Thursday, January 31, 2013

Did Debi Campbell Get Justice?

Over at TakePart, this article documents the long journey of FAMM supporter Debi Campbell.

You tell us:  did Debi get justice?
When Debi Campbell got busted serving as a middleman in a California-to-Texas meth pipeline, she knew she’d do time in prison. What she didn’t realize is that she’d spend nearly two decades there—with virtually no hope for early release.
“I wasn’t a kingpin. I was a nobody,” Campbell tells TakePart. “I needed money to get my kids out of foster care.”
Police caught the woman in charge of the Texas end of the operation selling the California product Campbell helped ship in the mail. Once arrested, the Texan agreed to work with the government to set up Campbell—in exchange for immunity from any prison time. That’s how Campbell came to face conspiracy drug charges.

Federal agents eventually charged Campbell with conspiracy to possess with intent to distribute ten kilograms of meth—a number that Campbell says was completely made up by her co-conspirator.
“She was facing life in prison,” says Campbell. “She told them whatever they wanted to hear.”
With no evidence of that volume of drugs other than the snitch’s testimony, the ten kilograms of meth Debi was charged with trafficking happened to be just enough to trigger an automatic “mandatory minimum” 235-month sentence—even though she was a first-time offender.

Because Campbell disputed her co-conspirator’s claims about the volume of meth she helped move, the judge tacked on an additional four years of prison time for “obstruction of justice.”
In other words, Campbell received four years in prison for disputing the word of a co-conspirator who had zero incentive to tell the truth and got off virtually scot-free.
“Debi Campbell’s almost 20-year mandatory sentence was overkill, but that’s what happens every day in courtrooms and prisons cells across America, because of the inflexibility of mandatory minimum sentencing laws,” Monica Pratt Raffanel, communications director of Families Against Mandatory Minimums, tells TakePart.
Debi is the reason FAMM is working to repeal mandatory minimum sentences.  People should get individualized, fair sentences that make sense.  Americans paid a lot of money to keep Debi in prison for 20 years, and it didn't make us any safer.  Her sentence is both unjust and nonsensical.

Throughout the 113th Congress, we'll be working hard so that there are fewer stories like Debi's in this country.

Wednesday, January 30, 2013

More Policing + Fewer Prisoners = More Public Safety

That simple equation is how New York (City and state) has reduced both crime and its prison population.  This fascinating New York Times article documents how crime has plunged:
As the American prison population has doubled in the past two decades, the city has been a remarkable exception to the trend: the number of its residents in prison has shrunk. Its incarceration rate, once high by national standards, has plunged well below the United States average and has hit another new low, as Mayor Michael R. Bloomberg announced recently.
And crime in the city has fallen by more than 75 percent, almost twice as much as in the rest of the country.
Whatever has made New York the safest big city in America, that feat has certainly not been accomplished by locking up more criminals.
So, what has been working?  In the 1990s, New York started abandoning the get-tough sentencing policies of the 1980s, scaling back its mandatory minimum sentences and opting for more police who policed high-crime areas called "hot spots" more frequently.  Cops cost money, but not nearly as much as prisons.  In fact, New York has been saving money:
Even as the city grew by nearly a million people in the last two decades, the number of New Yorkers behind bars fell by a third, to below 40,000 today.
If the city had followed the national trend, nearly 60,000 additional New Yorkers would be behind bars today, and the number of city and state correction officers would have more than doubled since 1990, said Franklin E. Zimring, a criminologist at the University of California, Berkeley.
By not expanding the jail and prison populations, he calculates in his 2011 book, “The City That Became Safe,” the city and the state have been saving $1.5 billion a year, more than twice as much as it cost to finance the additional police officers in the 1990s.
So what about that hot spot policing?
In city after city, researchers found that half of crimes occur within about 5 percent of an urban area — a few buildings, intersections and blocks, often near transit stops and businesses like convenience stores, bars and nightclubs. ...
Typically, a list of hot spots was identified, and then half were randomly chosen to receive extra police attention, like more frequent patrols. Other strategies were also used, like improving street lighting, fencing vacant lots or arresting people for minor violations.
As hoped, there were fewer crimes and complaints at the hot spots chosen for extra attention than at those that were not. And once police officers started to show up often and at unpredictable intervals, they did not need to stay more than 15 minutes to have a lasting impact. ...
Rates of murder, rape, grand larceny, robbery and assault declined significantly faster in precincts with hot-spot policing than in those without it.
It sounds simple, and it's been saving taxpayers a fortune in New York.  Experts are agreeing that if the choice is between more prisons (filled with people serving lengthy mandatory minimum sentences) and more cops, pick cops:
Dr. Ludwig and Philip J. Cook, a Duke University economist, calculate that nationwide, money diverted from prison to policing would buy at least four times as much reduction in crime. They suggest shrinking the prison population by a quarter and using the savings to hire another 100,000 police officers.
Diverting that money to the police would be tricky politically, because corrections budgets are zealously defended in state capitals by prison administrators, unions and legislators.
But there is at least one prison administrator, Dr. Jacobson, the former correction commissioner in New York, who would send the money elsewhere.
“If you had a dollar to spend on reducing crime, and you looked at the science instead of the politics, you would never spend it on the prison system,” Dr. Jacobson said. “There is no better example of big government run amok.”

