Friday, November 30, 2012

New Report Shows Compassionate Release Barely Used

The Federal Bureau of Prisons blocks all but a few federal prisoners from compassionate release, Human Rights Watch and FAMM said in a report released today. Congress gave federal courts authority to grant early release – commonly referred to as “compassionate release” – for “extraordinary and compelling” reasons such as imminent death or serious incapacitation. But they cannot do so absent a motion by the Bureau of Prisons, which rarely submits the prisoners’ cases to the courts.

The 128-page report, “The Answer is No: Too Little Compassionate Release in US Federal Prisons,” is the first comprehensive examination of how compassionate release in the federal system works. Congress authorized compassionate release because it realized that changed circumstances could make continued imprisonment senseless and inhumane, Human Rights Watch and FAMM said. But if the Bureau of Prisons refuses to bring prisoners’ cases to the courts, judges cannot rule on whether release is warranted.


Since 1992, the Bureau of Prisons has averaged annually only two dozen motions to the courts for early release, out of a prison population that now exceeds 218,000. The Bureau of Prisons does not keep records of the number of prisoners who seek compassionate release.

Read FAMM's press release here.

Listen to FAMM Vice President and General Counsel Mary Price discuss compassionate release on NPR's Morning Edition here.

Here's the Associated Press's coverage, from The Boston Herald.  An excerpt:
Though the new report is generally critical of BOP policies, it cites some "promising signs" — including formation of a BOP working group to look at the compassionate release program. It said the BOP’s new director, Charles Samuels, has expressed interest in reforming the program and noted that the number of release cases forwarded to the courts had risen slightly under his leadership, to 37 between Jan. 1 and Nov. 15 of this year.
The report urges Congress to change the existing law, which gives prisoners no right to challenge BOP decisions in court. It also says the BOP should bring compassionate release motions to court whenever a prisoner presents compelling arguments, regardless of whether prison officials believe early release is warranted.
The BOP’s budget is more than $6 billion, and care of ailing and aging prisoners is a major factor in rising expenses. The report says one way to curb these costs would be increased use of compassionate release for prisoners posing minimal risk to public safety.

Wednesday, November 28, 2012

New Bill Increases Child Pornography Stat Maxes

On November 27, the U.S. Senate passed, by unanimous consent, a bill that increases the statutory maximum sentences for possession of child pornography from 10 years to 20 years.  The bill, H.R. 6063, passed the House in August, and President Obama is expected to sign it into law.

Fortunately, the bill does not create new mandatory minimum sentences.  Unfortunately, though, sentences for child pornography possession are already viewed by many as excessive.  In February of this year, the U.S. Sentencing Commission held a hearing and heard many concerns about the length of child pornography sentences, particularly for possession and receipt cases.  The Commission is currently doing an extensive study of federal child pornography sentences and will produce its findings and recommendations soon.

Read FAMM's factsheet on federal child pornography sentencing laws here.

"Gridlock of One"

Like us here at FAMM, San Francisco Chronicle columnist Debra Saunders is disappointed that the only pardons meted out this Thanksgiving went to turkeys.  In her column, she highlights a much more worthy recipient of presidential mercy:  Clarence Aaron, who is serving a life sentence for a first-time, nonviolent drug offense.

President Obama likes to complain about gridlock in Washington and blame Republicans for keeping him from doing his job. As president, he has the unfettered executive power to pardon individuals convicted of federal crimes or commute their sentences. Yet, while his 2008 campaign called for a review of federal mandatory minimum sentences to reduce the number of needlessly warehoused nonviolent drug offenders, Obama has pardoned a mere 22 offenders who served their sentences and commuted only one sentence. When it comes to acts of mercy, Obama has produced his own gridlock of one. ...
With his re-election secure, Obama has run out of reasons not to commute the sentences of nonviolent offenders.
Indeed, we hope to see more commutations and pardons granted during President Obama's second term.  But some of the gridlock may be the result of an Office of the Pardon Attorney that is not giving commutation applicants a fair shake.  The Obama Administration is looking into the claims of impropriety, but it should do more -- a wholesale reshaping of the way clemency requests are processed may be in order.

And a second term is the perfect time to do it.

Tuesday, November 27, 2012

"Snitch" is Coming to a Theater Near You -- Soon!

Call us a bunch of sentencing nerds, but we love us a movie trailer that mentions mandatory minimum sentences -- and features Dwayne Johnson, Susan Sarandon, Benjamin Bratt, Barry Pepper and a whole lot of other big-name actors in a story about how utterly messed up our drug sentencing system is.

The movie:  "Snitch."  The brand new trailer:  below.  It releases February 22, 2013, and we can hardly wait.


Snitching -- also known as providing "substantial assistance" to the prosecution by giving it information that helps the government arrest and charge other drug offenders -- is one of the only ways to avoid receiving a mandatory minimum sentence for a federal drug crime.  

