A Tale of Two Safety Valves

FAMM President Julie Stewart calls for greater use of two "safety valves" for federal offenders in this excellent editorial over at The Huffington Post today.

The column features the story of Stephanie George, who is serving a mandatory minimum sentence of life without parole for a nonviolent drug offense.  Since there is no parole in the federal system, the only way out of prison before death for Stephanie would be through a presidential commutation -- a sentence reduction that can only be granted by the President of the United States.  Unfortunately, that first "safety valve" option is a bit like winning the lotto -- President Obama has only granted one commutation while in office, out of thousands of applications.  The commutation review process, housed in the Department of Justice, is also in dire need of serious reform.

A second "safety valve" 

was created by Congress in 1994. This provision allows courts to give a drug offender less time in prison than the mandatory minimum requires, but only if he and his offense meet certain requirements. For example, the defendant must have little to no criminal history. If he has ever committed another felony (or even a crime like careless driving), regardless of its relevance to his current offense, he cannot qualify for the current safety valve. The result is that even a completely nonviolent, low-level criminal history can make an offender like Stephanie ineligible for the existing safety valve.

Both of these safety valves can be improved so that individuals are punished, but not over-punished, and so that taxpayers are not forced to pay millions to imprison people who pose no threat to public safety.

First, the president should demand that the Justice Department provide him a list of individuals, like Stephanie George, who have already paid a high price for their crimes so that he can commute their sentences. The president should also reform the pardon process to ensure greater transparency, efficiency, and accountability.

Second, Congress should replace the existing safety valve with a broader provision that gives courts discretion in more cases. Stephanie George does not need to die in prison, and her judge knew it. But because of the mandatory minimum sentence and the narrow, existing safety valve, he could not fashion a more appropriate sentence. A broader safety valve would allow judges to eliminate unwarranted disparity in sentencing by making sure that "a girlfriend and bag holder" does not get the same sentence as the drug kingpins Congress targeted with mandatory minimums.

Right on Crime: Reform Florida's Mandatory Minimum Sentences

The conservative criminal justice reform superheroes over at Right on Crime point out that drug courts in Florida have worked remarkably well at reducing the recidivism rate among participants. As they note, “The felony recidivism rate for drug court participants is 12 percent, compared to the control group’s rate of 40 percent.”

They also note that, despite the apparent success of drug courts, "Florida’s prison population has grown at a rate of 11.4 times between 1990 and 2009, while its population in general increased only 2.7 times,” and add that one of the reasons for that shocking statistic is Florida’s mandatory minimum sentencing laws, which they note are “some of the strictest mandatory minimum laws in the country.”

They’re right.

As the post notes, in 2010, the Florida Department of Corrections was “housing 5,135 inmates serving mandatory drug sentences. ... At a cost of $20,108 per year to keep an inmate in prison, mandatory drug sentences were costing Florida almost $103 million.” A recent report by Florida TaxWatch makes similar findings, and adds that 75% of the offenders serving mandatory sentences for drug offenses in Florida have no prior prison record.

What accounts for the apparent tension between the success of Florida’s drug courts and our insane incarceration rates? One reason is that offenders convicted of “drug trafficking” are ineligible for drug courts. That might make sense in the case of kingpins manufacturing and distributing massive amounts of illegal drugs for profit. However, because of the indefensible way Florida defines “trafficking” (e.g., possession of .14 ounces of prescription painkillers is "trafficking") far too often those convicted of “trafficking” are just addicts who happen to get caught. 

For instance, this report by Florida’s Office of Program Policy Analysis and Government Accountability shows that, of the 1,200 offenders admitted to prison for opioid trafficking in FY 2010-2011, half were arrested for possessing or selling fewer than 30 pills. 25% were arrested for possessing or selling 15 or fewer pills. 65% were identified as having a substance abuse problem, and were “at low risk for recidivism.” Nonetheless, they all face mandatory prison sentences at tremendous cost to taxpayers and little to no corresponding public safety benefit. 

What’s the solution? Right on Crime (wow, check out this list of people who have signed their statement of principles!) says:

Florida already has many tools it could use in order to implement more effective, efficient, and affordable alternatives to incarceration, particularly for those addicted to drugs. Drug courts have worked, and continue to work in Florida. It is time for policy-makers in Florida to do their part in reforming the mandatory minimum-sentencing laws that are costing taxpayers millions of dollars and no longer serving their intended purpose.

Makes sense to me.

~ Greg Newburn, FAMM Florida Project Director

I Sentenced 1,000+ People to Mandatory Minimums

That's the confession in this stunning article by federal judge Mark W. Bennett in the latest edition of The Nation. 