Monday, January 28, 2013

Sentences Shouldn't Scare People to Death

This weekend, you loyal Sentencing Nerds may not have been able to get your daily dose of U.S. Sentencing Commission data, publications, and U.S. Sentencing Guidelines manuals ... because the website was hacked by Anonymous, a cadre of computer "hacktivists" advocating for freedom of information and internet access.

Why target the U.S. Sentencing Commission?

According to this Los Angeles Times article,
A collective of hackers known as Anonymous commandeered a Department of Justice website Saturday to protest what it called the harsh treatment by government prosecutors of Internet activist Aaron Swartz, who committed suicide this month.
The hackers replaced the site's content with a video denouncing the government and praising the 26-year-old co-founder of Reddit, who hanged himself two weeks ago as his trial date for allegedly hacking into an MIT computer network neared. Swartz, who was accused of illegally downloading academic articles, faced up to 30 years in prison.

Swartz had long promoted open access of information on the Web.
Anonymous said it deliberately hacked the U.S. Sentencing Commission’s website to call attention to “the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial.”
Criticism of the U.S. Sentencing Guidelines has come in many forms over its 25 years of existence, but to our knowledge, this is the first criticism in the form of hacking.

While we don't approve of illegal conduct, we do think the hackers have a point:  our federal sentencing laws, both under the sentencing guidelines and our mandatory minimum laws, are often too harsh.  Prosecutors have unchecked power to decide who, what, and how much to charge; whether and when to offer a plea bargain; and what the deal includes, if they do. Going to trial often means risking a bone-chillingly lengthy sentence. It's no wonder that over 95 percent of defendants cave and plead, instead of asserting their constitutional rights.

Ending plea bargaining obviously isn't the answer. This article from The Economist explains why plea bargaining has become so important:  in a system now groaning under the weight of tens of thousands of drug cases each year, a significant increase in trials could cripple the system.

One potentially life-saving solution is to come up with more rational sentencing guidelines and do away with mandatory minimums. Prosecutors shouldn't have all the sentencing power, in addition to all of their other powers.

And sentences shouldn't be so long that they scare people to death.

Friday, January 25, 2013

Good and Mad Reading for the Weekend

Pardons restore rights to people who have paid their debt to society and stayed crime-free. Commutations reduce sentences for reformed people still behind bars, sending them home early.  Both can usually only be granted by a state governor or pardon board; federal offenders can get mercy from only the president.

And both commutations and pardons are on their way to extinction in many states and at the federal level.

In a new issue brief over at the American Constitution Society, former pardon attorney Margaret Love argues that there are still states doing a good job on pardons and commutations and offers suggestions for improving the federal clemency review process, which we all know now is a train wreck.  The interesting paper is definitely worth the read -- but we can't guarantee it won't give you a fever from rage.

