Friday, August 31, 2012

Good and Mad Reading for the Weekend

Our good and mad reading comes from something that showed up earlier this week in The New York Times:  a moving column about solitary confinement by philosophy professor Lisa Guenther.  Guenther makes a compelling argument that solitary confinement should really make us hopping mad not just because it  is inhumane and can permanently damage a person's mental health, but also because this kind of damage just can't be good for recidivism or public safety:
We tend to assume that solitary confinement is reserved for “the worst of the worst”: violent inmates who have proved themselves unwilling or unable to live in the general population. But the truth is that an inmate can be sent to the hole for failing to return a meal tray, or for possession of contraband (which can include anything from weapons to spicy tortilla chips). According to the Bureau of Justice, there were 81,622 prisoners in some form of “restricted housing” (code for solitary confinement) in 2005. If anything, these numbers have increased as isolation units continue to be built in prisons, jails and juvenile detention centers across the country. Given that 95 percent of all inmates are eventually released into the public, and that many of these will be released without any form of transition or therapy, solitary confinement is a problem that potentially affects every one of us. ...
Deprived of everyday encounters with other people, and cut off from an open-ended experience of the world as a place of difference and change, many inmates lose touch with reality. What is the prisoner in solitary confinement at risk of losing, to the point of not getting it back? ...

When we isolate a prisoner in solitary confinement, we deprive them of both the support of others, which is crucial for a coherent experience of the world, and also the critical challenge that others pose to our own interpretation of the world. Both of these are essential for a meaningful experience of things, but they are especially important for those who have broken the law, and so violated the trust of others in the community. If we truly want our prisons to rehabilitate and transform criminal offenders, then we must put them in a situation where they have a chance and an obligation to explain themselves to others, to repair damaged networks of mutual support, and to lend their own unique perspective to creating meaning in the world.
We ask too little of prisoners when we isolate them in units where they are neither allowed nor obliged to create and sustain meaningful, supportive relations with others. For the sake of justice, not only for them but for ourselves, we must put an end to the over-use of solitary confinement in this country, and we must begin the difficult but mutually rewarding work of bringing the tens of thousands of currently isolated prisoners back into the world.
Are we ultimately safer if prison destroys a person's mental health, social responsibility, and sense of connection to others?  Should it really surprise us when prisoners who were deprived of their sense of community and connectedness return to society, can't stay grounded, and commit more crimes?

How we treat prisoners is a public safety issue.

Thursday, August 30, 2012

You Be the Judge

Every once in awhile here at the blog, we like to post stories and ask our readers to be the judge.

This time around, it's the case of Todd Broxmeyer, sentenced to the statutory maximum of 30 years for attempted production of child pornography and possession of child pornography, described in this piece in the New York Law Journal.  Here's the government's version of his offense:

Prosecutors accused Broxmeyer of enticing girls he coached [on a field hockey team] into sexual situations by praising their appearances, sending them photos of his erect penis, and requesting that they send him sexual images of themselves. Police say he also challenged girls to get their friends to send him naked photos of themselves.

He then escalated his behavior by trying to make physical advances on the girls. Authorities said he ultimately had sex with "several" of the teens.
The production of pornography charge concerned sexually explicit photos Broxmeyer coaxed a 17-year-old identified as K.T. to take of herself and the possession charge concerned several images of teen girls, including those of K.T. and another 17-year-old girl he coached.
(Note:  In New York, the age of sexual consent is 17.)  

Broxmeyer faced a 15-year mandatory minimum that, once the U.S. Sentencing Guidelines enhancements were added in, increased to a life sentence.  (Read FAMM's factsheet to learn more about child pornography sentencing.)  Broxmeyer ultimately got "only" 30 years because that is the statutory maximum for the crimes.

