault with a firearm in a September 2009 shooting that occurred at a neighbor's home.
Clay County authorities said he fired at least two shots into the ground in the vicinity of a teenager and his friends after the boy got into a quarrel with his grandmother.
Prosecutors said he faced no serious threat when he fired the gun.
Thompson was originally sentenced to three years in jail by Circuit Judge John Skinner, who declared the "10-20-Life" statutes unconstitutional. Under that law, the judge was required to sentence Thompson to at least 20 years.
The State Attorney's Office appealed the sentence successfully, with the 1st District Court of Appeal ordering Skinner to resentence Thompson. The appellate court then removed Skinner and assigned Lester to the case.
Lester did sentence Thompson to the 20 years in March, but vacated that decision by throwing out the case this week.
Thompson's case has drawn the support of organizations like Families Against Mandatory Minimums, which argues that minimum sentences of 20 years are inhumane.
Newburn called on State Attorney Angela Corey to free Thompson.
"Ronald Thompson has already served three years in prison," Newburn said. "He has been punished enough.

Dorsey is Great -- But What About the Rest?

We're still elated with the U.S. Supreme Court's recent ruling in Dorsey v. United States, which held that the historic 2010 Fair Sentencing Act (FSA) reforms to federal mandatory minimum crack cocaine sentences do apply to so-called “pipeline” offenders – people who committed federal crack offenses before August 3, 2010, but were sentenced after that date.

Dorsey is a big win, but it does not benefit anyone sentenced before August 3, 2010 – in other words, it doesn’t make the FSA retroactive. That leaves us – and a lot of you – asking: don’t all the other federal crack offenders sentenced before the FSA became law deserve fair sentences, too?

We say yes! FAMM is still urging Congress to make the FSA retroactive. Justice shouldn’t depend on the date a person was sentenced.

Now is the perfect time to tell Congress to make the FSA retroactive. Click here to write to your U.S. representatives and tell them to support H.R. 2316, the Fair Sentencing Clarification Act. The bill is currently pending in the House Judiciary Committee and has a long way to go before it can become a law.

You and your loved ones can help by writing to your representatives today and telling them to finish what the U.S. Supreme Court started in Dorsey. Fairer, more rational crack sentences should be available to all federal prisoners sentenced under the old, unjust law.

Together, we can make this happen!

Tuesday, June 26, 2012

Law Profs: Investigate Pardon Attorney


Fifteen law professors from around the country have written a letter asking Congress to investigate astounding claims of misconduct against the Office of the Pardon Attorney (OPA), the tiny office that reviews federal clemency requests and provides advice to the president -- and apparently hasn't been doing a very good job of it.

Check out the professors' letter here, and read FAMM's response.

The professors raise an important point:

Virtually the only governmental check on the pardon power of the president is the ability of the Congress to investigate its use. While Congress properly plays no role in the actual consideration of clemency petitions, there is a duty of oversight relating to the operation of this office. Pursuant to that important duty, we urge you to convene a hearing at your earliest convenience, and will offer whatever help we can.
Advocacy organizations, congressmen, commutation recipients, and now law professors have called for an investigation.  That chorus of voices merits a response.

Miller Time: Mandatory Juve LWOP Unconstitutional

Yesterday the U.S. Supreme Court held that mandatory life without parole sentences for juveniles are unconstitutional because they are cruel and unusual punishment.

Justice Elena Kagan wrote the Court's opinion, and it's a worthwhile read even for the many of us who aren't lawyers.  FAMM issued a press release giving our thoughts about the opinion.  There is loads of superb reasoning in the case that could be used to challenge not just mandatory sentences for juveniles, but mandatory sentences for all offenders.  Check out this paragraph from Justice Kagan:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U. S., at ___ (slip op., at 27) (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U. S. ___, ___ (2011) (slip op., at 5–6) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Sounds a lot like what FAMM has been saying for 20 years, doesn't it?

But why should this line of logic only apply to juveniles? Mandatory minimums that produce an excessive sentence are cruel and unusual regardless of the person's age or offense. Justice demands sentences that fit -- and that requires individualized, not one-size-fits-all, punishments.