New York, however, doesn't appear to be a state that is a great model for President Obama, as described in this New York Times article.  Here's the bad review of that state's clemency situation:
A little more than a year ago, Gov. Andrew M. Cuomo’s staff reported that it was taking a careful look at applications from people in prison for official mercy. His spokesman promised: “It is a power that the governor will use practically and methodically to help ensure everyone is treated fairly under the law.”

He hasn’t used it at all.

Mr. Cuomo has had two years and a month as governor. So far, he has not commuted the sentence of a single one of the 55,000 people in the state prison system, or granted a pardon to any of the tens of thousands of others, in prison and out.

So the quality of mercy is not strained under Mr. Cuomo. It hasn’t even broken a sweat. Gov. Rick Perry in Texas issued 14 pardons just before Christmas; Gov. Jerry Brown in California handed out 79. A Thanksgiving turkey has a better chance of getting a break from President Obama than any federal inmates: No president in modern times has granted fewer pardons than Mr. Obama. “I haven’t used it yet,” Mr. Cuomo said last week in a radio interview. “I’ve considered using it in a number of cases.”
Election season is over, the President's Second Inauguration has come and gone, and still no new commutations or pardons have come from the White House.  There is no perfect time to grant clemency, but now sure seems fine to us.

Thursday, January 24, 2013

Looking for the Next Johnny Cash

I love Johnny Cash.  The Man in Black -- the orginial MIB -- had that gravelly, instantly recognizable voice, that scraggled baritone infused with Everyman gravitas.  He gave free concerts at prisons across the country.  At Folsom Prison has a rock-solid spot on my top-ten-albums-of-all-time list.  If you haven't heard it (or heard it in awhile), give it a spin (I listen to it whenever I need encouragement on the job).  A man with his own hoard of inner demons, Cash believed the old saying, "There but for the grace of God go I."  When Cash sang in prison, there was no pity, only empathy.

And that empathy led him to act, to speak for those he left behind bars. A wonderful article from BBC News chronicles Johnny Cash's efforts to support prison reforms and fairer punishments for offenders. Call it "Mr. Cash Goes to Washington."

Fitting the gigs in around his relentless touring schedule, the "Man in Black" performed for inmates all over the US, always unpaid, and in the process, became a passionate and vocal spokesman for prisoners' rights.
"He always identified with the underdog," says Tommy Cash, Johnny's youngest brother.
"He identified with the prisoners because many of them had served their sentences and had been rehabilitated in some cases, but were still kept there the rest of their lives. He felt a great empathy with those people." ...
"In the 1960s in America, there was a growing realisation that prisons were ineffective," says Streissguth. "They were merely training inmates to be better criminals. So the recidivism rate, people coming back to incarceration, was very high."
Hmmm...sounds familiar, doesn't it?
Cash, an ardent believer in the power of rehabilitation over punishment, became the go-to voice for the media on this new hot topic.
"I think Cash had a feeling that somehow he had been endowed with this fame in order to do something with it, and one of the ways he could do something with it was talking about prison reform," says Streissguth, who also believes Cash's deeply-held religious beliefs were a factor in his championing of the cause. "He connected with the idea that a man could be redeemed." ...
Indeed, faith is one of the biggest motivators of people fighting for prison and sentencing reforms today.  My own Christian faith is the strongest motivation behind my work for FAMM.  You can hear more about that here.
Cash not only outlined to the senators on Capitol Hill what he thought was wrong with the American penal system, he also told them how he believed it could be improved.
His proposals included the separation of first-timers and hardened criminals, the reclassification of offences to keep minor offenders out of prison, a focus on rehabilitation rather than punishment, and counselling to prepare convicts for the outside world and reduce the possibility of them reoffending.
At a time when countries around the world are still wrestling with the question of how to handle those they incarcerate, many of the issues Cash raised that day feel just as relevant today.
The fact that we are still debating them 40 years later suggests Cash failed. But did he?
It would be wonderful to have an active, high-status musician -- a Katy Perry or a Jay-Z or a Rihanna or a Toby Keith -- step up and try to pick up where the Man in Black left off, champion prison and sentencing reform, and bring the issue of overincarceration into the national spotlight.

