Monday, July 30, 2012

Massachusetts Monday: The Governor Moves!

We promised to keep you updated on how sentencing reform legislation (and a new habitual offender provision) were moving along in Massachusetts.  The state legislature made its choice; now, it's the governor's turn to respond.  And he has!

FAMM applauds Gov. Deval Patrick for sending the sentencing bill back to the Legislature with a “judicial discretion” amendment. The amendment would allow judges to make an habitual offender sentenced to a maximum term of imprisonment eligible for parole after serving two-thirds of the sentence (or after 25 years for life sentences) when it is in the “interest of justice” and there are “substantial and compelling reasons” to do so.

FAMM applauds Gov. Patrick for providing leadership on this critical sentencing issue. We urge the Legislature to pass the amendment and send the improved bill back to the Governor for his signature. The Governor’s amendment would allow judges to make someone who receives a maximum "third strike" sentence eligible for parole after serving two-thirds of the sentence if there are "substantial and compelling reasons" to do so. In no way does this amendment gut the bill. Habitual offenders would still receive the lengthiest sentence possible for their third offense. But one-size-fits-all sentences of any kind will always result in unfair sentences for some. With maximum sentences, including life without parole, the stakes are even higher. Eligibility for parole offers at least some relief from a maximum sentence when that sentence is excessive.

For more information on Massachusetts’ mandatory sentencing laws, or FAMM’s perspective on the new sentencing law, please visit FAMM’s website, or contact me.

Barb Dougan, bdougan@famm.org
FAMM Massachusetts Project Director

Wednesday, July 25, 2012

Conservatives Coming Around?

Michael Barone of The Examiner has an excellent column today discussing growing conservative support for smarter, more cost-effective punishment policies.  He compares the slowly turning tide of conservative opinion on crime to the liberal backtracking on gun control:
Only a few lonely media outlets responded to the Aurora mall murders by calling for stricter gun control measures. President Obama and Colorado Gov. John Hickenlooper made eloquent statements, as did Mitt Romney, but neither the two Democrats nor the Republican called for changes in gun laws.
Many conservatives and gun rights advocates took satisfaction from this, with some cause. Congressional Democrats have mostly given up the fight for gun control after observing the defeats of many colleagues in 1994 and of Al Gore in 2000. ...
But it is not only liberals who have changed their stance on an issue related to violence and crime. Conservatives in increasing numbers are moving away from their decades-long support for long prison terms for criminals. ...
[L]aws requiring mandatory minimum sentences have resulted in lengthy terms for many who are likely to be no threat to society. This has led conservatives like anti-tax crusader Grover Norquist to endorse the Families Against Mandatory Minimums organization.
It seems particularly unfair to many conservatives as well as to liberals that judges must sentence people possessing small amounts of marijuana to five-year terms when states with medical marijuana dispensaries have de facto legalized the substance.
Mandatory minimums for drug crimes aren't the only ones conservatives and liberals alike should be concerned about:  there are some pretty awful ones for offenses involving guns, too.  One gun statute requires stacking up 5-, 7-, 10-, and 25-year mandatory punishments back-to-back for multiple convictions -- even if those convictions all came out of the same series of events, and even if no one is actually hurt.  (Read about Weldon Angelos's 55-year prison term to see what we mean.)  Florida's mandatory minimums have locked up for decades many who defend themselves and others with guns.  (Read Orville Wollard's story as an example.)  These laws strip judges of the power to sort out the cases of the truly dangerous from those where the mandatory sentence makes no sense whatsoever.

One solution is a "safety valve" -- an exception that gives judges the ability to choose a punishment other than the mandatory minimum when justice, common sense, and public safety demand it. (People can still go to prison, just not for so long.) Currently, there is no "safety valve" for federal gun offenses carrying mandatory minimums.  There should be one, and lawmakers on both sides of the aisle should support it.  A safety valve isn't a Republican or a Democratic answer -- it's just a good solution to one-size-fits-all sentences that, like every one-size-fits-all policy, can produce absurd results.

Monday, July 23, 2012

Pay More, Get Less

1 in 104 adults in America is in prison.

1 in 14 dollars spent by states goes to prisons, totaling $52 billion per year.

1 in 2.3 people (43%) released from prison go back there within 3 years of their release.

Those shocking numbers come from a new infographic at the Pew Center on the States.

They tell a sobering story:  we lock up more people than anyone else in the world, and despite enjoying some of the lowest crime rates in history right now, a huge number of people are still going back to prison.