Substantial assistance raises serious questions about the integrity and fairness of our justice system.  What if people lie and provide false testimony to escape a mandatory minimum sentence?  We're only kidding ourselves if we think there are no innocent people going to federal prison for drug crimes -- or drug quantities -- they had nothing to do with.  And the U.S. Sentencing Commission has found (see page 186) that drug offenders who are higher up in a conspiracy (and thus have more information to trade) are more likely to provide substantial assistance and get sentences below the mandatory minimums -- the very sentences Congress intended to apply to the higher-up figures in drug conspiracies.  The small fish don't have as much information to offer in exchange for a shorter sentence.  Is this fair? 

For some truly disturbing stories about the dangers of snitching, check out this article from The New York Times and this story from The New Yorker.

P.S.  A one-word reason that fans of The Wire should see this movie:  Omar!  See if you can spot him in the trailer.

Monday, November 26, 2012

Shackling Going the Way of the Dinosaur?

Believe it or not, it's still pretty common for pregnant female prisoners to be shackled while giving birth ... apparently because a woman giving birth is a big danger to others during that painful and precarious time.  [Please note our sarcasm.]

But there have been some positive signs recently that the shackling of pregnant women may be beginning its slow march to extinction.  California passed a law banning the shackling of pregnant inmates during pregnancy, labor, delivery, and recovery.  And in today's Washington Post, this article describes how Virginia's Board of Corrections is joining the ranks of states that ban or limit the practice of shackling during labor.  But we still have a long way to go:  two out of three states still allow or require this shackling.

FAMM raises this issue to highlight how we treat prisoners in this country.  They are human beings and former and future neighbors, yet we deny them the most basic dignity during one of the most human, life-altering, and intimate moments of their lives.  We've often highlighted on this blog what it really means to go to jail or prison -- what comes as part and parcel of punishment -- and being shackled while giving birth is one of those very real consequences that thousands face.  It's not enough to say, "Oh, well, they broke the law -- they have to live with the consequences."  We have to look at those consequences and question whether they are humane and just.  We are happy to see more states taking that hard look and making that examination when it comes to shackling pregnant inmates.

-- Stowe

U.S. Sentencing Guidelines, Simplified

Are you completely mystified by the U.S. Sentencing Guidelines?  Don't know the difference between a base offense level and a criminal history category?  Does the federal sentencing guidelines chart look like a Bingo card on acid to you?

These new videos from the U.S. Sentencing Commission might just save the day.

Three introductory films cover these important topics:

  • Part 1:  Overview of the U.S. Sentencing Commission
  • Part 2:  Overview of the Federal Sentencing Guidelines
  • Part 3:  Basic Guideline Structure and Initial Application Decisions
Start with these videos, and don't forget FAMM's resources online, and you're well on your way to becoming a true sentencing nerd.

Wednesday, November 21, 2012

Vote for Humans!

Today at 2 p.m. EST, President Obama will pardon yet another pair of turkeys, named Cobbler and Gobbler.  The White House is even having a Facebook campaign in which you can vote for your favorite of the two birds.

Yes, the Thanksgiving turkey pardon may be a fun and/or silly tradition, but it becomes an absurdity when thousands of nonviolent drug offenders go to prison every year and serve lengthy and unjust mandatory sentences that completely ignore the individuality of the offender and the special facts and circumstances of the crime.  Commutations (sentence reductions) are one of the only avenues for correcting an unjust sentence, and yet presidents increasingly fail to use that power. President Obama has granted only one commutation, out of over 6,200 he has received while in office.  This is tragic, because we live in a time when clemency is needed more than ever before.

This math suggests that there are deep, profound problems in the way the clemency power is being administered.  Out of 6,200 applicants, surely there are more than just one who deserve a second chance and a fresh start, who have rehabilitated themselves and paid their debts to society.  The stats undeniably show that what was once a regular, routine procedure has instead become an exercise in futility for thousands of prisoners and their families.  Fixing the broken-down clemency process is essential, but so is granting more commutations and pardons.

Mr. President, this Thanksgiving we vote for more clemency for human beings. 