Judge Bennett describes how he dreamed of being a civil rights lawyer and ended up a federal judge in the Northern District of Iowa, sending over a thousand "small-time addicts" and "low-hanging fruit of the drug war" to federal prison for 5, 10, or 20-year terms -- without parole.

Are long mandatory sentences right for these small fry?  Judge Bennett says no -- and so do his jurors:

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor. ...

For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a “drug trafficker,” they never find a mandatory minimum sentence to be a just sentence.

(For the record, jurors can't be told what the mandatory minimum sentence is until after they vote to convict an offender.)

Judge Bennett appears in the new drug war documentary "The House I Live In," playing in theaters now.

What do you think:  is Judge Bennett right that mandatory minimums are far too long for many drug offenders?  Should jurors be told what the mandatory sentence will be before they decide to convict?

Christian Voices Oppose Mandatory Sentences!

On October 11, FAMM and Justice Fellowship co-hosted a special briefing for congressional staff, entitled "Christianity, Crime, and Punishment: Why Your Constituents Care."

Footage of the briefing is now available on FAMM's YouTube channel.  You can watch the remarks of all of our distinguished panelists:

• Dr. Barrett Duke, Southern Baptist Convention
• Galen Carey, National Association of Evangelicals
• Kathy Saile, U.S. Conference of Catholic Bishops
• Craig DeRoche, Justice Fellowship

And don't miss this opinion editorial by Craig DeRoche and FAMM's government affairs counsel, Molly M. Gill.  Christians support policies that are both just and rehabilitative -- and mandatory minimums are neither. 

... most Christians are more concerned that our current system does not reflect biblical teachings. According to all of the panelists, those teachings require both just punishment and restoration of offenders, victims, and communities. But we are failing on both counts.

As for just punishment, half of our federal prisoners are serving lengthy terms for nonviolent drug offenses, at an annual cost of $28,000 per prisoner. But two thirds of all federal drug offenders sentenced each year don't get the benefit of a fair, individualized punishment that matches their crime and their role in it. Instead, they get one-size-fits-all mandatory minimum sentences of five, 10, 15, or 20 years -- or even life without parole. These sentences require a limb for an eye, a leg for a tooth. They can be longer than the terms bank robbers and child rapists receive.

Mandatory minimums also fail completely at restoring offenders, victims, and communities. Instead, they have stuffed the federal prison system to 40 percent over capacity. Prisons should help offenders become self-sufficient, accountable people living crime-free lives, but overcrowding undermines a humane environment in which prisoners can focus on getting sober and becoming educated. Instead, prisoners (and prison staff) have to worry about and cope with the trauma of sexual and physical assaults, which proliferate when guards are outnumbered and overworked. Excessive sentences also wreak havoc on the innocent families prisoners leave behind. All of this becomes a recipe for recidivism and makes our communities less safe, creating more potential victims - the opposite of the community's goal. ...

Each year, thousands of American Christians volunteer with ministries like Prison Fellowship, visit and encourage prisoners, and care for their blameless families and children. But volunteering isn't enough. Christians now want to vote for lawmakers who share their belief in mercy, second chances, and redemption, even for the worst among us. Prison is often necessary to keep us safe, but our high recidivism rates show that it is rarely rehabilitative. In understanding this and supporting better options, Christians are steps ahead of most on Capitol Hill.

It's time for Congress to catch up.

Amen!

A Canadian Prosecutor Blasts Mandatory Minimums

North of the border today, there is an interesting interview with retired Canadian prosecutor Robert Gidden in Macleans.  One standard prosecutor line in support of mandatory minimum sentences is that they help prosecutors get guilty pleas more easily.  Gidden, for one, rejects that, and makes some other good comments, too:

Q What do you see as the main developments in federal criminal justice policy since the Conservatives came to power in 2006, and what do you make of them?
A Generally speaking the removal of judicial discretion means the accused will face a mandatory minimum penalty on many offences. The public likes that because they don’t like judges being soft on crime. The problem is there is no incentive for an accused not to fight every inch. That means the opportunity to resolve a case in a way that probably would be acceptable to the public is gone. Cases that would otherwise be relatively smooth or straightforward become very, very difficult battles.

Q So you don’t think uniform, tough penalties make sense?
A If you put every case that you have in the system through the most rigorous examination, you’ll break the system. There needs to be a balance.

In the United States, the U.S. Sentencing Commission recently found (see page 145 of this report) that federal offenders facing a mandatory minimum plead guilty less often than those who aren't (94.1% vs. 97.5%).