Chief Judge Dennis Jacobs dissented from the appellate court's decision to uphold the 30-year sentence Broxmeyer received (the judge found the 15-year minimum "more than sufficient" for the crime). Chief Judge Jacobs' dissenting opinion is a good summary of many of the problems with the current guidelines for child pornography offenses. He had numerous reasons for disagreeing with both the 30-year maximum sentence and the life sentence under the guidelines, but here's the gist of it:
[A] Guidelines calculation that so far exceeds the statutory maximum should give pause. In this instance, many of the enhancements reflect no incremental evil beyond the base offense itself. And the base offense itself is the eliciting of (in the majority’s words) a “suggestive, but not sexually explicit” self-photograph from a girl who was of the age of consent in New York--surely the least of the evils that Congress could have contemplated when it drafted the statute. ...
[A] sentencing court is not limited to the conduct giving rise to the offense of conviction. Nor is an appellate court so limited; ... My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction. I respectfully argue that the majority has done just that. In the fact section of the majority opinion, the offenses of conviction are embedded in graphic accounts (twice as long) of misconduct that (however egregious) forms no basis for either of the convictions for which Broxmeyer was sentenced. The fact segment of the majority opinion is largely preoccupied with an act underlying both [i] a federal Mann Act conviction (18 U.S.C. § 2423(a)) that was reversed, and [ii] a state prosecution for which Broxmeyer was convicted and is imprisoned. Much of the rest is a catalog account of sexual activities with other high school girls for which Broxmeyer could not be charged in federal court. And it is not at all clear how much of this long fact recitation is premised on findings that were actually made by the district court. Moreover, the majority’s analysis does not rely on any of that misconduct; mainly, it primes and incites the reader, who might otherwise focus on the offense of conviction, and the fact that it amounts to a single act of attempted sexting. When the majority opinion does get to the offense of conviction (attempted production), it is enlarged to include additional, subsequent conduct. True, Broxmeyer continued to importune K.T. to sext him nude pictures of herself, and did so with more success. But if that were the offense, Broxmeyer would have been charged with production itself, not the attempt. The prosecution chose not to do so, for its own (presumably sufficient) reasons.
My conclusion is that it is error to impose a 30-year sentence for an offense that amounts to attempted sexting.
Chief Judge Jacobs says it best in this slice of his opinion:
... something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them.
Mr. Broxmeyer's conduct surely is not savory or desirable, but Chief Judge Jacobs also surely makes a good point.  Is it possible that, in our zeal to protect our kids (even our 17 year-old ones who can legally consent), we have perhaps gone too far?

You be the judge.  Leave a comment and tell us what you think.

Wednesday, August 29, 2012

Who's Crazy -- Norwegians, or Us?

Norway just sentenced Anders Breivik, who killed 77 people in a mass shooting/bombing, to the maximum punishment allowable under Norwegian law:  21 years in prison.

Why? Because Norway operates on a different philosophy of punishment than the U.S. does.  It's called restorative justice -- the philosophy that the criminal justice system should repair the harms of crime for victims, society, and the criminal, too. Max Fisher takes a shot (no pun intended) at understanding Norway's philosophy in a thought-provoking article in The Atlantic.  Fisher explains how the U.S. is different, and why we might be inclined to call Norwegians crazy:

The American justice system, like most of those in at least the Western world, is built on an idea called retributive justice. In very simplified terms (sorry, I'm not a legal scholar), it defines justice as appropriately punishing someone for an act that's harmful to society. Our system does include other ideas: incapacitating a criminal from committing other crimes, rehabilitating criminals to rejoin society, and deterring other potential criminals. At its foundation, though, retributive justice is about enforcing both rule of law and more abstract ideas of fairness and morality. Crimes are measured by their damage to society, and it's society that, working through the court system, metes out in-turn punishment. Justice is treated as valuable and important in itself, not just for its deterrence or incapacitative effects. In a retributive system, the punishment fits the crime, and 21 years in a three-room cell doesn't come close to fitting Breivik's 77 premeditated murders.
But over at The Nation, Liliana Segura takes issue with Fisher's take on the virtues of America's supposed (and that is the key word) devotion to retributive justice.  We may have a retributive system, but do our punishments really fit their crimes?
To be fair, Fisher is not talking about US-style drug sentencing—or sentencing as it exists on the ground here at all. But he should have, because the fact that there are nonviolent drug offenders serving the same amount of time as convicted murderers in the United States is rooted in a Frankenstein version of the very retributive model he is writing about. The War on Drugs was ostensibly designed to harshly punish those responsible for massive harm to our communities (while in practice, ensnaring low-level offenders who harm no one, except possibly themselves). Mandatory sentencing statutes, supposedly devised to fulfill a retributive ideal, have instead tied the hands of judges when it comes to imposing fair, proportionate sentences, leading to systemic perversions of justice. ...
Even if you agree that Breivik’s twenty-one-year-sentence in a “three-room cell” with a TV, etc., is a grossly inadequate way of dealing with his barbaric actions, the notion that a retribution-based system hands out sentences that “fit the crime” is wildly and tragically false if the United States is your guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row for failing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.
The odd thing is that Norway's restorative justice model has produced a country with low levels of crime, prison costs, and recidivism. And even Breivik's victims support it:
Norwegians, of course, including survivors and their family members, seem to have widely accepted Breivik’s sentence, suggesting that the system has actually fulfilled their desire for justice and fairness (a fact Fisher acknowledges and finds “jarring”). “That’s how it should work,” one survivor of the massacre said of the sentence. “That’s staying true to our principles and the best evidence that he hasn’t changed society.”
On a train in Boston this weekend, I overheard some people criticizing Breivik's sentence. Perhaps they're right to do so. But I didn't hear them offer any criticism of people serving even longer than Breivik in the U.S. for crimes with no victims, no deaths, and no property destruction.