Any takers?

Molly M. Gill
Government Affairs Counsel, FAMM

Is This the Best Use of Cop Resources?

Each year, the FBI reports on the numbers of violent and property crimes and the number of drug arrests.  This Huffington Post column describes a hardly new but still disturbing pattern:  arrests for possession of pot dwarf  arrests for violent crimes.

Violent crime, as we all know, is still on the decline.  According to the FBI, in 2011, "an estimated 1,203,564 violent crimes occurred nationwide, a decrease of 3.8 percent from the 2010 estimate."  Property crime is also still dropping. There were 534,704 arrests for violent crime in 2011; over 1.6 million for property crimes.

But the number of drug arrests in 2011 eclipsed the violent crime arrests, clocking in at 663,032. Over 43 percent of those drug arrests -- over 285,100 -- were for possession of marijuana.

Interestingly, over 80 percent of all drug arrests were for possession.  Only 18.2 percent were for sale or distribution.

If these numbers leave you scratching your heads, you're not alone.  These numbers raise perplexing questions about our law enforcement priorities.  The costs of 660,000+ drug arrests are astronomical. Not all of those arrests land people in prison, but we know enough of them do that about one in five state prisoners is serving time for drugs, and over half of all federal prisoners are drug offenders.  Add mandatory minimum sentences to that equation, and it's no wonder our prisons are full to brimming over.

Is it possible we're just arresting and over-sentencing the easy pickins, the low-hanging fruit, people we're mad at instead of scared of? Is that the best use of our law enforcement resources? Is this actually making us safer?

Friday, January 18, 2013

Good & Mad Reading: Meet Aaron Swartz

By now, many of you have probably become familiar with the tragic case of Aaron Swartz, a computer prodigy who committed suicide at age 26 after facing 13 federal charges -- and a potentially lengthy prison sentence -- from federal prosecutors.  
In the fall of 2010, Swartz downloaded millions of academic journal articles from the online database JSTOR. Although Swartz had legal access to the documents through a JSTOR account, his decision to download them en masse, rather than one at a time, violated JSTOR's terms of service agreement. JSTOR, however, did not press any charges against Swartz and urged the prosecution not to seek a criminal case. After Swartz's death, the nonprofit group issued a statement criticizing the prosecution, saying that it shared many of Swartz's open-access ideals. In early January, the organization made 4.5 million journal articles available for free online. ...
Swartz's lawyers have said [U.S. Attorney Carmen] Ortiz and Assistant U.S. Attorneys Scott Garland and Stephen Heymann used the prospect of severe penalties to intimidate Swartz into pleading guilty to a lesser charge, insisting on both jail time and a felony conviction as minimum terms. When Swartz refused to accept those terms, Ortiz's office added additional felony charges in an effort to increase pressure on him to accept the prosecution's terms. ...
[California Representative Darrell] Issa questioned such tactics and the Department of Justice's strategy in the Swartz case in an interview with HuffPost on Tuesday.

"I'll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing," Issa said. "It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that's fine. But throw the book at them and find all kinds of charges and cobble them together so that they'll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used."
Representative Zoe Lofgren (D-CA) plans to introduce legislation to clarify the statutes that Swartz violated, and Rep. Issa (R-CA) has an investigator looking into whether prosecutors abused their power in charging Swartz. Prosecutors on the case have maintained that their conduct and charging decisions were appropriate.
Issa said he didn't have enough information to say whether the U.S. Attorney’s Office in Massachusetts overprosecuted Swartz. He said he had dispatched an investigator to gather more facts. ...
Issa said that at first blush, the decades-long threat of a prison sentence for Swartz seemed extreme. “It does seem like it was an awful lot -- you know, 26 years potential sentence, no chance for a plea bargain -- so it did seem like it might be" an overly aggressive prosecution, Issa said. "But again, we’re in the business of finding for sure."