Monday, November 19, 2012

Mass. Monday: Drug Lab Fiasco Questions

Boston Magazine’s “Boston Daily” blog features a thought provoking blog post by Prof. Jean Trounstine. Called "Unanswered Questions about the State Drug Lab Fiasco," it may be of interest to our Massachusetts supporters -- or anyone wondering how in the world Massachusetts finds itself in the middle of an unprecedented criminal justice crisis. It affects drug offenders convicted under Massachusetts law as well as federal prisoners whose cases are from Massachusetts.
It’s been nearly two months since news broke about chemist Annie Dookhan’s unprecedented, widespread mishandling of evidence at the now-closed Hinton State Lab. While numerous questions remain, one thing is for sure: In the fallout of the crisis, it’s not just Dookhan’s actions that are at stake for Massachusetts—but also millions of dollars in state funds, lab protocols, other personnel, thousands of cases, and the objectivity of Attorney General Martha Coakley’s investigation. 
Over 34,000 cases have been identified as involving possibly tainted drug samples handled by Dookhan -- meaning lots of wrongful convictions may have happened. Prof. Trounstine poses some good questions that move the conversation beyond the “why did she do it” and “whose case is affected” level.
1. Why is Massachusetts plowing ahead to potentially spend $100 million to re-prosecute thousands of cases—at least 34,000 drug samples were tainted—when drug prosecutions fail to reduce overall drug addiction or drug offenses?
• The so-called “war on drugs” has not reduced crime through prosecution and conviction of ordinary drug cases. Even Governor Deval Patrick said that “the warehousing of non-violent drug offenders has proven to be a costly failure.”
• In a letter dated October 11, 2012, to Massachusetts Attorney General Martha Coakley, the American Civil Liberties Union of Massachusetts (ACLUM) and Families Against Mandatory Minimums (FAMM) suggested that the state shouldn’t retry cases without a charge for a violent crime or a weapons offense, should dismiss all cases involving a police officer or prosecutor who at any time communicated directly with chemist Annie Dookhan, and should allow the release of prisoners who received a sentence based on Dookhan’s testing and have served more than half of their time. ...
4. Why does one gram of a drug make the difference between one sentence and another? Should weight equal culpability?
• Barbara Dougan, director of FAMM in Massachusetts, says that under drug sentencing laws in Massachusetts, the addict who agrees to do a favor for a dealer—give a ride, make a phone call—in order to earn a few bucks is prosecuted according to the weight of the drug, just like the dealer. According to Dougan, he or she can be subject to the same penalties as big time players “because our trafficking laws are based solely on the weight of the drugs involved and nothing else.”
This column from the Patriot-Ledger asks whether it would be fairer, cheaper, and more effective simply to dismiss categories of impacted drug cases, rather than do a lengthy and expensive case-by-case review to weed out the flawed convictions (if such weeding is even possible).

It’s now time to face facts: Scrapping the case-by-case approach could save millions of dollars and restore faith in the justice system.
It has always been clear that the scandal imperils tens of thousands of drug cases. In early October, prosecutors estimated that a case-by-case response would cost $50 million over five years. Nevertheless, they forged ahead.
Even then, the case-by-case approach was puzzling. Re-prosecuting allegedly tainted cases might work for violent crimes, but for drug crimes it’s foolish. According to a Massachusetts Bar Association task force, drug cases have made “not a dent” in drug use.
So the ACLU of Massachusetts and Families Against Mandatory Minimums have asked prosecutors to abandon a case-by-case approach, and to instead dismiss broad categories of cases.
For example, we asked prosecutors to drop any case against a defendant who was not charged with violent crime or weapons offenses, and any case in which the defendant has served at least half of his sentence. The nonviolent cases are least likely to be worth litigating again because they were least likely to have been worth litigating in the first place. Defendants who have served substantial time based on Dookhan’s word, meanwhile, have suffered enough.

Dookhan worked in the Hinton (Jamaica Plain) drug lab from 2003 to 2011. The state has identified about 1,140 people who are currently serving drug sentences whose evidence was analyzed by Dookhan. Many of those have already been notified. However, if you have a loved one who may be affected, they can call the Committee for Public Counsel Services (the public defender’s office) at 1-800-882-2095 or 617-482-6212. FAMM can also send them a drug lab form to fill out and return to the public defender’s office.  Contact our Massachusetts project director, Barb Dougan, at 617-543-0878 or bdougan@famm.org. For the prisoner’s own protection, the public defender asks that all inquiries and information come directly from the prisoner.

Friday, November 16, 2012

Zombie Justice?

Many of you are probably familiar with AMC’s hit series, “The Walking Dead.” For those unfamiliar, the show centers on a small band of people trying to survive in the aftermath of a zombie apocalypse. At times, the show is terrifying. It’s often brutal, too, as characters are forced to watch friends and family die, and make impossible moral choices in a world where zombies outnumber survivors 5,000 to 1.

On the show, “When a person dies, the virus they carry reactivates critical areas of the brain that support necessary vital systems, resulting in reanimation. Because only a portion of the brain is reactivated, the reanimated person retains only a physical resemblance to their former self.”

This partial reanimation results in the creation of what the survivors refer to as a "walker": a slow-moving, barely sentient zombie whose only "goal" is stumbling across and devouring its next meal. Walkers display no personality or purposive behavior, and nothing resembling creativity.They are a mindless horde without will, without creativity, and without anything that could be described as meaningful personhood. Put another way, walkers "are void of any emotional expression and thought."