Which makes me ask yet again:  Who is the real source of support for harsh sentencing laws in the U.S.?  

The problem is us.

-- Stowe

Tuesday, August 28, 2012

Republican National Convention Speakers: Smart on Crime

We posted this earlier this month, but it's especially relevant now that the Republican National Convention is in full swing.  Enjoy a second read from our man on the ground, Florida Project Director Greg Newburn:




The Republican National Committee's list of speakers for the GOP convention in Tampa, Florida includes “some of our party’s brightest stars, who have governed and led effectively and admirably in their respective roles,” said RNC Chair Reince Priebus.

Conservative criminal justice reform advocates should be pleased with the list. While not every speaker has embraced the “Smart on Crime” model, many of them have done so enthusiastically, and in the process have demolished the tired idea that conservatives aren’t open to common-sense criminal justice reform.

Take Former Arkansas Governor Mike Huckabee, who could never be confused with a liberal. He has argued that “we have not been very successful in incarcerating our way out of the drug problem. We’ve created a bigger problem. Our prisons are teeming with people who don’t need to be incarcerated as full-time inmates . . . I’m not soft on crime. Crime needs to be punished, but realistically, and justly.”

In case you’re still unsure of Huckabee’s conservative credentials, remember: Chuck Norris is Mike Huckabee’s friend.

What about Ohio Governor John Kasich? Kasich has a lifetime rating of 88% with the American Conservative Union. Governor Kasich made criminal justice reform a priority of his administration, and last year he signed a reform bill designed to “send low-level nonviolent felons to rehabilitation facilities in lieu of prison, put a credit-earned system in place, and adjust prison sentences for drug and petty theft offenses. The package was proposed as a means to save money, reduce recidivism, and ease overcrowding.”

Upon signing the bill, Kasich said:
I get emotional about this because I think the passage of this bill … is going to result in the saving of many, many lives, maybe even thousands, before all is said and done. I think as we all know, the type of reform in this legislation has sat idle for 25 years … Nobody wanted to touch it … You know what, when you’re dealing with human beings … if you’re going to put your own future ahead of other people’s lives and their ability to reclaim their lives, you’re making a big mistake.
Another speaker, Former Florida Governor Jeb Bush, recently joined Right on Crime, a group of conservative heavyweights that supports criminal justice reform (including mandatory minimum sentencing reform) and includes Grover Norquist, Newt Gingrich, and Ed Meese. Governor Bush said of the effort, “States across the country, including Florida, are proving that policies based on these sound conservative principles will reduce crime and its cost to taxpayers.”

Oklahoma Governor Mary Fallin worked with Right on Crime, the American Legislative Exchange Council, and Republican legislators to craft a comprehensive Justice Reinvestment bill that included sentencing reforms and is projected to save her state millions of dollars. On signing the bill, Governor Fallin said, “[I]n addition to saving tax dollars, [community sentencing options ] will help nonviolent offenders, many of whom have substance abuse problems, to receive treatment and safely get back into their communities.”

Of all the speakers at the convention, Senator Rand Paul might be the most vocal critic of mandatory minimum sentencing. Not only has Senator Paul blocked federal drug legislation because it contained mandatory minimums, he’s said on the record that “On mandatory minimums, I don’t think teenagers accused of possessing drugs should get twenty years in prison. I’ve fought to get rid of this.”

Perhaps most notably, New Jersey Governor Chris Christie said recently that “[t]he war on drugs, while well-intentioned, has been a failure.” Christie signed reform legislation designed to reduce New Jersey’s reliance on incarceration in drug cases, and made the case that such reforms go beyond saving money: “If you're pro-life, as I am, you can't be pro-life just in the womb,” he said. “Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them.”

Across the country, conservatives understand that criminal justice systems should be subject to the same analysis as every other area of public policy. They realize we spend far too much on incarceration and receive far too little in return. Thankfully, some of the GOP’s “brightest stars” have made criminal justice reform a part of governing and leading “effectively and admirably.” It’s good to see the Republican Party not only embracing such reforms, but also rewarding the conservative leaders in criminal justice reform with a chance to share their views at the convention.

Greg Newburn
Florida Project Director

Monday, August 27, 2012

We're the Problem

Who is to blame for America's overcrowded prisons?  Maybe it's not politicians or presidents or even the War on Drugs ... maybe the problem is us.