Friday, June 22, 2012

Good and Mad Reading for the Weekend

FAMM doesn't work directly on the issues of solitary confinement, incarceration of the mentally ill, prison privatization, and halfway houses, but we know they are issues near and dear to the hearts of many of our followers. There's been a lot of media on those issues lately, and you might have missed some of it.  Here are some articles -- some of which will put even more heat under your collar for the hot weekend ahead:

  • Private Prisons 101:  Who runs them, how much they profit, how many people they lock up.  These numbers from ProPublica might shock you.
  • The Abuse of Solitary Confinement:  this New York Times editorial covers some scary data presented at Tuesday's Senate hearing on the issue (80,000 prisoners held in isolation nationwide!), and calls for limiting the use of segregation.
  • New Jersey halfway houses:  As big as some prisons, privately-run halfway houses have racked up a disturbing record of escapes in recent years, and some of them have eyebrow-raising connections to the governor.  It's a good reminder to sentencing reformers:  if we are going to use alternatives to incarceration to reduce prison populations and costs over the long-term, we should make sure they are both cost-effective and accountable to the public -- starting with keeping the public safe.  We should also make sure those alternatives are used for the right kinds of offenders and provide them with the services they need.  For an interesting economic analysis of what may be driving prison and halfway house privatization (and whether it actually saves governments money), check out this column from The New York Times.
  • Mentally ill prisoners at the toughest prison in America:  This Atlantic article describes a lawsuit challenging the conditions and treatment of prisoners at the "Supermax," ADX-Florence, Colorado. It reminds all of us taxpayers:  "The Bureau of Prisons is not permitted to treat men like animals no matter what they have done." Warning:  it isn't a cheerful read.

Thursday, June 21, 2012

Big Crack Win at Supreme Court!

Today the U.S. Supreme Court released it's opinion in the case of Dorsey v. United States, which answers a pesky question left over after the 2010 Fair Sentencing Act (FSA) increased the amounts of crack cocaine that trigger the federal mandatory minimum sentences for those crimes:  if you committed your federal crack crime before the FSA became law, but were sentenced after that date, does the old law or the new one apply to you?

The Court's answer is a big win for these so-called "pipeline" crack defendants:  they get the benefit of the new law, the FSA!  Which means shorter sentences than they would have gotten under the old law.  This ruling may also help out some pipeline crack offenders who were sentenced under the career offender guideline.

In other words, we won!  FAMM and the ACLU filed a "friend of the court" brief urging the Court to do the right thing and apply the FSA to pipeline cases -- and it did.  For years, public and private criminal defense lawyers across the country have been carrying the torch, arguing that pipeline defendants should benefit from the FSA.  This court victory would not have been possible without their years of advocacy and hard work, and we applaud them.

The full opinion, which was decided in a 5-4 vote, is available online here.

If you or a loved one are a pipeline defendant (you committed a federal crack offense before August 3, 2010, but were sentenced for that offense after August 3, 2010, and you were not sentenced under the FSA), you should talk to a lawyer about what your rights might be and whether you are entitled to a lower sentence.  Remember:  FAMM can't help you get a sentence reduction or give you legal advice!  Call those lawyers!

Wednesday, June 20, 2012

What "Inside" Means: Solitary Confinement under Scrutiny

It's not exactly sentencing-related, but we still think it's worth commenting on, because so many of FAMM's supporters deal with it:  solitary confinement, also known by the euphemism "segregation."  It's used far and wide, in state prisons and federal ones, and thousands are subjected to it each year, sometimes for lengthy periods of time.  

Yesterday, the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights held a historic hearing -- the first ever -- on the use of solitary confinement.  You can read the written testimony of the speakers and watch a webcast of the hearing at this link.

Also check out this moving piece from The Hill, by Justice Fellowship's Pat Nolan.  It is encouraging and inspiring to see people of faith taking the lead against the use of lengthy solitary confinement:
Today, we will join hundreds of people of faith across the nation to fast for 23 hours, symbolizing the 23 hours per day that tens of thousands of prisoners, inmates, and detainees, are warehoused in solitary confinement. As we have seen in recent prisoner hunger strikes in California and Virginia, refusing food is one of the few means prisoners have to protest their conditions in solitary confinement. We will fast and pray for divine intervention that “drives out fear.” It is fear, rather than evidence-based best practices, that has led to an explosion in America’s use of solitary confinement over the past several decades.
At noon Tuesday, we will break our fast immediately after the first-ever Congressional hearing on solitary confinement. The Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is, like a growing number of states across the nation, reassessing this harmful, costly, and ineffective practice. As people of faith, we are grateful.
Although the particular conditions in “segregation” vary depending on the facility, individuals are typically locked down 23 or 24 hours a day in small cells with no natural light and no meaningful contact with staff or other prisoners. Inmates may be allowed an hour of “recreation” (alone) in a caged pen. We confine people in these isolated conditions for weeks, years, even decades on end. Research consistently demonstrates that the psychological effects, particularly among children and the mentally ill, are devastating. Even those who enter solitary confinement without pre-existing mental illness have shown symptoms such as anxiety, nervousness, and heart palpitations. Some experience hallucinations, perceptual distortions, and suicidal ideation.