Something occurred to me the other night as I was catching up on the series. We empower judges to make decisions that have enormous impact on citizens’ lives. We choose them in part because they possess certain traits (e.g., a sense of justice, fairness, even-handedness, empathy, objectivity) that give us confidence they will make the right call most of the time. Mandatory minimums, of course, deprive judges of any discretion to impose appropriate sentences. As a result, in a case with a mandatory minimum we could replace a sentencing judge with any of the lumbering, brain dead “walkers” and the sentence wouldn't change at all.

Citizens deserve better than zombie justice.

~ Greg Newburn
Florida Project Director

Cutting Prison Costs from Both Ends

We missed this important editorial from The New York Times from last weekend.  It calls for better (and more) reentry programming and eliminating obstacles to successful reentry.  While we agree wholeheartedly with that message, we found a vital point lacking:  back-end reforms that reduce recidivism are not, standing alone, enough to make a real dent in our overincarceration conundrum.

If we want to see real downsizing of prison populations -- and costs -- we need front-end reforms that stop sending so many people to prison for so long.  Mandatory minimum sentences have caused prison populations and costs to soar over the last 30 years.  States across the country know it, and they have started passing reforms that are turning off the faucet, sending fewer people into their overflowing prisons and letting them return to society sooner.  Better reentry programming in and out of prison will surely drive down recidivism, but it's not enough.  We need to be smarter on all ends to see real cost savings.

Thursday, November 15, 2012

Massachusetts Live!

Got questions about FAMM's sentencing reform projects in Massachusetts?  Tune in to our live Facebook forum with Massachusetts Project Director Barb Dougan, happening live today at 12:00 p.m. EST and 7:00 p.m. EST.  Click here to ask your questions!

Wednesday, November 14, 2012

Voters Moving, Congress Standing Still?

Reason's Radley Balko has a very interesting column over at The Huffington Post today, looking at this election year's big wins on marijuana legalization (Colorado, Washington) and three strikes sentencing reform (California) and asking whether voters -- and Congress -- might finally be abandoning their 30-year obsession with "tough on crime" policies.  After all, only a whopping 7 percent of Americans think we are actually winning the War on Drugs. 
The recent results seem to indicate that at least in some parts of the country, the electorate is paying more attention to criminal justice issues, is more willing to hold law enforcement officials accountable and is less credulous when it comes to tough-on-crime posturing.

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.

"While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses. We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind.
What's stopping Congress from following the examples of innovative, reform-minded states around the country?  It might be fear of being labeled "soft on crime" by police and prosecutors.  It might be that the federal government just doesn't have the budget pressures the states do (though a fiscal cliff and a sequester might help with that).  It could be a lack of bipartisanship:
Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support. Whether or not it’s entirely accurate, Democrats are perceived as soft on crime, and Republicans as tough on crime. So, when Republicans call for sentencing or drug reforms, it becomes safe for everyone to support the reforms. It’s the Nixon goes to China syndrome."

But even here, there has been some movement. In addition to the 2010 law addressing the crack/powder cocaine sentencing disparity, some conservatives are beginning to talk about criminal justice reform, particularly when it comes to sentencing and prisons. The advocacy group Right on Crime has had some success over the last few years bringing many of these issues to the attention of conservative politicians and pundits. The conservative flagship think tank the Heritage Foundation recently launched its "overcriminalized" project, which critiques the ever-growing criminal code and the expanding power of prosecutors. A number of conservative voices have recently come out against the death penalty, including Brent Bozell, Richard Viguerie, and David Brooks.
Or maybe the reason we haven't seen wide-scale federal sentencing reform is that we simply haven't locked enough people up yet:
"I think with the soaring prison population, and with groups like Chuck Colson's Prison Fellowship, many conservatives have started to come into contact with people who are or have been in prison," [FAMM board member and Criminal Justice Policy Foundation president Eric] Sterling says. "Having personal contacts like that can change your views. When you're close to it, you start to realize how excessive it has become. And I think it can speak to religious values. Too little punishment is wrong. But they're seeing that too much punishment is just as wrong."
So, voters and Congress, it's a race to sentencing reform.  Who will get there first?  We don't know.  But we do know that at the end of that race, everyone wins.

Tuesday, November 13, 2012

Remembering Veterans - In and Out of Prison

This Veterans Day, we celebrated the men and women who served in our country’s armed forces. We hope everyone took a minute to silently (or publicly) thank our American veterans.

A very sad reality is that many veterans now live behind bars as federal and state prisoners. They fought for our freedom and yet they are no longer able to enjoy it themselves. I don’t think veterans are exempt from the law, but I also know that for many veterans the seeds of their later misconduct were sewn during their military service. Some developed drug addictions and others suffered from post-traumatic stress disorder, to name just two.

One of those veterans is Ernie Montgomery. Ernie fought in Vietnam. After returning home, he could not find anything to match the adrenaline high he got from “the rush of war.” The closest experience he could get was barroom fights, a bad habit that landed him in jail a few times. Ernie’s downfall, however, came when he took part in a large marijuana conspiracy.