Last week, a Norwegian judge sentenced mass murderer Anders Behring Breivik, who killed 77 people, most of them teenagers, in a horrific, carefully planned political hate rampage in July 2011, to 21 years in prison, the harshest punishment in a nation that has no life sentence, “ending a case that thoroughly tested this gentle country’s collective commitment to values like tolerance, nonviolence and merciful justice,” in the words of the New York Times.
Nobody would use those words to describe the United States. We have a passionate belief in harsh justice; the harshest anywhere, in fact. The U.S. has by far the highest incarceration rate in the world — 743 people are in jail for every 100,000 Americans, or .7 percent of the population at any given time. ...
Make no mistake ­— Norwegians hate Breivik and wish the cops had shot him. But they also are overwhelmingly satisfied with the outcome of his trial. Only 4 percent of Norwegians in a poll Friday disagreed with Breivik’s sentence, according to the Norway Post — 85 percent support the court’s ruling.
So what is it about Americans? We obviously really like putting people in jail — with 4 percent of the world’s population, we have 25 percent of the world’s prisoners.
The question is: why? Race has to be a factor. More than 60 percent of American prisoners are black or Hispanic, double their presence in the population, and the criminal justice system operates differently for law-breakers who are white and have resources than those who are of color and don’t.
The failed war against drugs also is key. ... [O]ur politicians tend to make the situation worse. Our criminal justice system is crisscrossed with all sorts of get-tough laws inflicted by showboating politicians — we not only have more prisoners but our sentences are longer than anyplace else on earth. Mandatory minimum sentences, though long decried, still tie judges’ hands and ship drug offenders away for decades. Ludicrous “three-strikes” laws were intended to jail hardened criminals. But felons can and do receive 25-year-sentences — longer than Breivik got for murdering 77 people — for shoplifting a candy bar. California burglar Norman Williams got a life sentence for taking a jack from a tow truck.
Politicians are not the only ones to blame. We love to get tough on crime. The California three-strikes law passed with 72 percent of the vote. Twenty-five other states have three-strikes laws.
In an election year in which it is easy to blame Congress and the candidates for the problems in our country, overincarceration is one problem for which there is plenty of blame to go around.

But us voters and citizens shouldn't exclude ourselves from the blame game.  For decades, mandatory sentences have been passed on our watch, with our willing consent or our blind indifference.

We need even more of us to take note and take action to stop this senselessness in sentencing.

Tuesday, August 21, 2012

Sentencing Nerd Red Alert!

We bust out the red siren in honor of this piece of sentencing nerd news: the U.S. Sentencing Commission has posted its priorities for the upcoming year of sentencing reform action.

The first priority listed:  continuing to work with Congress to put in place recommendations from the Commission's last report on mandatory minimum sentences.

Other areas the Commission will focus on:

  • How guideline sentencing has been working since the Booker decision
  • Continued review of child pornography sentencing -- including a written report on the subject to Congress
  • Continued review of the fraud guidelines
  • Continued review of definitions of hotly-contested sentencing terms like "crime of violence," and
  • A multi-year review of recidivism (!!!), including what increases or decreases it, how that information can help reduce prison populations and costs, and how that information might lead to guideline changes.

So, you ask, what does all this mean for prisoners and their loved ones? Well, this action doesn't reduce any sentences. All the Commission has done is define what it's going to focus on for the next year.  You can bet your guidelines manuals and sentencing statistic sourcebooks, though, that FAMM is going to be working closely with the Commission on these topics and keeping you updated along the way.

Many thanks to those who wrote to the Commission and gave it a piece of their sentencing nerd minds.  Keep checking our website for the latest on all things guidelines!

Monday, August 20, 2012

Is that a rhetorical question?

"Do prosecutors have too much power?" That question - which strikes us as rhetorical - is the subject of a New York Times forum called to our attention by sentencing professor/guru/blogger Doug Berman. Forum contributors include former federal prosecutor and judge Paul Cassell, author Angela Davis, former judge Nancy Gertner, and a couple of others. All of their viewpoints are worth considering, but Ms. Davis warmed our hearts with these comments:

On average, federal defendants who refuse to waive their right to a jury trial receive a sentence three times longer than those who plead. And with the prevalence of mandatory minimum laws, a prosecutor’s charging decision often dictates a sentence that a judge is powerless to avoid. It is no wonder 97 percent of federal convictions are the result of guilty pleas. 
To rein in this power, Congress should no longer pass laws with mandatory minimum sentences.

Bingo. Check out the full forum.

Thursday, August 16, 2012

Don't Just Take Our Word for It...

We've been saying it for years:  criminal justice and sentencing reform are bipartisan issues. With federal prisons overcrowding and prison costs eating into crime-fighting programs, it's time for meaningful, bipartisan reform to come out of Congress.  Public safety depends on it.