So, let's do the math:  enormous prison population, jaw-dropping costs (we spend more on prisons than we do on hospitals), yet little net gain of public safety.  Does this make any sense?

Read the full Pew report on the increase in sentence length and prison costs here, and leave a comment to tell us what you think about this madness.

Friday, July 20, 2012

Tell Gov. Patrick to Follow FAMM's Advice!

Yesterday afternoon the Mass. Senate passed the sentencing bill by a vote of 31 to 7. Just as when the House of Representatives passed the bill on Wednesday, Senate members could not offer any amendments; they could only vote "yes" or "no" on the entire bill. As we reported yesterday, the bill includes eligibility for parole, work release and earned good time for some drug offenders now in prison. Unfortunately, it also includes the new "three strikes" law. Click here for FAMM's fact sheet on the bill.

What happens next & how you can help. The bill now goes to the Governor. He has 10 days to do one of three things: 1) sign the bill into law; 2) send it back to the Legislature with amendments making changes that he wants; or 3) veto the entire bill. FAMM is sending the Governor suggested amendments that would improve both the mandatory minimum reforms and the habitual offender/three strikes law. We need your help to convince him to use our amendments! Click here to send a message to Gov. Patrick.

We will let you know what the Governor does. If he sends amendments to the Legislature, both the House and Senate would vote on whether to accept them or to reject them. The bill would then go back again to the Governor, to either sign or veto.

This part of the legislative process is both fast-moving and complicated. We're here to answer any questions that you may have.

Barbara J. Dougan
Massachusetts Project Director

Tweeting for Reform & More Clemency to Come?

There's a lot of follow-up media about the White House's new scrutiny of both Clarence Aaron's commutation effort and the failures of the Office of the Pardon Attorney.  Here are a few we were happy to see and read.

  • The Root focuses on the disturbing racial disparity among pardon recipients that "shocks the conscience."
  • Melissa Harris-Perry's blog continues its close coverage of the story.
  • Reason's blog covers the story, ending with this (perhaps cynical?) thought about whether President Obama will actually grant more commutations after the November election, as is being rumored:
Rather than implausibly hope that Obama the drug warrior will become Obama the reformer in a second term, perhaps those of us who are interested in ameliorating the injustice caused by the war on drugs should hope he loses the election, in which case he might use his last few months in office to accomplish some good.
We simply refuse to believe that the only safe time for a president to grant commutations is as a lame duck on the way out of the White House. Accuse us of being hopeless idealists, but there's no good reason President Obama should only grant commutations if he loses the November election. If he grants commutations to deserving, reformed people serving unjust punishments, that is all the cover he should need -- regardless of the election outcome. There will always be some naysayers. Let them naysay. Most people can recognize a grave injustice when they see it -- and Clarence Aaron's life-without-parole sentence isn't the only grave injustice out there. Fixing some of those injustices shows that the system is responding -- and that we are still a country that cares about fairness.

And finally, San Francisco Chronicle columnist and Clarence Aaron supporter Debra Saunders has found a way to get people involved in supporting Clarence's commutation effort:
The iron is hot, folks. Tweet @BarackObama and tell him to #FreeClarenceAaron.
You know you created that Twitter account for some reason, right?

Thursday, July 19, 2012

Massachusetts Reforms Move Forward!

The Massachusetts state legislature is moving on reforms to some of its mandatory minimum drug sentencing laws.  FAMM has been hard at work to get the best bills possible, and we're still working to get them passed.  Here's the full story.

On Tuesday evening, the legislative conference committee that has been working on a sentencing bill reported out a final bill, H.4286. The bill includes eligibility for parole, work release and earned good time for some drug offenders now in prison. Unfortunately, it also includes a new "three strikes" law.

Last night, the House of Representatives passed the bill by a vote of 139 to 14. House members could not offer any amendments; they could only vote "yes" or "no." These developments happened so quickly that we didn't have time to tell our members ahead of time.

What happens next? The bill now goes to the Senate, which is expected to consider the bill today. As with the House, the Senate can only vote "yes" or "no." We expect that the bill will pass in the Senate as well. It then will be sent to Gov. Patrick.

The Governor's response. The Governor will have 10 days to do one of three things: 1) sign the bill into law; 2) send it back to the Legislature with amendments making changes that he wants; or 3) veto the entire bill. FAMM will ask him to file amendments (option #2) to improve both the mandatory minimum reforms and the habitual offender/three strikes law. The Legislature can adopt the amendments or reject them.