Thanks to our harsh, mandatory sentencing laws, Ernie was sentenced in 1992 to 31 years in federal prison. He was 44 years old. Luckily, FAMM won some marijuana reforms in 1995 and Ernie’s sentence was reduced, but he still served 20 years in prison. He was released in May 2011.

Once again, he had to learn to adjust to regular life. Ernie said that he was fine once his wife taught him how to pump gas! When Ernie went to prison there were no self-serve gas pumps or debit cards. Ernie said he was also greatly helped by a booklet titled “Planning For Your Release: A Guide for Incarcerated Veterans,” published by the National Coalition for Homeless Veterans. My colleague Andrea Strong sent the booklet to Ernie while he was nearing the end of his prison term. He was able to set up an appointment to meet with the Veterans Administration (VA) upon his release.

What he learned was that he was eligible for medical benefits as soon as he left prison. He also was able to apply for disability compensation due to his exposure to Agent Orange in Vietnam and other issues. He has not yet started to receive any compensation because the claims for disability are backlogged now due to the number of returning vets from Iraq and Afghanistan, but he is getting close.

Ernie told me that he wants other veterans to get the same help he did. That’s why I am writing to recommend that those in prison who are veterans and nearing the end of their sentences obtain a copy of “Planning For Your Release: A Guide for Incarcerated Veterans.” You can request a copy by sending a letter to:

National Coalition for Homeless Veterans
333 1/2 Pennsylvania Ave., SE
Washington, DC 20003-1148

Alternatively, you can call toll-free at 1-800-VET-HELP. The booklet is available online at http://www.nchv.org/.


Julie Stewart 
Founder and President, FAMM

Friday, November 9, 2012

Three Strikes -- 3,000 Offenders

In the wake of California's passage of Proposition 36, which reforms the state's infamous three strikes law, there are potentially up to 3,000 California state prisoners who could be eligible for fairer sentences and release.  The releases won't be the end of civilization as we know it, or fill the streets with violent offenders, as described in this Los Angeles Times article:
A day after California voted to soften its three-strikes sentencing law, defense lawyers around the state Wednesday prepared to seek reduced punishments for thousands of offenders serving up to life in prison for relatively minor crimes.
The process of asking courts to revisit old sentences could take as long as two years and benefit roughly 3,000 prisoners. They represent about a third of incarcerated third-strikers.
Proposition 36 garnered about 69% of the vote. The initiative won in all 58 counties, amending one of the nation's toughest three-strikes laws, one that had overwhelming voter support when it was approved in 1994 amid heightened anxiety over violent crime.
"People want a fair and just criminal justice system," said Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes. "The passage of Proposition 36, especially by its margin, has given some hope … to people behind bars who have been forsaken by their families and society."
Courts can reject a request to reduce a sentence if they determine the prisoner is a danger to public safety. Inmates with prior convictions for rape, murder and child molestation cannot be released under the measure.
"This is not going to open the prison floodgates," said Garrick Byers, a senior attorney with the Fresno County public defender's office.
Nothing better shows the need for retroactivity of the California three strikes reforms than the stories of state prisoners and families serving those sentences:
Cashier Debbie Curry woke up Wednesday to find California voters had given her a priceless gift: hope. ...
Curry's husband, Charles Airy, has been locked up in Vacaville on a life sentence since 2001 for drug possession. His previous two strikes were for nonviolent burglaries back in the 1960s and 70s, she said.
"Oh my God, I'm just so elated and grateful,'' Curry said. "It's not just my husband who has been incarcerated. I've been incarcerated, waiting for him.''
She's not the only one who envisions a new life for her family. Alberta Manzanares' brother has served 17 years of a life sentence for stealing a credit card in Santa Clara County. His previous strikes also were burglaries, she said.
"Oh my God, when I heard it on the news, I was like, crying,'' said Manzanares. "He might be coming home.''
If you have an incarcerated loved one in a California state prison who you think might benefit from Proposition 36, you should contact a criminal defense attorney in California.  While FAMM applauds the reforms and is thrilled that they are retroactive, we are unable to provide people with legal advice, representation, or referrals to attorneys.

The New Faces in the 113th

The 113th Congress has now been elected and is slated to start work in January 2013, and it will include lots of new faces.

Courtesy of Roll Call, here's a full list, organized by state.  It includes brief snapshots (and literal snapshots) of the new Members of Congress.  We warmly congratulate all of them on their victories.

Rest assured, FAMM will work with anyone and everyone to oppose new mandatory minimum laws and reform our existing ones.