From 1995 to 2000, the growth rate of segregation units significantly surpassed the prison growth rate overall: 40% compared to 28%. Prolonged solitary confinement has become a default management tool, not only as a response to violent behavior, but exceedingly as routine practice for minor rule infractions, involuntary protection, and as a means of managing difficult inmates, particularly those with mental illness.

Supporting responsible limits to solitary confinement is not about whether individuals convicted of certain crimes deserve to be sent to prison. Rather, it’s about opposing treatment that is so severe that it violates our values as a nation, as people of faith, and as fellow human beings.
As we so often say on this blog (like here and here), for those of us who have no experience or encounters with prisons, we don't understand what incarceration really means.  For too many prisoners, it can mean crushing periods of traumatizing solitude.  People who break the law do deserve punishment -- but they do not deserve to be broken beyond repair.  It doesn't serve the prisoner's interests -- or society's when that person is (almost always) released later on.

Lawmakers should keep this in mind when creating sentencing laws.  Prison can mean being physically broken, through rape.  It can also mean being mentally, emotionally, psychologically, and spiritually broken, through solitary confinement.  We should be extremely careful when deciding who we send to prison and for how long -- and that decision is best left to judges who see the offenders up close, not legislatures who never lay eyes on them.

Video: Ronald Thompson and Florida Injustice

Check out this video from Big Voices Media of FAMM Florida Project Director Greg Newburn explaining how mandatory minimum sentences can produce extremely unjust and illogical punishments -- even in cases where guns are used.  He discusses the case of Ronald Thompson, serving a 20-year sentence for protecting a neighbor.  You can read more about Thompson's saga here.

Rand Paul vs. Mandatory Minimums

Kentucky Senator Rand Paul discusses his opposition to mandatory minimum sentences in the video below.  He's not soft on crime -- he understands how these one-size-fits-all laws can send the wrong people to prison for too long, thwarting justice (and taxpayer wallets).  Check it out:


Tuesday, June 19, 2012

How a Mexican Drug Cartel Makes its Billions

That's the subject of this lengthy but fascinating cover story from The New York Times Magazine, which describes the empire of the Sinaloa drug cartel in Mexico. The organization is run by Joaquin Guzman, also known as El Chapo, and he has more than a few tricks up his sleeve when it comes to getting drugs into the U.S.'s hungry drug market.  It's not just trains, planes, and automobiles for this kingpin -- other infamous methods include dune buggies, fishing boats, tunnels under the border and, to get (literally) over our multi-million dollar border fences, catapults that shoot bales of marijuana into the States.

All of which begs the question:  What do we think we're achieving by giving excessive mandatory prison sentences to all the street-level dealers, seller/addicts, middlemen, money counters, mules, cooks, and bag handlers (and their complicit wives and girlfriends) who stand between El Chapo and the average American drug user?

For 30 years, we've been using a tool -- mandatory minimum drug sentences -- that we have hoped would scare people off of the drug trade and out of drug use.  It hasn't worked.  The policy is ineffective, expensive, and not at all innovative.  If stopping an organization like Chapo's is our real goal, we need to come up with something better (suggestions:  no mandatory sentences, more drug treatment and cost-effective punishment options for the small fish we seem to be catching, and re-focusing federal efforts on the whales like Chapo).  Long mandatory prison sentences haven't done the trick, and are creating enormous collateral costs -- both fiscal and human -- in the process.  Here's the article's grim conclusion:
One thing Chapo has always done is innovate. Even as he engages in violent brinkmanship along the border, the cartel is expanding to new markets in Europe, where a kilo of cocaine can sell for three times what it does in the U.S., and in Australia, where authorities believe that Chapo is now a major cocaine supplier. There are also indications that the cartel is exploring opportunities in Southeast Asia, China and Japan — places Chapo and Martínez first visited as younger men. And Chapo’s great comparative advantage still lies along that fraught boundary between Mexico and the United States. Even if the kingpin is killed or captured, one of his associates will quite likely take his place, and the smuggling infrastructure that Chapo created will endure, channeling the product, reaping the profits and feeding, with barely a blip in service, the enduring demand on this side of the border — what the historian Héctor Aguilar Camín once referred to as “the insatiable North American nose.”