But don't just take our word for it -- try taking the word of David A. Keene, former chairman of the American Conservative Union and current president of the National Rifle Association, and former congressman Alan B. Mollohan, a West Virginia Democrat who helmed the House Appropriations subcommittee on commerce, justice, science and related agencies. That right-left duo offers this excellent call for smart-on-crime solutions from both parties.  Here are some of their reform suggestions:

Instead of throwing good money after bad, Congress should follow the example of [states like Texas, which have passed reforms and saved money] and take steps to curb federal prison population growth. Congress can start with proven solutions that reduce recidivism and give prisoners a second chance. One example is increasing the number of days that a prisoner can earn off his sentence for good behavior, called “good time credit.” Congress also should implement programming within prisons that would increase the likelihood of prisoners’ success after release, such as more drug treatment programming, educational opportunities and vocational training, all of which have proved to be effective at reducing recidivism. These investments make it less likely that the government will have to spend money in the future to re-incarcerate the same people.
Congress also should consider who is incarcerated in federal prisons. Sensible people agree that violent criminals belong behind bars, but the reverse is often true as well — many low-level, nonviolent offenders do not belong behind bars. The increased use of diversion programs, probation and other prison alternatives, all of which many states have successfully employed, should be systematically implemented by the federal government.
At a time when almost every issue seems to bitterly divide Democrats and Republicans, reforming our flawed criminal justice policies has produced consensus rather than division across our nation. Congress ought to take advantage of this political consensus to develop and enact practical yet effective solutions and embrace criminal justice reform.
Mandatory minimum sentencing reform must be part of any meaningful bipartisan criminal justice reform created by Congress. The math is simple:  when we give the wrong people more prison time than they deserve, prison populations and costs increase -- but public safety doesn't. Both sides of the aisle need to take a hard look at our 30-year experiment with mandatory minimums and ask if they're really giving us the right bang for the buck. This isn't "soft on crime"; it's smart on crime. And in the end, it's good for public safety and increasing faith in our justice system, too.

Mandatory Minimum Quote of the Week

We like this comment from Toronto criminal defense lawyer Steven Tress, criticizing new mandatory minimum sentences passed this year in Canada's Safe Streets and Communities Act:

Mandatory minimums are like cutting off the hand of someone who steals. It may deter them in the short term, but if you haven’t addressed the root of why they are stealing in the first place, your streets will not be any safer, which is ironic given the name of the act.”
The statement is true down here in the U.S. of A, too. Giving people harsh, long, expensive mandatory minimum prison terms has never been proven to get at the real causes of crime, scare others away from crime, or rehabilitate prisoners (especially if prisons cost us so much that we can't afford proven-effective prison programs like drug treatment and job training). Like hacking off a limb, mandatory minimums do more harm than good in too many cases.

Catch Julie on the John Stossel Show!

If you missed FAMM President Julie Stewart's appearance on John Stossel's show, have no fear:  you can watch the whole thing for free right here on Hulu.

Watch Julie in the first 12 minutes (and the rest of the program is pretty good, too).

Tuesday, August 14, 2012

Investigation of Pardon Attorney's Office Continues

A new article by ProPublica's Dafna Linzer provides the latest in the ongoing saga of the investigation of the Office of the Pardon Attorney, the small Justice Department office that has come under fire in recent months for its appallingly poor handling of pardon and commutation requests.

Linzer's series of investigative articles into the pardon review process has revealed disturbing racial disparities in who gets pardons and misrepresentations of key facts in one commutation applicant's case by the pardon attorney, Ronald Rodgers.

According to Linzer's latest article, the Justice Department is planning a one-year survey of pardon data to double check Linzer's findings that whites are four times more likely to receive pardons as blacks.
In June, the Justice Department published an outline of the survey for contractors bidding to conduct it. The research will be expected to "test the primary hypothesis that, all other things being equal, African Americans and other minorities are less likely to progress in the pardon adjudication process than applicants of other races," the outline said.
The government's survey will focus exclusively on pardons, which convey forgiveness for federal crimes, and will not include commutations, which shorten federal prison sentences. Though presidents make the final decisions on petitions for clemency, they rely heavily upon recommendations from the Office of the Pardon Attorney, an arm of the Justice Department, to guide their determinations.
According to the study outline, the Justice Department review will be similar in many regards to the analysis ProPublica conducted for its report.

One key difference between the reviews is that the government review will consider the influence of subjective categories, such as an applicant's level of remorse and acceptance of responsibility, on the success of pardon applications, the survey outlines said. It is unclear how researchers will quantify such variables.
The government study also will be overseen by a steering committee that will include staff from the pardons office, giving insiders a hand in the process.
Should pardon attorney insiders be involved in this review, given the serious allegations that have come to light in recent months?  How will the study determine whether and to what extent these "subjective categories" of "remorse and acceptance of responsibility" played a role in pardon outcomes?  How will the study's findings be used to improve the clemency review process and ensure that all applicants are receiving the consideration they merit?

We don't know the answers to these questions, but we will continue to watch this unfolding drama carefully and blog about the findings as they come our way.