Mandatory minimum reforms. The final bill includes the same reforms that were in earlier drafts of the bill (see our July 29 update for more details):

* Eligibility for parole, work release and earned good time for some drug offenders now in prison;
* Reduced mandatory minimums for some drug offenses;
* Increased drug weights for some trafficking offenses;
* School zones reduced to 300 feet;
* School zone law doesn't apply between midnight and 5 a.m.

Increased earned good time. The final bill includes the same increases that were in earlier drafts of the bill. Again, see our July 29 update for the details.

Habitual offenders/3 strikes. The final bill includes one improvement for habitual offenders, which we were very glad to see. For the section of the bill that can apply to drug offenders, someone can be prosecuted as an habitual offender only if the two prior felony convictions resulted in prison sentences of at least three years for each offense. If convicted of the third felony, he or she will receive the maximum sentence possible, but will be eligible for parole after serving two-thirds of the sentence.

The final bill also creates a new "three strikes" law, where all three convictions must be from a list of serious crimes. That list does not include any drug offenses. Third strikers will receive maximum sentences with no parole. One amendment that FAMM will ask the Governor to file would create a "safety valve" to allow a court to decide that one of the two prior felonies should not be considered a "strike."

We will let you know when the Senate votes. In the meantime, please let us know if you have any questions.

***Note:  The bill is not a law yet!  If it becomes law, it would only apply to people convicted in Massachusetts state courts, not to people convicted in federal courts or in any other state's courts.


Barbara J. Dougan
Massachusetts Project Director

Wednesday, July 18, 2012

Obama Administration Responds to Pardon Attorney Misconduct!

An exciting new article from ProPublica reporter Dafna Linzer reveals that the Obama administration is now responding to serious and disturbing claims of misconduct by the Office of the Pardon Attorney, which reviews and advises the president on commutation and pardon requests from federal prisoners.  FAMM is cautiously optimistic about this development -- read our full response here.

The Obama administration has asked for a fresh review of an Alabama federal inmate's commutation request and directed the Justice Department to conduct its first ever in-depth analysis of recommendations for presidential pardons, according to several officials and individuals involved.

The Office of Pardon Attorney has been at the center of growing controversy since December, when stories published by ProPublica and The Washington Post revealed a racial disparity in pardons. White applicants were four times more likely to receive presidential mercy than minorities. African Americans had the least chance of success.

A subsequent story published in May recounted the saga of Clarence Aaron, a first-time offender sentenced in 1993 to three life terms in prison for his role in a drug conspiracy. In 2008, the pardon attorney recommended that President George W. Bush deny Aaron's request for a commutation even though his application had the support of the prosecutor's office that tried him and the judge who sentenced him. The pardon attorney, Ronald L. Rodgers, did not fully disclose that information to the White House.

The handling of Aaron's case prompted widespread criticism that the pardon office-- which has rejected applications at an unprecedented pace under Rodgers--is not giving clemency requests proper consideration.

Aaron filed a new commutation request in 2010, which is pending. In the past two months, his cause has been taken up by members of Congress, law professors and prominent civil rights advocates, many of whom have called for a broader investigation of the pardon process.
Additionally, people who received commutations from Presidents Clinton and Bush asked the Obama Administration to grant more commutations and investigate the pardon attorney's office.

So, what is the administration doing?
  • Clarence Aaron's request will be reevaluated by the pardon attorney
  • Current Pardon Attorney Ronald Rodgers will not be involved in that review, and
  • The Bureau of Justice has been asked to "contract with an independent firm to conduct [a] pardons study" to get at the roots of that disturbing racial disparity.
We'll keep you updated if there are further developments in this story.

An Appealing New Rule Part II

The New York Times editorial I blogged about yesterday included a link to Stemming the Tide of Postconviction Waivers, by FAMM Litigation Advisory Board member Todd Bussert and longtime FAMM friend, Alan Ellis. It lays out the obvious and not so obvious pitfalls for defendants and defense counsel when prosecutors insist on post-conviction waivers.

Post-conviction waivers are especially nasty conditions from the government. Why? Because they insist that the defendant “abandon[] the unknown.” What does that mean? It means the government wants to force defendants to give up their right to challenge serious mistakes, not only those that might have already occurred but also those that will be made after they sign the waiver.

Let’s say a defendant waives her right to bring a habeas corpus challenge after she is convicted. She is agreeing that -- even if the attorney who represented her did such an appallingly poor job of lawyering that he violated her constitutional right to effective assistance of counsel and she would be entitled to having her conviction vacated (in essence, get a do-over with another lawyer) -- she gives up her right to ask a court to review his performance.