Monday, June 18, 2012

A Crime Against Taxpayers

The latest 10-20-life debacle for a "stand your ground" case in Florida has been getting lots of media attention.  If you haven't been keeping tabs on the plight of Ronald Thompson, who is serving a mandatory 20-year prison sentence for firing a gun into the ground to protect a threatened neighbor, check out this article from the Gainesville Sun.

How atrocious is this mandatory minimum sentence?  This Gainesville Sun editorial calls it "a double crime: A crime against Thompson and a crime against Florida taxpayers."  Here is more:
As The Sun reported on Friday, "Thompson is nearly blind, diabetic and has had multiple heart surgeries. In the past few years, since being imprisoned, he has had surgery on his prostate and to remove tumors from his face."
Thompson's only previous crime: A DUI more than a decade earlier.
Thompson is appealing his sentence. Coincidentally, his story appeared in The Sun the same week that the American Civil Liberties Union released a report indicating that mandatory sentencing laws are slowly turning the nation's prisons into expensive geriatric wards.
The cost of caring for elderly prisoners now runs to more than $16 billion a year, the report said.
This column from the Tampa Bay Times pinpoints how senseless, unintended consequences -- like paying millions to lock Thompson up for two decades -- are the result when legislators want to sound tough on crime and pass "knee-jerk legislation."

Wouldn't it be great to have an election year when lawmakers act smart on crime and pass legislation that gets rid of mandatory minimum sentences and saves taxpayers loads of money?

Wednesday, June 13, 2012

New report highlights cost of keeping elderly in prison

The ACLU today released a comprehensive new report titled, "At America's Expense: The Mass Incarceration of the Elderly." The report shines a light on the skyrocketing number of elderly inmates in federal and state prisons and questions whether the public safety benefit justifies the high economic cost. (Spoiler alert: It doesn't.) From the report:


The United States keeps elderly men and women locked up despite an abundance of evidence demonstrating that recidivism drops dramatically with age.  For example, in New York, only 7% of prisoners released from prison at ages 50-64 returned to prison for new convictions within three years.  That number drops to 4% for prisoners age 65 and older. In contrast, this number is 16% for prisoners released at age 49 and younger. Further, most aging prisoners are not incarcerated for murder, but are in prison for low-level crimes. For example, in Texas, 65% of prisoners age 50 and older are incarcerated for nonviolent drug, property, and other nonviolent crimes.  This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s.  Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.


In addition to detailing this growing problem, the report proposes some tangible solutions for policymakers, including - our favorite - eliminating mandatory minimum sentences. The 100+ page report is accompanied by a slideshow and a short video. Check it out.


Friday, June 8, 2012

What do the TSA and Mandatory Sentences Have in Common?

They both treat everyone the same -- for better or worse.  

Ronald Thompson is an example of the "for worse," and FAMM President Julie Stewart discusses his case in this new post at The Huffington Post:
TSA's passenger screening policy is not the only example of the government's moronic and evidence-free allegiance to uniformity. Reflect on mandatory minimum sentencing laws, for a moment. If you do not think they produce the same absurdities as TSA's busy hands, then you need to know the story of Ronald Thompson.
Ronald Thompson is a disabled veteran who spent 14 years in the Army. After his service, Thompson remained active in veterans' affairs. In addition to acting as a Deputy Representative for AMVETS, Thompson accumulated more than 5,000 hours volunteering at the VA hospital in Lake City, Florida helping other retired vets with their rehabilitation.
Thompson was 62 years old in September 2009 when he visited a friend of his, an elderly woman in Keystone Heights, Florida, at the woman's daughter's home. During his visit, his friend's 17-year-old grandson, who had been violent toward her in the past, came by with three friends and wanted to go into his mother's home. Having been instructed by her daughter not to let him into the house, Thompson's friend refused them entry. Her grandson began yelling and cursing at his grandmother. Events escalated to the point where Mr. Thompson felt his friend was in danger. He grabbed his pistol (for which he had a conceal-carry license) and fired two warning shots into the ground to scare off the 17-year-old.
Enter the TSA... I mean, the State of Florida. Florida has a strict mandatory minimum sentencing law for crimes committed with a gun. Called the 10-20-Life law, felons who commit crimes while carrying a gun get an automatic 10 years in prison. If they discharge the gun, they get 20. And if their shot hits and harms a victim, they get a sentence of 25 years to life.
The law obviously wasn't directed at people like Thompson, just as TSA pat-downs weren't aimed at grandmas in wheelchairs.  But that's the problem with inflexible mandatory minimum sentencing laws:  they just can't make the distinctions that really matter.