I'm Tired of Sending Drug Offenders to Prison

Such is the lament of federal district court Judge Mark Bennett in this excellent editorial, published over at the Pittsburgh Post-Gazette today (in case you missed it when it first appeared in The Nation).  Judge Bennett provides an example of how mandatory minimum sentences can make sentencing miserable -- for himself and others:

I recently sentenced a group of more than 20 defendants on meth trafficking conspiracy charges. All pled guilty. Eighteen were "pill smurfers," as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers.
These people did not sell or directly distribute meth; there were no hoards of cash, guns or counter-surveillance equipment. Yet all of them faced mandatory minimum sentences of 60 or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all 20 years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for "good time."
Now that the elections are over, grim reality is sinking back in here in Washington and around the country.  We're facing a fiscal cliff, a possible sequestration of funds, and a still-divided Congress.  Mandatory minimum reform is one subject that should get the support and attention of both parties.  Sending people to prison isn't cheap -- and we're living in an age when every dollar counts.

Every human life counts, too.

Thursday, November 8, 2012

Let the Betting Begin!

A new presidential term often means new cabinet appointments -- and people are already wondering if that means a new attorney general at the U.S. Department of Justice.  Current Attorney General Eric Holder has said nothing (so far) about leaving, but that isn't stopping The Wall Street Journal from guessing who would replace him if he did, in fact, step down:
we have some other names to put in play:

Sheldon Whitehouse, U.S. senator for Rhode Island. Before he was elected to the Senate in 2006, Mr. Whitehouse was Rhode Island’s U.S. attorney and attorney general. He is a member of the Judiciary Committee.

Amy Klobuchar, U.S. senator for Minnesota. Also a member of the Senate Judiciary Committee, Ms. Klobuchar was elected to the Senate in 2006. Before that she was prosecutor for Hennepin County, which includes Minneapolis and 45 suburbs.

Preet Bharara, U.S. attorney for the Southern District of New York. He is the head of the most prominent federal prosecutor’s office in the country, and Mr. Bharara has received high marks for his performance. He was previously Sen. Charles E. Schumer’s top aide on the Senate Judiciary Committee and a federal prosecutor in the office he now runs.

Neil MacBride, U.S. attorney for the Eastern District of Virginia. Mr. MacBride has been in that role since 2009. Before that, he was associate deputy attorney general at the Justice Department and a federal prosecutor in the District of Columbia. Mr. MacBride also had a stint as chief counsel to then-Sen. Joe Biden on the Senate Judiciary Subcommittee on Crime and Drugs.

Tony West, acting associate attorney general. Mr. West is currently the No. 3 official in the department, behind Deputy Attorney General James Cole. He has run the department’s Civil Division since the early days of the Obama administration, and before that, he was a litigation partner at Morrison & Foerster LLP.

Kathy Ruemmler, White House counsel. Ms. Ruemmler has Department of Justice roots, and she’s probably too senior now to return there as anything less than attorney general. She was a member of the Enron Task Force, and after a stint in private practice, joined the Obama administration as a top official in the Office of the Deputy Attorney General, which manages the department’s day-to-day affairs.
Got any other guesses?  Leave them (and who you're putting your money on) in a comment.

(For the record, FAMM has no idea what's gonna happen.)

Wednesday, November 7, 2012

Not Just a Good Day for Obama

President Obama isn't the only person who had a good Election Day -- in states around the country, supporters of state crime and sentencing referendums had reason to cheer, too.

In California, voters narrowed the scope of their infamous three strikes law.

The measure, which passed handily by more than a 20 percentage-point margin [!!!], revises the Three Strikes Law to impose a life sentence only under two circumstances -- when the new felony conviction is "serious or violent,'' or for a minor felony crime if the perpetrator is a murderer, rapist or child molester. Under the existing Three Strikes law, only California, out of 24 states with similar laws, allows the third strike to be any felony.

As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.
Good riddance to those kinds of injustices!  And the big margin of victory shows that California voters understand something their legislators don't:  mandatory minimum sentencing laws produce too many crazy, unintended, common sense-defying consequences.

In Washington State and Colorado, voters legalized recreational use of marijuana.  Results on pot referendums were mixed around the country, but generally leaned toward loosening marijuana restrictions:
Under the measures in Colorado and Washington, those 21 years of age and older will be allowed to purchase up to one ounce of marijuana. Colorado’s Amendment 64 passed with 54 percent of the vote, and Washington’s Initiative 502 garnered 55 percent.
However, a similar ballot measure in Oregon was rejected, with 55 percent voting against.
Ballots in three states — Massachusetts, Arkansas and Montana — included referendums on medical marijuana. Voters approved the initiatives in Massachusetts and Montana, but Arkansas’ Issue 5 was defeated.
(For the record, FAMM has no position on marijuana legalization.)

But a word of caution to those contemplating a move to Colorado or Washington to toke up or open up shop:  marijuana possession, growing, and distribution are still federal crimes, often carrying heavy mandatory minimum prison sentences.  Just because it's legal in a state doesn't mean it's no longer a federal crime -- and so far, the Department of Justice is mum on how it plans to address that conflict.