The kicker: the attorney who advises her to waive her rights is . . . the constitutionally deficient attorney.

Moreover, as Todd and Alan point out: 
[E]ven the most seasoned criminal defense attorney will struggle with the complexities and arcane jurisprudence of habeas corpus . . . . The cold reality is that most defendants do not comprehend, nor could they articulate, the array of claims that could potentially be brought through a direct appeal or [habeas corpus]. 
Conscientious defense lawyers of course recognize and confront this ethical dilemma. Defendants are constitutionally entitled to a lawyer who does not have competing interests. “Yet when reviewing and explaining a plea agreement that contains a [postconviction] waiver provision, defense counsel is put in the untenable position of having to render advice about [the] quality of legal representation to date . . . or .. . about the quality of” the lawyer’s representation that has not yet even occurred.

Stemming the Tide walks the reader through the best thinking in this area. It talks about how lawyers can help their clients avoid such waivers, make better informed decisions, and hopefully preserve their constitutional post-conviction rights.

Thank you Todd and Alan!

Mary Price
Vice President and General Counsel

Tuesday, July 17, 2012

Julie to Visit with John Stossel!

Set your DVRs! This week, FAMM president Julie Stewart is debating mandatory minimum sentencing laws on the Fox Business News program, The Stossel Show with John Stossel. The show will air on Thursday, July 19, at 9 p.m. EST.

Julie is taking on a former prosecutor who is in favor of some mandatory minimums. We know our fearless leader will have the upper hand in this argument – she has the facts and personal stories to back her up!

Longtime FAMM member Peter Ninemire will also be a guest on the Stossel Show. Peter served 11 years of a 24 ½ year federal prison sentence for marijuana. He will tell his story (including how he received a commutation of his sentence from President Clinton), how he discovered FAMM, and the inspiring things he has done since his release.

It’s going to be a great show and I hope you can watch it, and even participate by letting the Stossel Show know what you think about mandatory sentencing laws. During the program, post a message on John Stossel’s Facebook page or Twitter account, https://twitter.com/FBNStossel.

If you live in the New York area, you can attend the taping of the show tonight! Click here for details.

An Appealing New Ruling

This must-read NYT editorial is about an almost unheard of event: a federal judge’s rejection of a plea bargain. Judge John L. Kane of Colorado refused to accept the defendant’s plea of guilty, but not because he believed the defendant did not commit the offense. Rather, he could not endorse the appellate waiver (giving up the right to appeal) in the plea agreement.

Appellate waivers are all the rage in the prosecutorial community. Why would a defendant waive her constitutional right to appeal? Because the government insists on it as a condition of accepting the plea. Why do defendants care? Because the government frequently sweetens the deal, by agreeing to drop some of the charges and/or press for a lower sentence. This Times editorial calls it a process “close[] to coercion. Prosecutors regularly ‘overcharge’ defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence that the alleged crime would warrant or a guilty plea in exchange for a shorter sentence.”

So, hurray for Judge Kane. We hope, but do not expect, that his principled stand will convince the Attorney General to take a hard look at the shameful practice of forcing defendants to waive their constitutional rights of appeal when pleading guilty. Because, as this editorial points out, today “our system of pleas . . . looks more like a system of railroading.”

Mary Price

Vice President and General Counsel

Monday, July 16, 2012

A New Drug War ... on Prescription Drugs?

This New York Times article describes an increasing awareness that the drugs that sparked the War on Drugs may not be the ones that should be getting so much attention:
America’s drug problem is shifting from illicit substances like cocaine to abuse of prescription painkillers, a change that is forcing policy makers to re-examine the long and expensive strategy of trying to stop illegal drugs from entering the United States. ...
What has changed is Americans’ use of cocaine.
The most recent National Survey on Drug Use and Health found 1.5 million people who had used cocaine in the past month, down from two million in 2002 and, according to an earlier government survey, 5.8 million in the mid-1980s. (Methamphetamine use has also fallen in recent years, while heroin use is up somewhat, to 239,000 monthly users in 2010 from 213,000 in 2008.)
Some officials argue the cocaine decline shows that supply side efforts have worked, but experts note that prices in the United States have held mostly steady since the late ’80s, suggesting that decreasing demand is the main cause. Mark A. R. Kleiman, a professor of public policy at the University of California, Los Angeles, said that in the United States, cocaine has simply run its course among aging addicts. “What you’re recording,” he said, “is the rate at which they are dying or quitting.”
Now the drugs most likely to land Americans in emergency rooms cannot be interdicted. Studies show that prescription painkillers, and stimulants to a lesser extent, are the nation’s biggest drug problem. The same survey that identified 1.5 million cocaine users in 2010 found seven million users of “psychotherapeutics.” Of the 36,450 overdose deaths in the United States in 2008, 20,044 were from prescription painkillers, more than all illicit drugs combined.
And whereas cocaine and heroin have been concentrated in big cities, prescription drug abuse has spread nearly everywhere.
Historically, lawmakers pass mandatory minimum sentences in the hopes of scaring people off of the "drug du jour." Back in the 1980s, it was cocaine. Note that this article does not attribute the decrease in cocaine or meth use to longer, scarier sentences, but changes in drug use and preference. Now that the "drug du jour" appears to be something else, we hope lawmakers won't repeat their expensive mistake of the past by creating mandatory minimum sentences for prescription drugs. Those expensive, ineffective sentences don't do anything well in the War on Drugs -- except pack our prisons, cost taxpayers a fortune, and send too many of the wrong people to prison for too long.