Judges can, though, and they should be allowed to.

Tidbits in a Slow News Week

It's been a pretty slow week for sentencing news, but here are a few interesting things we scrounged up:

  • This New York Times article describes New Mexico's serious problems with prescription drug overdoses.  Note that none of the experts interviewed recommend solving the problem with harsher sentencing laws.
  • Only 44% of Americans in a new poll approve of the job the U.S. Supreme Court is doing.  We know from past polling that people overwhelmingly prefer judges over Congress when it comes to making sentencing decisions; the low approval for the justices is apparently linked to the upcoming decision on the new health care law and a view that the  high court has become too political since Bush v. Gore.
  • Compare the 23-year sentence (via plea agreement) of a Jamaican drug lord who ran a conspiracy involving 200 foot soldiers and sparked a manhunt that led to 70 deaths with any number of harsher sentences over at our website.  Make sense to you?  Yeah, we didn't think so.

Wednesday, June 6, 2012

Federal Sentences for Big Fish Only

This Tampa Bay Times editorial calls on the Obama administration to rein in federal prosecutors who are charging small-fry drug offenders with crimes carrying mandatory sentences that Congress intended for kingpins and large-scale traffickers.
...federal prosecutors have become too enamored of the power they hold through this unfairly punitive [mandatory minimum] statute that allows them to bludgeon low-level defendants into cooperation. In fiscal year 2011, more than 74 percent of federal crack cocaine defendants faced a mandatory minimum sentence. Yet only 5.4 percent of them directed or managed an aspect of the drug business, according to the U.S. Sentencing Commission.
States, including Florida, have moved toward using drug courts and diversion programs for low-level, nonviolent drug criminals. Evidence demonstrates the programs reduce recidivism and give addicts an opportunity to live productive lives. But the federal system is not advancing apace. The Obama administration can change this, reduce the burden on the courts and the prisons, and save taxpayers money.
Because this is a Florida editorial, I find this a fitting place to mention my test for whether a drug offender should land in federal court.  I call it the Miami Vice test.  If your drug activity isn't boating in big, Miami Vice-episode-worthy loads of drugs to a port or carting such loads across a border, you probably shouldn't be prosecuted in federal courts.  Let the feds handle the whales, and leave the minnows to the states.

-- Stowe

Yes, Sentences Really Have Gotten Longer

It's not just our imagination: people are spending more time in prison now than they were 20 years ago, and  this new report from the Pew Center on the States proves it, analyzing the amount of prison time served for various crimes in 35 states around the country. (See how your state measured up here.)

As lawmakers have passed harsher sentencing laws over the last few decades, time served has increased -- along with prison populations and costs. The worst offenders include Florida:

Although nearly every state increased length of stay during the past two decades, the overall change varied widely among states. In a few states, time served grew rapidly between 1990 and 2009, among them Florida (166 percent [increase in time served]), Virginia (91 percent), North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced time served, including Illinois (down 25 percent) and South Dakota (down 24 percent). Among prisoners released from reporting states in 2009, Michigan had the longest average time served, at 4.3 years, followed closely by Pennsylvania (3.8 years). South Dakota had the lowest average time served at 1.3 years, followed by Tennessee (1.9 years). 
The growth in time served was remarkably similar across crime types. Offenders released in 2009 served:
  • For drug crimes: 2.2 years, up from 1.6 years in 1990 (a 36 percent increase)
  • For property crimes: 2.3 years up from 1.8 years in 1990 (a 24 percent increase)
  • For violent crimes: 5.0 years up from 3.7 years in 1990 (a 37 percent increase)
Again, the national numbers mask large interstate variation. For violent crimes, Florida led the way among states with a 137 percent increase in length of stay, while prison stays for New York’s violent inmates rose only 24 percent. Property offenders in nine of 35 states served less time on average in the last available year of data compared with 1990, even as those in Georgia, Florida, Virginia, Oklahoma, and West Virginia saw average  increases of more than a year. States such as Arkansas, Florida, and Oklahoma more than doubled average time served by drug offenders, even as Illinois, Missouri, New York, Tennessee, and Nevada cut average time served for the same group.
The additional cost to states of these increases in time served:  $10 billion.