What might be a balanced approach?  How about a broader, more inclusive safety valve that applies to more mandatory minimum offenses?  People eligible for the safety valve plead guilty at higher rates than those who can't benefit from it (99.4% vs. 94.6%).

An expanded safety valve wouldn't remove mandatory minimums, but it also wouldn't jam the system, and it would prevent some of the unusual, absurd, and unintended results mandatory minimums create.  It's something both Canada and the United States should adopt.

Drug War Doc on The Daily Show With Jon Stewart

Eugene Jarecki, director of the new documentary "The House I Live In" (featuring FAMM's own Julie Stewart), has a wonderful interview with Jon Stewart on The Daily Show. Jarecki criticizes the drug war, mandatory minimum sentences, and notes growing bipartisan support for reform. The two-parter is worth listening to in its entirety.  Check it out:  Part 1 is here, and Part 2 is here.

And find a showtime near you right here.

Prison Crowding Undermines Safety

That's the finding of a powerful new report from the Government Accountability Office and the subject of this column in today's Washington Post.   

Of course, anyone who knows anything about mandatory minimum sentencing laws understands why our federal prisons are severely overcrowded, creating dangerous conditions for inmates and guards alike:  we are sending too many people to prison for too long.  (It also comes at too high a price for taxpayers.)  We measure public safety in terms of reductions in crime rates and violence -- but shouldn't reductions in crime and violence within prison walls count, too?  If safety inside prisons is one measure of success, mandatory minimum sentences are a failure.

“BOP officials reported increased use of double and triple bunking, waiting lists for education and drug treatment programs, limited meaningful work opportunities, and increased inmate-to-staff ratios,” the September report says. “These factors, taken together, contribute to increased inmate misconduct, which negatively affects the safety and security of inmates and staff.”

The prison facilities are crowded because the inmate population is growing faster than the bureau’s capacity. As the prison population grew 9.5 percent from 2006 through 2011, the agency’s capacity, increasing at 7 percent, didn’t keep up. Even with new facilities, the prison population grew from 136 percent of capacity to 139 percent, according to the GAO.

“Nearly all BOP facilities had fewer correctional staff on board than needed, with a BOP-wide staffing shortage in excess of 3,200,” the GAO said, citing a 2010 Justice Department study.
While crowding has increased, the inmate-to-staff ratio has gone down. Fewer officers is not a strategy for success. The consequences can be real and bloody.

“Serious correctional worker understaffing and prison inmate overcrowding is causing a significant increase in dangerous inmate-on-worker assaults,” Dale Deshotel, president of the American Federation of Government Employees Council of Prison Locals, told the House Judiciary Committee in December.

For the sake of everyone inside prisons, Congress should consider meaningful, front-end sentencing reforms -- and soon.  It can follow the lead of dozens of states around the country who have already seen the folly of endlessly filling prisons. Someone has to decide who needs the hard, harsh time of mandatory minimum sentences and who doesn't, and federal judges have the training and good vantage point to do so.  That's why FAMM is supporting more flexibility in federal sentencing laws, through solutions like a broader safety valve, for example.  From the column:

Much of this bad news could be better if Uncle Sam had greater flexibility in reducing his prison population. A number of states have done more than the federal government in modifying their sentencing policies.

“Because of the mandatory minimum sentences required for many federal offenses and the absence of parole for most federal inmates in the federal system, BOP generally does not have the authority to significantly adjust an inmate’s period of incarceration,” the GAO said in September. ... 

Congress made some progress on reforming drug sentencing laws with the Fair Sentencing Act of 2010, which lessened the severe sentencing discrepancy between federal crack cocaine and powder cocaine offenses. But the changes were not retroactive, so some offenders remain imprisoned with sentences based on a 100-to-1 disparity in the way crack and powder were treated for sentencing purposes, despite a law that recognizes that fundamental unfairness.
Reforming sentencing laws is one option the GAO listed for addressing crowding, along with allowing alternatives to incarceration, providing greater sentencing flexibility and increasing capacity.

Something needs to happen soon.

FAMM's Julie Stewart: In Theaters Now!

"The House I Live In" is an important new documentary about the failed War on Drugs.  It's now in theaters -- and features FAMM President Julie Stewart.  Check out the trailer below:

This review of the film from The Economist notes something that FAMM has known for years:  the individual stories of impacted people are the most powerful persuaders for change.

What one remembers at the end of the film are not the statistics or the policy arguments, but the people: Nanny Jenner, a black woman from Virginia who worked for Mr Jarecki’s family and whose son was an intravenous drug-user who died of AIDS; Shanequa Benitez, a shaven-headed petty drug dealer from New York with glittering eyes and a winning Artful Dodger appeal; and Kevin Ott, an inmate in Oklahoma serving life without parole for three ounces of meth—an amount that could fit in a small envelope. They are the casualties of this long and pointless war.