To help taxpayers, first do no harm

That's the question FAMM President Julie Stewart poses in this piece over at The Crime Report today.

The piece was inspired by an important speech from the Department of Justice's Lanny Breuer, noting how soaring federal prison costs mean less funding for cops, prosecutors, and programs that reduce recidivism.  That speech was followed by a Senate Judiciary Committee hearing at which witnesses noted that the cost of federal prisons now consumes nearly a quarter of the Justice Department's entire budget.  As Julie writes,
Compared to losing a loved one or losing one’s life savings, the approximately $28,000 per year it costs to keep a dangerous person in federal prison seems like a bargain. But when that money is spent on excessive and one-size-fits-all prison terms for those who are not a threat or would thrive with smarter alternative punishments, we waste scarce resources and put society at risk.

Policymakers who are worried – and rightly so – about overcrowding federal prisons and swelling of prison budgets should look at what is driving these unsustainable increases.

The Sentencing Commission last year found that a significant share of the blame rested with mandatory minimum sentences, a point also raised by Chairman Leahy at Wednesday’s hearing. ...

There are many different ways policymakers might seek to reduce corrections spending while maintaining if not improving public safety. ...

[T]hey can reserve expensive prison space for violent and repeat offenders and make use of new technologies and methods that make it possible for low-level, nonviolent offenders to be held in the community.

Policymakers’ first step, however, should be to do no harm. Yet, pending before Congress at this very moment are proposals to impose new mandatory minimum sentences in the Violence Against Women Act (VAWA) reauthorization, the Senate’s Cybersecurity bill, and new legislation dealing with identity theft on tax returns.

These proposals cover vastly different offenses, but share two lamentable traits: (1) none of the new mandatory minimums was the subject of a congressional hearing or debate about its utility or lack thereof, (2) all of these new proposals will exacerbate the federal prison problem without any assurance of improving public safety.

In fact, in the case of the new mandatory minimum in the VAWA reauthorization, the only stakeholder to weigh in on either side—pro or con—was a group dedicated to protecting women’s security, which warned Congress that its new penalty provision would hurt, not help, abused women.
A first, common-sense step to slowing the growth of the federal prison budget is to stop using mandatory minimum sentences.  Taxpayers are willing to pay for public safety -- but they shouldn't have to pay for new, lengthy, mandatory sentences that aren't proven to reduce crime and keep us safe.  That money can be better spent elsewhere.

Wednesday, August 8, 2012

ACLU to DOJ: Help free the innocent

The ACLU has written a strong letter to James Cole, the second in command at the Department of Justice (DOJ), demanding he do more to correct a grave injustice: the continued imprisonment of people convicted of a crime they did not commit. The ACLU points out that DOJ lawyers know many are “legally innocent” but they have done little to find and notify them and have set roadblocks up to stop them from gaining their freedom.

As this article explains:

The legal issue is complicated, and mostly confined to one state: Federal law bans people from possessing a gun if they have previously been convicted of a crime that could have put them in prison for more than a year. In North Carolina, state law sets the maximum punishment for a crime based in part on the criminal record of whoever committed it, meaning some people committing such crimes as possessing cocaine face sentences of more than a year, while those with shorter records face only a few months.

For years, federal courts there said that didn't matter. If someone with a long record could have gone to prison for more than a year, then all who had committed that crime are felons and cannot legally have a gun.

But last year, the 4th Circuit Court of Appeals said judges had been getting the law wrong. Only people who could have faced more than a year in prison for their crimes qualify as felons. Its decision meant tens of thousands of low-level state offenders should not have been prohibited from having guns.
The ACLU estimates there are 3,000 people in federal prison who are either legally innocent or whose sentences were improperly increased by judges who got the law wrong.

A looming one year deadline for relief (a deadline the DOJ can choose to ignore) makes this request and the DOJ’s swift action doubly important.

We applaud the ACLU for telling the DOJ to do the right thing!

Mary Price
Vice President and General Counsel

Tuesday, August 7, 2012

Criminal Justice Reform: It's Not Just for Democrats

The Republican National Committee has released a partial list of speakers tapped for the GOP convention scheduled for later this month in Tampa, Florida. In making the announcement, RNC Chair Reince Priebus said the list includes “some of our party’s brightest stars, who have governed and led effectively and admirably in their respective roles.”

Conservative criminal justice reform advocates should be pleased with the list. While not every speaker has embraced the “Smart on Crime” model, many of them have done so enthusiastically, and in the process have demolished the tired idea that conservatives aren’t open to common sense criminal justice reform.

Take Former Arkansas Governor Mike Huckabee, who could never be confused with a liberal. He has argued that “we have not been very successful in incarcerating our way out of the drug problem. We’ve created a bigger problem. Our prisons are teeming with people who don’t need to be incarcerated as full-time inmates . . . I’m not soft on crime. Crime needs to be punished, but realistically, and justly.”