And here's the worst part:  there's little or no evidence that locking most people up longer actually keeps us safer. The report looks at Maryland, Michigan, and Florida and concludes that "a significant portion of the state prison populations could have been released sooner with no impact on public safety" (see page 36).

Mandatory minimum sentences virtually guarantee that many people will spend too much time in prison -- and cost taxpayers more than any public safety benefit they're reaping. This is not a smart or safe way to punish. We can and must do better.

Tuesday, June 5, 2012

Two warning shots = two decades in prison for Florida vet

After learning about the cases of Erik Weyant, Orville Lee Wollard, and, just last month, Marissa Alexander, we thought we had seen the most outrageous consequences of Florida's 10-20-Life gun sentencing law. We were wrong. Meet Ronald Thompson, a disabled veteran who was sentenced to 20 years for firing two warning shots into the ground to protect his elderly friend.

Thompson's sentence is so disturbing that FAMM's Florida project director Greg Newburn is calling on Gov. Scott's Stand Your Ground Task Force, initiated in the wake of Trayvon Martin's killing, to examine the 10-20-Life law as part of its review. From FAMM's press release today:

FAMM Florida Project Director Greg Newburn called on Governor Rick Scott’s “Task Force on Citizen Safety and Protection” to include Florida’s “10-20-Life” gun sentencing law in their review, pointing to an extraordinary new case as evidence of the need for reform. The Task Force, which was created by the governor to review Florida’s “Stand Your Ground” law, is scheduled to meet next on June 12 in Sanford, FL. 

“If the 10-20-Life gun law is not reformed, the right to of law-abiding Floridians to practice self-defense will be chilled by the threat of decades in prison. That’s why we believe no review of Stand Your Ground will be complete without a hard look at 10-20-Life,” Newburn said.   

Newburn pointed to the particularly disturbing case of Ronald Thompson as evidence for the need for reform of 10-20-Life. Thompson is a fully disabled veteran with 14 years of service in the U.S. Army. After leaving the military, Thompson accumulated more than 5,000 hours volunteering at the Lake City VA hospital and as a Deputy Representative of AMVETS.   

In September 2009, Thompson was visiting an elderly friend in Keystone Heights, FL when the friend’s 17-year-old grandson and his friends came home and demanded entry into the family home. Acting at the direction of the boy’s mother, Thompson’s friend told the boy he was not permitted to enter. Her refusal prompted an angry outburst by the 17-year-old. Fearing that his friend was being threatened, Thompson, a lawful gun owner, fired two warning shots into the ground to scare away the boy, who left. The judge presiding over the case concluded that neither shot was intended to hit the boy.   

Despite the fact that no one was injured, Thompson was charged with four counts of aggravated assault by State Attorney Angela Corey. Ms. Corey recently prosecuted Marissa Alexander in another controversial case that triggered Florida’s mandatory gun sentencing law. Like Ms. Alexander, Mr. Thompson rejected a plea offer of three years; he believed he was legally entitled to protect his friend from physical danger. In both cases, Stand Your Ground defenses were denied - in Ms. Alexander’s case by a judge, in Mr. Thompson’s by the jury.   

After Mr. Thompson was found guilty, his sentencing judge, Judge John Skinner, refused to impose the 20-year mandatory prison sentence called for by the 10-20-Life law, declaring the sentence “a crime in itself” and unconstitutional under Florida’s Constitution. Ms. Corey’s office appealed the sentence, and an appellate court imposed the 20-year mandatory minimum.   

Mr. Thompson’s poor health has worsened since he began his two-decade prison sentence. According to Virginia Caldwell, Mr. Thompson’s sister, he has diabetes and high blood pressure, and has had a heart attack. He has also had prostate surgery and two surgeries to remove tumors from his face. Further, Thompson is nearly blind and walks with a cane. Ms. Caldwell says that while most of his health problems were under control before he went to prison, today “he looks like a holocaust victim.” Though Mr. Thompson is not due to be released from prison for 17 years, Ms. Caldwell told FAMM that she does not expect Thompson to live another six months. Mr. Thompson’s wife passed away last year.   