Oh, and that Mexican drug war with all its violence? Still going, despite 30 years of mandatory sentencing policies.

Let's hope that this time around, with prescription drugs, our lawmakers have wisened up. No new mandatory minimum sentences for drugs -- any drugs -- period.

Thursday, July 12, 2012

Sentencing Nerd Red Alert!

It's not too late to give the U.S. Sentencing Commission a piece of your mind!

Every year, the Commission (which writes the federal sentencing guidelines, which apply in all federal criminal cases) decides which areas of federal sentencing it is going to make a priority over the next few years.  The Commission doesn't actually decide what to focus on, though, until it hears from the public.  If you want to chime in and tell the Commission to work on a particular area of the guidelines, you must get your letters and emails to them by July 23, 2012.

Read more about some of the areas the Commission is thinking of prioritizing, and what this all means and how you can help, by clicking here.

Republican Judges Use Advisory Guidelines, Too

It's not just Democrat-appointed federal judges like Judge Jack Weinstein who have a major beef with the extremely harsh sentences for federal child pornography possession crimes. At least one Republican-appointed judge doesn't like them much, either, as this Illinois case shows:
“(The guidelines) go from a sentence of two to three years to a sentence of seven to 10 years very, very quickly,” U.S. District Judge Philip Simon said during a sentencing hearing for Hammond resident Hugh Payne, 64. “I’m very troubled by that.”
Payne pleaded guilty earlier this year to one count of possession of child pornography, and federal sentencing guidelines say that the base range of imprisonment should have been about two to three years.
However, Payne’s range was increased to six to eight years because he used a computer for the crime, the pictures included children younger than 12 years old and some children were shown being constrained. A U.S. Supreme Court ruling, often referred to as Booker, made the guidelines advisory instead of mandatory for federal judges.
Fortunately, since this case did not involve a mandatory minimum sentence, Judge Simon was able to use his discretion and give the defendant a sentence that fit him and the crime. The short article does a nice job of summarizing Judge Simon's reasoning process, showing that he was neither crazy nor irresponsible in reaching his final decision:
Payne’s attorney, Paul Stracci, argued Wednesday that all of those enhancements [using a computer, etc.] show up in the vast majority of other child pornography possession crimes and that defendants are essentially punished twice. .... 
He also argued that studies show none of those are strong factors in predicting recidivism and asked that Payne, a Vietnam War veteran who has a number of health problems, receive no imprisonment.
[Judge] Simon, who said that this is the first such case he has overseen, rejected that, saying he thought the crime was serious enough to warrant a significant jail sentence. However, he said [he] was concerned about the additions of those enhancements, noting that the computer and young children enhancements are found in more than 90 percent of the cases.
“It’s the length of imprisonment that bothers me in this case,” Simon said.
He also said that he factored in Payne’s 42 years of work history, his medical problems and the fact that he was injured while fighting in the Vietnam War before sentencing Payne to 3 1/2 years in prison, about half of what the federal guidelines called for.
Judge Simon is a former federal prosecutor and was appointed by President George W. Bush in 2003. With that background, it's hard to accuse him of being some mamsy-pamsy, bleeding-heart, soft-on-crime judge who we can't trust to keep us safe (and 3 1/2 years isn't some slap on the wrist).

So ... could it be that child pornography possession sentences -- even under the advisory guidelines -- just don't always fit the individual and the crime in question? Could it be that sometimes they are over-the-top? Could it be that they are in need of some review by the U.S. Sentencing Commission? Could it be a good thing that the guidelines are advisory and let judges look the offender in the eye, consider all the facts, and settle on a sentence that makes sense, keeps us safe, and yet doesn't over-punish?