At a minimum, we hope the new referendums on marijuana and three strikes law reform spark a conversation on reforming federal mandatory minimum sentencing laws.  States have been way out ahead of the feds on reforming mandatory minimums, and the results have generally been good (no huge drug crime rate spikes, plus some prison cost and bed space savings for taxpayers).

This year, the states have shown their desire for innovation and, in the case of California's three strikes law, more common sense in sentencing.  We hope Congress takes a cue from the states and gives mandatory minimum sentencing reform a real shot in 2013.

Tuesday, November 6, 2012

Also on the Ballot...

Candidates aren't the only things on the ballot this year:  propositions to alter criminal and sentencing laws are also on ballots in many states, as this handy map over at The Crime Report shows.

Today, voters in 17 states are considering ballot measures and referendums that could shape the future of criminal justice policy in America.
Among the hot-button issues voters will decide are: the legalization of marijuana in Washington, Oregon and Colorado; decriminalization of assisted suicide in certain circumstances in Massachusetts; the abolition of the death penalty in California; and new abortion regulations in Montana.
And let's not forget a significant change to California's infamous mandatory minimum "three strikes" law.  Among other changes, Californians will be deciding today whether that law should be changed so that life sentences only apply when the third strike is "serious or violent."  It's called Proposition 36, and FAMM will be keeping tabs on it and many of the other propositions around the country.

So, don't forget to vote, if you can!  It's an important election in more ways than one.

Monday, November 5, 2012

Passing the Bar - and FAMM is Proud

FAMM is immeasurably proud of long-time supporter and friend Serena Nunn, who today will be sworn in to the bar of the state of Georgia, after a long and tireless effort to become a practicing lawyer.

We tip our hat to Ms. Nunn and give her our congratulations.  Debra Saunders at the San Francisco Chronicle covers her story and explains why today is so special for Ms. Nunn:

President Bill Clinton used his presidential pardon power in July of 2000 to commute the sentence of Serena Nunn, who was sentenced to 15 years for a first-time nonviolent drug offense when she was 19. The pardon shaved three years off Nunn's sentence. Nunn told me over the phone, "I thought then that it was a great thing that a president used his power to help an average person."

Nunn later graduated from college, then the University of Michigan Law School. Last month, having passed a character fitness test, Nunn passed the Georgia bar. On Monday, she will be sworn in as an attorney.
How can a convicted felon become an attorney? The answer is not that Nunn wasn't guilty. She broke the law. She admits it. She knows she deserved some punishment.

But 15 years? That hard time was a function of a federal mandatory minimum system that overly punishes women who foolishly refuse to testify against their drug-dealer boyfriends. "If mandatory minimum sentencing did not exist, no judge in America, including me, would have ever sentenced Ms. Nunn to 15 years in prison based on her role in the conspiracy, her age and the fact that she had no prior criminal convictions before the instant offense," sentencing Judge David Doty later wrote to Clinton.
Nunn's luck changed when Families Against Mandatory Minimums publicized her plight. In 1997, right-leaning lawyer Sam Sheldon read about Nunn in the Minneapolis Star Tribune and was outraged. He took on her case pro bono, then proceeded to hector prosecutors and local politicians in his bid to win Nunn a presidential commutation.
Sheldon, who works for the Justice Department, later became a federal prosecutor. He and his family will be there to watch Nunn take the oath.
Nunn knows that she is blessed. She has seen others leave prison only to face a "permanent punishment," of doors slammed when ex-convicts looked for work or social acceptance.

But she had the Families Against Mandatory Minimums, Sheldon, a pass from prominent politicians and a great-grandmother who told her, "You outlive it."
"She meant," Nunn said, "that when you let your good outdo your bad, then you've outlived it. You can be remembered for something better than your mistake."
Ms. Nunn is an excellent example of how people can change, that crimes don't define people forever, and that people deserve -- and make good on -- second chances.  Unfortunately, fewer people than ever before receive second chances like the one Ms. Nunn received:
Nunn has applied for a presidential pardon, which would erase her conviction. "I'll never be able to wipe away what I did and the fact that I went to prison," said Nunn, "but I can do the best that I can when I go forward."
During our talk, Nunn never brought up the subject of race. She is black, like so many other victims of the federal system's oversized boot.
Despite his erstwhile criticism of federal mandatory minimums, America's first black president may be of little to no help to her. I thought President George W. Bush was stingy with the pardon power, but Bush did issue two commutations in his first term, 11 total, as well as a total of 189 pardons. The Bush record beats Barack Obama's one commutation and 22 pardons.
Maybe Obama will be better after the election, some hope, when, win or lose, he could commute sentences without fear of alienating voters.
We share that hope, but we don't think pardons and commutations should be reserved for post-election and end-of-term times. There are many deserving federal prisoners and ex-offenders who need and deserve justice and a fresh start sooner than once every four years.