“Ronald Thompson acted negligently, and a jury concluded that he violated the letter of the law. But sending him to prison for 20 years - despite his decades of service to his country and community and despite the fact that no one was hurt - is a shocking travesty of justice,” said Newburn. “What former state senator Victor Crist, the author of the 10-20-Life law said about Ms. Alexander’s case applies here: this is not the type of case the law was meant to cover. In fact, the great irony of 10-20-Life is that people who think they're innocent of the crime take their chances at trial, and they get the really harsh prison sentences. People who know they are guilty take a plea deal and get out much earlier. So the law certainly isn't working the way it was intended.” 

Monday, June 4, 2012

"No Passion for Punishment"

We've often heard judges say, on panels and at conferences and before the U.S. Sentencing Commission and Congress, that the hardest part of their jobs is sentencing.  An excellent article from The Washington Post tells the story of Judge Ricardo Urbina, a federal judge for the District of Columbia who is retiring partly because that sentencing burden has been so heavy.

For Urbina, sentencing has always been filled with stress and doubt — of agonizingly weighing the crime against the defendant’s past, of worrying about what message to send to the public and of feeling that he was never given the proper tools to rehabilitate offenders. So, after 31 years on the local and D.C. federal bench, of sitting in judgment of scam artists, burglars, corrupt government officials and murderers, the judge retired last month, explaining that a prime reason he left a job he loved was that he had simply grown too fatigued of sentencing. ...
“I do not have a passion for punishment,” he said, a statement that helps explain why he is one of the more lenient sentencers on the D.C. federal bench, according to statistics. “If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.”
Prison surely rehabilitates some people, but there are other cost-effective tools out there that most federal judges simply never get the option to use, especially when a mandatory minimum sentence applies.  Last year in the federal system, 87% of all federal offenders got prison-only punishments.  In the Post's story, the woman Judge Urbina sentences gets a non-prison sentence.  Not everyone is so fortunate, and federal judges like Judge Urbina do not always have the flexibility to give punishments that make sense, cost less, and rehabilitate.

A Jury Draws a Line

That's the title of this New York Times editorial praising both jury and judge in the remarkable federal sentencing of defendant Rodney Gurley.  You can read Judge William Young's 51-page opinion in the case, courtesy of our friend Doug Berman over at Sentencing Law and Policy.

As many of you know, drug quantity is everything in the federal system -- how much drugs and what kind determine the mandatory minimum sentence that applies.  And often, police and prosecutors accuse people of being involved with more drugs than they actually might have seen, touched, sold, or known about (particularly when the person is involved in a drug conspiracy, with lots of others involved).

The Times editorial sums up nicely the facts of the Gurley case and why it is such an anomaly:
Rodney Gurley faced a mandatory minimum sentence of 10 years in federal prison for possession of 28 or more grams of crack cocaine with an intent to distribute it because he had previously been convicted of a felony.
The police found 32 grams in the apartment where he was arrested, but a federal jury in Boston found that the amount of crack “properly attributable” to Mr. Gurley did not exceed 28 grams. Relying on the jury for guidance, Federal District Judge William Young sensibly imposed a sentence of 30 months. That riled the Justice Department, which insisted it was entitled to have the judge, not the jury, decide factors in sentencing and that Mr. Gurley should have gotten the 10-year minimum. The government has appealed the sentence to the United States Court of Appeals for the First Circuit. ...
The government’s view in this case is that since the police found 32 grams of cocaine, Judge Young should have imposed the longer term. In his recent sentencing opinion, Judge Young explained that his discretion was limited by the jury’s finding once the government agreed that the court should ask the jury to decide the cocaine amount at issue as “a factual question central to the defendant’s culpability.”
Since federal mandatory minimum sentences were enacted in 1986 and prosecutors began to “run our federal criminal justice system,” as the judge said, much of the debate has focused on the reduction of judges’ power in sentencing. The Booker case and others have restored some of it, but there remain excessive mandatory minimums, which Congress should rescind.
What a concept!  To be sentenced according to the facts a jury actually found you guilty of -- not what a prosecutor says you did.  To have a judge decide your sentence after looking at all of the facts of your case and who you are -- not just slap on a one-size-fits-all punishment established by a legislature that's never laid eyes on you.  Gee...it kind of sounds like a ... fair and individualized sentencing system!