Yes, to all of the above.

Wednesday, July 11, 2012

Miss America: Voice for Kids of the Incarcerated

Yes, it's really true -- the current Miss America, Laura Kaeppeler, had a dad who was incarcerated.  And it changed her life so much that she's made it her platform as long as she wears the diamond tiara.

This Huffington Post piece describes how Kaeppeler is speaking out for prison reform and standing up for a segment of society that too few advocate for:  the families of prisoners.  From the article:

In a statement by Laura after her crowning as Miss Wisconsin in 2011, she announced, "Children of incarcerated parents are an invisible population, and tragically there is no one agency responsible for their welfare. Because of this experience, it has become my mission in life to help children overcome this adversity while understanding they are not alone and must never give up on themselves."
Lawmakers who support tough-sounding, lengthy prison terms -- and mandatory minimum prison sentences -- should stop and think about the children and families who will be impacted -- before they pass those laws.  Not all of those children grow up to become Miss America -- studies show that a lot of them instead follow their family members into prison.  Many children with incarcerated parents certainly need help to avoid that pattern, but such programming wouldn't be necessary if we instead used sentencing policies that keep families together whenever it is safe to do so.

Sentencing reform should be a big part of any plan to help the families and children of those who end up in the criminal justice system.

The Broken Promise of Compassionate Release

Compassionate release is a common-sense concept:  prisoners who pose no threat to the public and have compelling reasons to be released from prison and put on home confinement -- including prisoners who are sick or terminally ill -- should be.  But it rarely happens.  The federal prison system releases such a tiny number of sick, dying, extremely ill inmates each year that it's not exaggerating to call "compassionate release" a broken promise.  This YouTube video shares more:


It's heartbreaking stuff.  After decades of using so many harsh mandatory minimum prison sentences, we're watching a lot of prisoners get older -- and sicker.  Their age, infirmity, medical costs, and lack of danger are excellent reasons to let them go home to be treated or pass away, but simple humanity and compassion are better reasons to do it.

New BOP Blog Available

Todd Bussert, a criminal defense lawyer who also has a strong knowledge of how the federal prison system actually works (and sometimes doesn't) for inmates, has a new blog up:  Federal Prison & Post Conviction Blog.

For many federal prisoners and their families, the Bureau of Prisons (BOP) is a big, scary, labrynthine government agency, and navigating it can be more than a little intimidating. Understanding what the BOP is up to, how it operates, and the new rules and procedures it creates is surely helpful to those trying to get answers to common questions like "How does a prisoner get his medication? What do I do if my loved one is put in solitary confinement? How can prisoners get drug treatment in prison?  How does a prisoner get transferred closer to home?"

Here is Bussert's description of his goals for the blog:

In large measure, I see this blog as an outgrowth of my interest in helping others better understand how the BOP operates. To be clear, I do not, nor have I ever, work(ed) for the Bureau of Prisons. Also, I consider myself a defense attorney with particularized knowledge about the BOP, not a “prison consultant,” especially to the extent that term connotes one of the growing number of former federal prisoners who offer BOP advocacy services based on their “first-hand” knowledge or those whose marketing efforts target the fear that surrounds incarceration, specifically directed at “white-collar” offenders. While extremely conscious of the federal correctional system’s many shortcomings and the very real risks that prisoners face, I find that the sharing of accurate information to the widest array of interested parties offers the greatest benefit for all. I thus intend to use this blog as a vehicle to disseminate BOP-related developments (for example, the publication of a new program statement), as well as to comment on media accounts that highlight aspects of BOP’s policies in practice or to share program-related information that I may learn in the course of my practice. On occasion, I may also post about other issues of interest since my practice centers more generally on federal criminal defense, not merely prison issues.
We look forward to reading it.

Tuesday, July 10, 2012

Justice Department: Rule Your Own Roost!

Is the federal clemency system racially biased?  It's time for the Department of Justice to police its own Office of the Pardon Attorney and get some answers, argues FAMM President Julie Stewart over at The Crime Report in this op-ed today.
A recent panel discussion at the National Press Club, sponsored by Families Against Mandatory Minimums (FAMM) discussed allegations of corruption at the little-known Office of the Pardon Attorney (OPA) within the U.S. Department of Justice (DOJ).