Swartz in fact faced up to 35 years in prison on 13 felony charges for downloading millions of academic journal articles from the online database JSTOR.
Of course, many FAMM supporters are personally familiar with the unlimited and unreviewable charging power of prosecutors. Prosecutors have complete and unreviewable power to add, change, or drop charges, offer plea bargains, or offer (or not) shorter sentences in a plea deal. When a charge carries a mandatory minimum, the prosecutor also decides the sentence, not the judge. And with only two ways out of a mandatory minimum -- the safety valve (for drug offenders) or pleading guilty and snitching -- defendants can feel desperate and hopeless, indeed.

Swartz's case is a sad example of how prosecutors don't even need mandatory minimums to put enormous pressure on defendants.

Prosecutors serve an important role in our criminal justice system -- we need them to do their jobs and do them well. We also need to question their tactics and the use of their power, though, and find reasonable limits and checks on that power.

Wednesday, January 16, 2013

Senator Leahy: "Get Rid of these Mandatory Sentences"

Senator Patrick Leahy, the chairman of the U.S. Senate Judiciary Committee, gave a powerful speech this morning in Washington.  Here's what he said about mandatory sentencing laws:

"We also have to examine issues related to our high rate of imprisonment … and mandatory minimum sentences, to make sure that we have approaches that effectively reduce crime and target violent offenders. I say this as a former prosecutor and I say this as a chairman of the Senate Judiciary Committee, I think our reliance on mandatory minimums at the state and federal level has been a great mistake. I’m not convinced it has lowered crime, but I [know] that we have imprisoned people who should not be there, and we have wasted money that is better spent on other things. I think at the federal level and at the state level, get rid of these mandatory minimum sentences. Let judges act as judges and make up their own mind [about] what should be done. The idea that we protect society by one-size-fits-all, or the idea that we can do this kind of symbolism to make us safer – it just does not work in the real world."
Watch the whole speech (and interesting q-and-a after) on CSPAN. The comments on mandatory sentences occur about 10 minutes in.

We are big fans of Senator Leahy's comments and his firm stance against mandatory sentences.  We are looking forward to working with him in this Congress and trying to do as he says, and get rid of these expensive, ineffective laws.

Monday, January 14, 2013

Obama's Unpardonable Neglect of Clemency

That's the title of this heartfelt column from former Maryland governor Robert Ehrlich in The Baltimore Sun.

The last week of 2012 saw the Office of the Inspector General torch the president's pardon attorney regarding the inappropriate withholding of information that could have led to the release of Clarence Aaron, an African-American college student who was given a life sentence for a first time, nonviolent drug offense in 1993.

The dysfunction described in the Aaron case is not new, nor should it be surprising. After all, the office is located within the same agency (Department of Justice) that prosecutes cases in the first place. Further, critical views of the pardon office's bureaucracy have been around for years.

In his book "Decision Points," former President George W. Bush recounts his frustration with the pardon process in the context of the Scooter Libby (Vice President Dick Cheney's chief of staff) obstruction of justice case. The president's advice to incoming President Barack Obama on Inauguration Day, 2009: "Announce a pardon policy early on, and stick to it." Alas, the Obama administration has shown no such interest in fixing a broken system.

Although slow to the dance, President Bush was correct in bemoaning his lost opportunity. 1980s-era sentencing laws have led to historic incarceration rates in the U.S. The ugly facts speak for themselves:

• In 1980, the U.S. incarceration rate was 150 per 100,000 citizens; today, it's 753;

• this rate of incarceration compares to 153 in Great Britain, 96 in France, and 90 in Germany;

• the U.S. now imprisons a higher percentage of its population than any other country in the world.

Hopefully, a second term Obama administration will do the right thing. Our federal system houses many thousands of nonviolent drug-related offenders. Each inmate costs the taxpayers in excess of $28,000 per year. I believe the vast majority are no threat to reoffend. Their cases should be reviewed within the context of a newly invigorated federal review process.

Only one man can effectuate this change. Mr. President, it's time to act.
Hear, hear!