That's the kind of system FAMM's been fighting for since 1991.

Friday, June 1, 2012

Fixing the Facade of Concern

That's the title of this piece over at The Huffington Post by FAMM special projects director Molly Gill, calling on President Obama to fix the pardon attorney's office and commute Clarence Aaron's sentence.
How could President Obama serve justice, show mercy, and correct appalling wrongdoing by a government official -- all without the approval of Congress?
He could commute the sentence of Clarence Aaron, a model prisoner and first-time, nonviolent drug offender serving life without parole in federal prison for a stupid decision he made 20 years ago. Commuting Aaron's sentence should be one of the easiest decisions President Obama ever makes, especially because Aaron's commutation, supported by his judge and prosecutor, was derailed during the last administration by current U.S. pardon attorney Ronald Rodgers.
Recent reporting from ProPublica's Dafna Linzer reveals that in 2008, the White House, lacking positive recommendations for commutations from the pardon attorney, looked through denied applications and found Clarence Aaron's petition. The White House asked for a new review of his case. Rodgers misrepresented key facts about the prosecutor and judge's support for Aaron's commutation to then-associate White House counsel Kenneth Lee. Those misstatements led the White House, which had been very interested in the case, to deny Aaron's petition. Aaron reapplied; that application has been pending at the pardon attorney's office since 2010.
Unfortunately, this case is only a symptom of a much deeper infection. At a panel at the National Press Club last week, Linzer and Sam Morison, an attorney who spent 13 years at the pardon attorney's office, described how that office has abandoned its mission of providing unbiased, objective advice to the president on each case. The office recommends that virtually every commutation request -- no matter how unjust the sentence or deserving the applicant -- be denied. Staff jokingly nicknamed the pardon attorney's office the "Façade of Concern," Morison said.
Data support Morison's claims. During the Bush administration, the pardon attorney gave favorable recommendations in only six of 8,600 commutation requests; in three of those, the prisoners had only a few months remaining on their sentences. In the last four years, 7,000 requests have been denied, at the rate of seven petitions a day. Most cases, Morison says, never get an individualized, meaningful review.
For virtually all federal prisoners, a presidential commutation is the only path out of prison early.  Commutations do justice, show mercy, affirm the rehabilitation efforts of prisoners, give people fresh starts, reunite families, save taxpayers the cost of incarcerating people who are no longer dangerous ... we could go on and on.  President Obama should grant more commutations -- and the key to getting started is making sure the process actually works.

Good and Mad Reading for the Weekend

Here at FAMM, we've always known that U.S. sentencing laws are some of the harshest in the world.  Now we have a report to back us up:  it's called Cruel and Unusual: U.S. Sentencing Practices in a Global Context, from the University of San Francisco School of Law's Center for Law and Global Justice.

What makes us such excessive punishers? Compared with the rest of the world, we use more mandatory minimum, habitual offender, and life without parole sentences.

The mandatory minimum section starts on page 42. While our mandatory minimums are by no means unique, they are, the report finds, less yielding than most others around the world:
Of 168 countries surveyed, 137 countries have a minimum sentence requirement. This is a hallmark of many civil law systems, which establish sentencing ranges for each crime. While most countries have mandatory minimums, many of them allow lowering the minimum for mitigation purposes. Thirty-one countries do not have minimums or they allow for judicial discretion to lower the sentence below the established minimum.

The severity of mandatory minimums in the United States is more profound when contrasted with other countries. Under U.S. federal law, a criminal defendant who is convicted of possession of 1 kilogram of heroin, or 5 kilos of cocaine will receive a mandatory 10 year sentence, while the same offender in Britain would receive no more than 6 months’ imprisonment in a British summary trial.

In 1987, the Supreme Court of Canada found a mandatory minimum sentence of 7 years for importing narcotics to constitute cruel and unusual punishment under Section 12 of the Charter of Rights and Freedoms.319 The Court ultimately concluded that,”[t]he seven-year minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. Its arbitrary imposition will inevitably result in some cases in a legislatively ordained grossly disproportionate sentence.”
Wouldn't we love to hear the U.S. Supreme Court make the same ruling here!