Among the panelists was Dafna Linzer, the Pro Publica reporter whose dogged determination resulted in two front-page Washington Post stories on the OPA, including one that concluded that whites are four times as likely as non-whites to receive a presidential pardon, even when the circumstances of their crimes are roughly the same.

Seven months have passed since Ms. Linzer’s first expose was published. Yet neither the OPA nor the DOJ has responded publicly to its serious allegations of racial bias. When asked at FAMM’s briefing if she was surprised by DOJ’s public silence, Ms. Linzer observed that if the type of racial discrimination produced by the current pardon process were found at the state or local government level, DOJ would probably get involved and initiate an investigation.

“Yet here,” she said, “we have a case of contemporary race disparity happening within the Justice Department itself.

It’s time to get some answers.
Racial disparities in pardon grants are only one hair-raising allegation brought against the OPA in recent months, yet DOJ has publicly done and said nothing to fix that broken office.  This should be a top-priority area of concern for DOJ, partly because it has nothing to do with partisanship -- as Julie notes, both Republican and Democratic presidents have been frustrated and thwarted by OPA's inability or refusal to produce favorable recommendations on commutation and pardon requests.
The clemency power belongs solely to the President of the United States. If Presidents Bush and Obama believed every federal sentence handed down under their watch was the perfect length and that no ex-offender who served his time deserved a second chance, that would be their right. We know from Ms. Linzer’s reporting, however, that President Bush believed otherwise and sought to extend mercy to more offenders.

We also know that he ignored the OPA in a couple of cases and granted clemency when the office hadn’t recommended it. I refuse to believe that President Obama, who criticized mandatory minimum sentences during the 2008 campaign and signed into law the Fair Sentencing Act to reduce sentences for crack cocaine offenses, is any less compassionate.

The OPA’s only job is to assist the president by providing him with the unbiased information he needs to fulfill his constitutional clemency power fully and fairly.

It is clear that the OPA is failing miserably. Since the OPA (and DOJ) will not even respond publicly to serious allegations of incompetence and corruption, Congress must investigate.

Friday, July 6, 2012

Good and Mad Reading for the Weekend

106 degrees.  That's how hot it will be here in Washington, DC this weekend.  We debated whether we should give you anything that would increase the heat even a bit, but this op-ed at The Washington Post on solitary confinement is just too good to pass up.  Get a glass of cold tea and an ice pack for this one.
We as a nation are guilty of the most horrific treatment of prisoners in the civilized world. In March, 400 prisoners in California’s Security Housing Units, as well as a number of prisoners’ rights organizations, petitioned the United Nations asking for help. Since then, the Center for Constitutional Rights has filed a federal lawsuit on behalf of prisoners at California’s Pelican Bay State Prison who have each spent between 10 and 28 years in solitary confinement . A class-action suit in Arizona challenges inadequate medical and mental health care that subjects prisoners to injury, amputation, disfigurement and death — especially in prolonged solitary confinement.
Supermax detention is the harshest weapon in the U.S. punitive armory. Once, solitary confinement affected few prisoners for relatively short periods. Today, most prisoners can expect to face solitary, for longer periods and under conditions that make old-time solitary seem almost attractive. ...

We citizens are proud of our history. We are a nation of laws. But what kind of laws? Laws that permit solitary confinement, with cell doors, unit doors and shower doors operated remotely from a control center, with severely limited and often abusive physical contact. Has society’s current attention to the death penalty allowed us to forget the gradual destruction of mind and loss of personal dignity in solitary confinement, including such symptoms as hallucinations, paranoia and delusions?
The philosopher Jeremy Bentham came to believe that solitude was “torture in effect.” Other 19th-century observers, including Charles Dickens and Alexis de Tocqueville, used images of premature burial, the tomb and the shroud to represent the death-in-life of solitary confinement. Some 25,000 inmates are languishing in long-term isolation in America’s supermax prisons, with as many as 80,000 more in solitary confinement in other facilities.

Tuesday, July 3, 2012

Is this Debtors' Prison in Disguise?

Another interesting crime and justice article from The New York Times today (those guys are just cranking them out these days!).  This article describes how some people end up in jail despite the use of a common combo of alternatives to incarceration:  fines and probation.

Here's the problem:  people get probation and/or a fine for a smaller-scale crime (speeding, driving without a license, etc.).  But the person can't pay the court fees and/or fine, so they get sent to jail.

And in the U.S., those jails are often overcrowded, since we just lo-o-o-ve sending people to jail.