Here's a list of upcoming showtimes around the country.  Tell your friends and bring a crowd!  Everyone needs to see this film.

Christians Oppose Mandatory Minimums at Hearing

Last Thursday on Capitol Hill, FAMM and Justice Fellowship held an important briefing legislative staff on "Christianity, Crime, and Punishment: Why Your Constituents Care."  It was a standing-room-only event, and the distinguished speakers said some great things in opposition to mandatory minimum sentences:

“Policies like mandatory minimums have distracted us from the three primary areas of responsibility for government: making communities safe, restoring victims, and transforming lives of offenders so they can become productive members of society.”
-- Craig DeRoche, Vice President of Justice Fellowship, the advocacy arm of Prison Fellowship Ministries


“Punishment should fit crime - neither leniency nor excess is right.”
-- Barrett Duke, Vice President for Public Policy and Research and Director, The Research Institute of The Ethics & Religious Liberty Commission (ERLC) of the Southern Baptist Convention


“Evangelicals appreciate both the freedoms which we enjoy as Americans, and the rule of law that undergirds those freedoms. We support neither anarchy nor tyranny. In our recent history we have not been immune to the general trend toward a more punitive approach to criminal justice. But this tendency stands in sharp tension with the inherently hopeful message of evangelical faith, something that is consistently reflected in NAE statements on criminal justice reform. When we see prisoners as fellow human beings made in God’s image, we can no longer just lock them up and throw away the key.”
-- Galen Carey, Vice President for Government Relations, National Association of Evangelicals


“The Catholic Bishops have rejected mandatory minimums and other simplistic solutions because they fail to account for individual circumstances and eliminate chances for rehabilitation.”
-- Kathy Saile, Director, Office of Domestic Social Development, Department of Justice, Peace & Human Development/U.S. Conference of Catholic Bishops

“This is a critical election year, and the United States is at a crossroads in our approach to crime and punishment. We have the largest prison population and some of the harshest and most expensive sentencing laws in the world, including one-size-fits-all mandatory minimum prison terms. The faith leaders on this panel demonstrate that Christian voters believe that both the Bible and the budget demand congressional action on this issue.”
-- Molly M. Gill, Government Affairs Counsel, FAMM


Christians get it, and it's time for Congress to get on board with them.

Good and Mad Viewing for the Weekend

We blogged about the tragic case of Clarence Aaron a few months back.  He is serving life for a first-time crack offense, was denied a commutation after wrongdoing by the Office of the Pardon Attorney, and -- sadly -- is still in federal prison.  Clarence's case is enough to make even the most sedate among us storming mad.

Here's what some of his supporters did to raise awareness of his need for a commutation.  We hope this is inspiring for other commutation seekers and their supporters, too.

This Thursday: What Do Some Christians Think About Crime & Punishment

This Thursday, FAMM is co-hosting a special briefing on Capitol Hill with Justice Fellowship, the advocacy arm of Prison Fellowship Ministries, the organization started by the late, great Chuck Colson.  An excellent line-up of speakers will discuss their views on how Christian beliefs might best influence public policy in the areas of criminal justice and sentencing reform.  If you are in the DC, Maryland, or Virginia area, please attend and come prepared to ask our speakers questions!  E-mail Molly Gill at mgill@famm.org, or call (202) 822-6700 to RSVP.

Christianity, Crime, and Punishment: Why Your Constituents Care 

A joint briefing hosted by Justice Fellowship (the advocacy arm of Chuck Colson’s Prison Fellowship Ministries) and FAMM (Families Against Mandatory Minimums) 

WHEN: Thursday, October 11, 2:30-3:30 p.m. 

WHERE: Capitol Hill Visitors Center, HVC Room 200 

(at the intersection of East Capitol St. SE and 1st St. SE, Washington, DC)

***Refreshments Provided*** 

INVITED SPEAKERS: 

Kathy Saile, U.S. Conference of Catholic Bishops 

Galen Carey, National Association of Evangelicals 

Barrett Duke, Southern Baptist Convention 

Craig DeRoche, Justice Fellowship 

Molly Gill, FAMM 

The United States has the world’s biggest prison population – 2.3 million people and counting – and spends a whopping $70 billion per year to house them. Is there a better, more cost-effective way to keep our communities safe? Christians believe that the Bible and Jesus Christ have much to say about how we should punish crime and restore victims, offenders, and communities. The question is whether policymakers are listening. Come listen and participate in an honest discussion about Christianity, crime, and punishment.