In case you’re still unsure of Huckabee’s conservative credentials, remember: Chuck Norris is Mike Huckabee’s friend.

What about Ohio Governor John Kasich? Kasich has a lifetime rating of 88% with the American Conservative Union. Governor Kasich made criminal justice reform a priority of his administration, and last year he signed a reform bill designed to “send low-level nonviolent felons to rehabilitation facilities in lieu of prison, put a credit-earned system in place, and adjust prison sentences for drug and petty theft offenses. The package was proposed as a means to save money, reduce recidivism, and ease overcrowding.”

Upon signing the bill, Kasich said:

I get emotional about this because I think the passage of this bill … is going to result in the saving of many, many lives, maybe even thousands, before all is said and done. I think as we all know, the type of reform in this legislation has sat idle for 25 years … Nobody wanted to touch it … You know what, when you’re dealing with human beings … if you’re going to put your own future ahead of other people’s lives and their ability to reclaim their lives, you’re making a big mistake.
Another speaker, Former Florida Governor Jeb Bush, recently joined Right on Crime, a group of conservative heavyweights that supports criminal justice reform (including mandatory minimum sentencing reform) and includes Grover Norquist, Newt Gingrich, and Ed Meese. Governor Bush said of the effort, “States across the country, including Florida, are proving that policies based on these sound conservative principles will reduce crime and its cost to taxpayers.”

Oklahoma Governor Mary Fallin worked with Right on Crime, the American Legislative Exchange Council, and Republican legislators to craft a comprehensive Justice Reinvestment bill that included sentencing reforms and is projected to save her state millions of dollars. On signing the bill, Governor Fallin said, “[I]n addition to saving tax dollars, [community sentencing options ] will help nonviolent offenders, many of whom have substance abuse problems, to receive treatment and safely get back into their communities.”

Of all the speakers at the convention, Senator Rand Paul might be the most vocal critic of mandatory minimum sentencing. Not only has Senator Paul blocked federal drug legislation because it contained mandatory minimums, he’s said on the record that “On mandatory minimums, I don’t think teenagers accused of possessing drugs should get twenty years in prison. I’ve fought to get rid of this.”

Perhaps most notably, New Jersey Governor Chris Christie, who has not been named a speaker but who almost certainly will be (he could also be named Governor Romney’s running mate), said recently that “[t]he war on drugs, while well-intentioned, has been a failure.” Christie signed reform legislation designed to reduce New Jersey’s reliance on incarceration in drug cases, and made the case that such reforms go beyond saving money: “If you're pro-life, as I am, you can't be pro-life just in the womb,” he said. “Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them.”

Across the country, conservatives understand that criminal justice systems should be subject to the same analysis as every other area of public policy. They realize we spend far too much on incarceration and receive far too little in return. Thankfully, some of the GOP’s “brightest stars” have made criminal justice reform a part of governing and leading “effectively and admirably.” It’s good to see the Republican Party not only embracing such reforms, but also rewarding the conservative leaders in criminal justice reform with a chance to share their views at the convention.

Greg Newburn
Florida Project Director

Justice Misses the Point

But The New York Times doesn't in this superb editorial that criticizes the Department of Justice for its failure to recognize why we have too many people in federal prisons:  we have too many people in our federal prisons because of mandatory minimum sentencing laws.

The editorial is reprinted in full below.

Too Many Prisoners
August 4, 2012

The Justice Department in its recent annual report on federal sentencing issues wisely acknowledged that public safety can be maximized without maximizing prison spending. As it noted, the growing federal prison population, now more than 218,000 inmates, and a prison budget of almost $6.2 billion are “incompatible with a balanced crime policy and are unsustainable.”

The department calls for reforms “to make our public safety expenditures smarter and more productive.” Yet it fails to address sentencing changes that should be made, which would significantly reduce the problem of overincarceration in federal prisons.

Last fall, the United States Sentencing Commission issued a comprehensive report that said mandatory minimum sentences are often “excessively severe,” especially for people convicted of drug-trafficking offenses, who make up more than 75 percent of those given such sentences. Mandatory minimums have contributed in the last 20 years to the near tripling of federal prisoners, with more than half the prisoners now in for drug crimes.

There is no good evidence that long mandatory sentences deter crime. There is very good evidence that older prisoners (45 and up) are the least dangerous and that many should be released.

The Justice Department report does not mention mandatory minimum sentences or their major contribution to overincarceration in federal prisons. And it fails to urge Congress to make repealing mandatory minimums a high priority, as it should. It does not mention releasing older prisoners, which the Federal Bureau of Prisons has the power to do.