An irony:  the fines and fees levied against lawbreakers are increasing to help state and local governments still hurting from the recession.  But many of those governments are also trying to reduce jail and prison populations to save cash. Seems counterproductive to lock up debtors, then, doesn't it?

And, just as with prisons, private companies may be reaping the benefits:

In Georgia, three dozen for-profit probation companies operate in hundreds of courts, and there have been similar lawsuits. In one, Randy Miller, 39, an Iraq war veteran who had lost his job, was jailed after failing to make child support payments of $860 a month. In another, Hills McGee, with a monthly income of $243 in veterans benefits, was charged with public drunkenness, assessed $270 by a court and put on probation through a private company. The company added a $15 enrollment fee and $39 in monthly fees. That put his total for a year above $700, which Mr. McGee, 53, struggled to meet before being jailed for failing to pay it all.
“These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,” said John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall. “There are things like garbage collection where private companies are O.K. No one’s liberty is affected. The closer you get to locking someone up, the closer you get to a constitutional issue.”
The issue of using the courts to produce income has caught the attention of the country’s legal establishment. A recent study by the nonpartisan Conference of State Court Administrators, “Courts Are Not Revenue Centers,” said that in traffic violations, “court leaders face the greatest challenge in ensuring that fines, fees and surcharges are not simply an alternate form of taxation.”
J. Scott Vowell, the presiding judge of Alabama’s 10th Judicial Circuit, said in an interview that his state’s Legislature, like many across the country, was pressuring courts to produce revenue, and that some legislators even believed courts should be financially self-sufficient.
Of course, if states ran their criminal justice systems more cost-effectively -- in other words, without mandatory minimum prison sentences that increase prison populations and costs -- perhaps they would not have to worry about "financially self-sufficient" court systems, or increasing fines and fees to make ends meet.

Unnecessary and excessive use of incarceration is the big-ticket budget item in state criminal justice systems.  When there is too much of it, it sends ripples all the way down to the bottom.

The Dark Side of Snitching

This leeeeeennngthhhy piece in The New York Times is nonetheless interesting and worthwhile for those with some time to spare (or a holiday tomorrow, on the 4th of July).  It tells the story of a confidential informant, a/k/a a "snitch," a person who provides information on criminal and drug activity (sometimes true, sometimes not) to police or prosecutors (sometimes in exchange for a shorter sentence, money, or not being charged with a crime).

If the War on Drugs is a machine, snitching is one of the essential lubricants that keeps it running.

In the federal system, providing information to the prosecution is one of the only ways out of a mandatory minimum sentence -- a powerful incentive to snitch. There are grave dangers, of course, to snitching. False or bad information can lead to wrongful searches, arrests, and convictions. It can also, as the article describes, lead to public corruption and the killing of innocent bystanders.

Monday, July 2, 2012

Conservative Justices Should Oppose Mandatory Minimums

Over at The Atlantic, Wendy Kaminer provides a pointed critique of the conservative wing's dissent in the Miller life-without-parole case just handed down by the Supreme Court.  Here are her thoughts, including her opinion of how a Supreme Court justice would react if he/she were on the receiving end of a mandatory minimum sentence:
Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not.

The Supreme Court's conservative wing strongly endorsed a categorical approach to criminal justice in their dissents in Miller v Alabama, the recent 5 - 4 decision striking down mandatory life without parole (LWOP) sentences for juveniles convicted of homicide. ...
Justice Alito objected strongly to [an] individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.
"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."
Particularized, individualized justice is precisely what mandatory sentences deny.

Justice Should Apply to All, Not Just Juveniles

That's the title of this piece in The Huffington Post by FAMM President Julie Stewart, noting that the recent  Supreme Court decision in Miller v. Alabama has a good holding based on good reasoning -- that mandatory minimum life-without-parole sentences shouldn't apply to juveniles because it is cruel and unusual -- and that the same reasoning should make all mandatory minimum sentences unconstitutional.

Why limit justice to an age group?
... why should Justice Kagan's otherwise sound sentencing logic -- that people must be sentenced as individuals -- only apply to juveniles? Why is it permissible to strong-arm judges into giving a mandatory life without parole sentence to an 18 year-old, but not to a 17 year-old? A mandatory minimum sentence is no less unjust, no less disregarding of the facts and circumstances of the crime and the offender, and no less cruel and unusual if the offender is 19, 27, 45, or 90. Age is an important sentencing factor, but it should not be the divider between constitutional and unconstitutional mandatory minimum sentences.
Ask any prisoner and her family: each and every day of mandatory punishment that is more than necessary and merited, is cruel and unusual punishment.