Clemency is one part of our democracy that shouldn't run on the election cycle.

Get Out and Vote? Maybe Not

The election, the election, the election.

It's all anyone's talking about, but across the country, there are millions who can only talk -- and not vote.

A good editorial in The New York Times this weekend discusses the plight of millions who can't get out and vote tomorrow:  ex-convicts.

The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies. They will bar about 5.85 million people from voting in this year’s election.

In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life.
Nationally, nearly half of those affected have completed their sentences, including parole or probation.
Disenfranchisement is a painful and important issue to many FAMM supporters.  FAMM can't tell you how to vote, and we are a nonpartisan organization.  But we encourage those who have a conviction to contact the authorities in your state and find out if you can vote (often, the proper authority is the department of state for your state).  We encourage those who can vote to do so.  Happy election season, all.

Friday, November 2, 2012

Good and Mad Reading for the Weekend

Dafna Linzer does it again, providing us with yet another anger-producing article on the practically defunct pardoning process in the Land of the Free.

The maddening news is no surprise:  President Obama has granted pardons (22) and commutations (1) at the lowest rate of any modern president.  
He has given pardons to roughly 1 of every 50 individuals whose applications were processed by the Justice Department. At this point in his presidency, Ronald Reagan had pardoned 1 of every 3 such applicants. George H.W. Bush had pardoned 1 in 16. Bill Clinton had pardoned 1 in 8. George W. Bush had pardoned 1 in 33.
To be fair, it's not entirely President Obama's fault:  
To determine who receives clemency, Obama, like his predecessors, relies on recommendations from the Office of the Pardon Attorney, the arm of the Justice Department that reviews applications. The office — led by Pardon Attorney Ronald Rodgers, a former military judge and federal prosecutor — rarely dispenses endorsements, however.

Several administration officials who agreed to discuss pardons on the condition of anonymity said the president pardoned nearly every person recommended by Rodgers for approval in his first two years in office, but that such applicants were few and far between. While the number of applicants has increased in recent years, Obama — based on Rodgers' recommendations — is denying more people more swiftly than any of his recent predecessors, the data shows. ...
Currently, two government officials said, there are about a dozen positive recommendations and hundreds of negative ones waiting for the president to act on.

At least one commutation request is pending. The White House also has asked for a fresh review of the case of Clarence Aaron, who is serving a triple life-sentence, without parole, for his role in a drug conspiracy. ProPublica and The Washington Post published a story about Aaron's case in May.
We are simply flabbergasted that, of the thousands upon thousands of law-abiding ex-offenders and the 220,000 people currently in federal prisons (mostly for nonviolent drug, gun possession, and immigration offenses), there are only a dozen deemed worthy of a second chance.

These numbers scream for reform.  Whoever the next president is, he should launch a reform effort to ensure that pardon and commutation applicants get an unbiased, meaningful review of their requests, and he should use the pardon power early and often.

Regardless of who wins the election, President Obama still has ample time and opportunity to improve his clemency record.  We hope he seizes it.

Thursday, November 1, 2012

Not Your Everyday Mandatory Minimum

Most people getting mandatory minimum sentences in federal courts fall into three major offense types:  drugs, guns, and child pornography.  But there are over 170 mandatory minimum sentences in the federal code, and, as this story shows, some of them might surprise you -- and produce surprising results.

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land. ...

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.
Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights.
Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle. ...
Hogan ... sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.
While Judge Hogan's sentences are almost certain to be reversed on appeal (there is no safety valve for the mandatory minimum involved here), tell us what you think.  Did the judge get it right?  Should he have discretion in this kind of scenario, where prosecutors arguably should never have brought these particular charges?  Should there be a safety valve for cases like this?

Leave a comment and share your thoughts.

Do These Pot Sentences Make Sense?

This interesting article over at Salon presents some of "the harshest penalties handed down for pot in recent history" and may include some cases drug war-watchers are familiar with.

FAMM isn't working to legalize marijuana or medical marijuana; rather, our goal is sentences that fit the crime and the individual.  Federal marijuana offenses still carry mandatory minimum sentences of five, 10, 20 years or even life without parole.  Thousands of marijuana offenders still get them every year.

These harsh sentences should raise serious concerns among voters and taxpayers.  Locking up one federal pot offender for a year costs $28,000, and the federal prison system is already severely overcrowded.  Are mandatory minimums for pot crimes the best use of our scarce prison beds and budget resources?  Do those mandatory minimums make us safer?  Do they result in just punishments?

As the debates on medical marijuana, pot legalization, and pot decriminalization swirl around us, the discussion of fair and individualized sentencing for marijuana offenses (and all drug offenses) can be overlooked.  FAMM is still taking a hard look at the need for proportionate and individualized punishment for pot, because it's still missing from our justice system.