Nor does it mention adjusting its own policies on drug cases so it would put away fewer offenders not considered dangerous. About 25,000 people were convicted of federal drug offenses last year, almost the same number as during the Bush administration in 2008 — a substantial proportion in low-level roles of drug trafficking, according to the Sentencing Commission.

The department sensibly calls for more cost-effective prison policies, but that would require reconsideration of the basic purpose of punishment. The unsustainable federal prison budget and the rising inmate population reflect the country’s long, wasteful embrace of retribution. Both numbers are higher than they need to be for public safety.

Friday, August 3, 2012

Celebrating Massachusetts Reforms

FAMM is still celebrating Governor Deval Patrick's signing of a new reform bill into law this week.  It was a quiet event, and FAMM's Barb Dougan was privileged and honored to witness it, as this article describes:

Despite widespread public attention on the bill and plans to hold a public signing ceremony in ­Ashland for legislation “further regulating animal control,” Patrick signed what has become known as “Melissa’s Law” before Gosule and one other advocate — Barbara ­Dougan of Families Against Mandatory Minimums — in his State House office. ...
The governor’s press secretary, Kim Haberlin, sent an e-mail to reporters to highlight another aspect of the legislation, which created parole eligibility for 580 nonviolent drug offenders. That provision will help reduce what the governor has branded the warehousing of criminals, while saving the state $2.5 million annually. The change takes effect at once.
You can read the law itself here, or learn about who it impacts and how it helps by reading our new factsheet.

The reforms that became law in Massachusetts this week only apply to people convicted of Massachusetts state crimes in Massachusetts state courts.  If you were convicted in federal court or the state courts of another state, they can't help you.

Good and Mad, um, Viewing for the Weekend

This comic strip from The New York Times isn't just a quick read -- it also says (or rather, shows), in one big square box, everything (or nearly everything) that's wrong with our criminal justice system, complete with the kind of stinging, ironic humor so many of us sentencing nerds appreciate.

It might just be the quickest Good and Mad Reading for the Weekend that we ever do here on the blog.

Thursday, August 2, 2012

Massachusetts Sentencing Reforms Become Law!

Massachusetts Governor Deval Patrick has agreed to sign new sentencing reform legislation into law!  From FAMM's press release on this momentous breakthrough:

The new law includes reforms that FAMM has supported for years:  limiting the state’s “school zone” law and making some drug offenders now in prison eligible for the same reentry opportunities – parole, work release and earned good time – that are available to most other prisoners. The new law also reduces the length of some mandatory minimum sentences and increases the quantity of drugs needed to trigger certain low-level trafficking offenses. The current reforms build on the first-ever reforms enacted in 2010, when certain nonviolent drug offenders in county houses of correction became eligible for parole.

FAMM’s Massachusetts project director Barbara J. Dougan made the following statement about the new law:
FAMM and its members welcome these sentencing reforms, as Massachusetts continues to improve ineffective and costly one-size-fits-all sentences for drug offenders. In the coming years, hundreds of drug offenders now in prison will benefit from the new law. They will be eligible for parole and have the opportunity to prove themselves worthy of returning home sooner. They will also be better able to prepare for their eventual return to the community due to their eligibility for work release and earned good conduct credits through vocational and educational programs. 
Eric Duphily, now serving a 13-year sentence for selling cocaine, is one prisoner who may benefit from the new law. At the time of his arrest, Duphily was addicted to cocaine and sold drugs to pay off a debt to his supplier. Yet he received the kind of sentence intended for kingpins.

Dougan said, “A nonviolent offender like Eric Duphily could be a tax-paying member of his community, using his productivity to support his family. Instead, taxpayers are supporting him at the cost of about $46,000 a year. Now he will have a chance to prove that is a good candidate for parole. But there is more to be done. Other states have moved beyond outdated ‘tough on crime’ laws by investing taxpayers’ money in treatment and re-entry programs to more effectively address recidivism. We look forward to Massachusetts joining that trend in the next legislative session.”

While FAMM welcomes the mandatory minimum reforms, Dougan noted that habitual offenders sentenced under the new “three strikes” section of the law will, without exception, receive the maximum sentence with no possibility of parole. Dougan said, “Whenever courts are required to impose mandatory sentences, inevitably there are cases where the punishment exceeds the crime. When the courts are required to impose maximum sentences, and possibly life sentences, it is even more critical to have a safety valve mechanism in place to avoid an excessive sentence is certain cases. We greatly appreciated the efforts of Gov. Patrick, Sen. Creem and other legislators to add limited judicial discretion to the law."

Contact FAMM Massachusetts Project Director Barb Dougan with any additional questions on the law, at bdougan@famm.org.

FAMM has moved!

FAMM has moved its offices!  We are now located at:

1100 H St. NW
Suite 1000
Washington, DC 20005-5490

Our phone number, fax, and website have not changed, and if you need to send a general email inquiry, email  us at famm@famm.org.