Friday, January 11, 2013

California, we (still) have a problem

How much in denial is the state of California about its prison overcrowding crisis?  So much so that Governor Jerry Brown announced that it was over, and that federal court oversight should end.

But the crisis isn't over, and the real solution is one California doesn't seem to want:  fixing its draconian sentencing laws.

While this Los Angeles Times editorial frets about the state's desire to be free of federal supervision of its prison system, this column from The Guardian gets right to the painful truth:

Some progress has been made since the initial state of emergency was declared. The state prisons are now operating at the reduced rate of 150% capacity – which, apparently, is something to cheer about. Much of this reduction in numbers is due to realignment (pdf), however, meaning that many low-level and low-risk offenders have been shifted out of the state prison system and into the county jails instead.
While it's certainly cheaper for the state to have the counties pick up the tab for their excess prisoners, this strategy fails to address the systemic problems that caused the overcrowding in the first place. It should also be noted that many prisons, including the Valley State Prison for Women, are still operating at 180% capacity.
Ultimately, the state needs to drastically overhaul its sentencing laws, which continue to allow offenders to be sentenced to outrageously long prison terms that have little bearing on the offense committed. The only real sentencing reform that has taken place since the federal mandate was issued was the recent tweaking of the "three strikes" law. Only offenders who commit a serious or violent felony can be sent to prison for life under the revised law. This is a step in the right direction, but it's only a baby step. I've written previously about a 25-year-old man with a drug addiction who was sentenced under three strikes to 70 years for burglary. His sentence was recently upheld on appeal and he will not be eligible for any reduction under the three strikes modification because burglary counts as a serious felony.
In the meantime, there is plenty of scope to reduce current prison populations – so long as politicians' egos do not get in the way. Prison reform advocates have long been arguing for low-level offenders to be placed under community supervision or released early with GPS monitoring, if necessary. Using its own risk assessment tool (pdf), the California Department of Corrections and Rehabilitation (CDCR) has identified 43% of the prison population as low risk. In order to meet the June 2013 deadline to reduce the prison population to the federally mandated level of 137.5% capacity, the CDCR has proposed granting early releases to these low-risk prisoners.
Perhaps California lawmakers would be encouraged by the examples of other states like New York, Rhode Island, South Carolina, and Michigan, who have reformed their sentencing laws without seeing a public safety disaster result.  It can be done.  The only question is whether California wants to do it.

Another Call for More Clemency

Over at The Nation, penology writer and expert Sasha Abramsky asks why President Obama has not granted more commutations (sentence reductions) and pardons (restoration of rights) to federal prisoners and ex-prisoners.

Abramsky raises some important and disturbing points:  President Obama's pardoning record doesn't match up with his rhetoric about crime, the lack of clemency may not be entirely his fault, and ultimately, what we need is permanent legislative changes to our unjust sentencing laws.
A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says [Salt Lake City mayor and civil rights lawyer Rocky] Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation. There’s not a lot of moral or political fortitude in play.”
On January 5, The New York Times ran an editorial calling on the president to exercise his pardon power—while also pointing out that the Justice Department, too, “has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.” The Times also blamed Ronald Rodgers, the lawyer who runs the Office of the Pardon Attorney and has obstructed the process, and argued that his office should be replaced with “a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.”
In the long run, when it comes to preventing future unjust sentences like the one given [Weldon] Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war. And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions. And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.) But when there’s a massive miscarriage of justice—as has happened all too often during the forty years of the “war on drugs”—the president’s ability to pardon or commute sentences is vital.

Our Board Really Cares

Some may not be aware that FAMM has a board of directors.  And all of our board members really, deeply, personally care about sentencing reform.  

One of them, Jason Flom, is the head of Lava Records, and we can thank him every time we hear Katy Perry, Black Veil Brides, or Jessie J on the radio.  But for decades, we've also been thanking Mr. Flom for being a passionate FAMM supporter. This Huffington Post column by Jason explains his interest in and commitment to sentencing reform:
The failure of the Drug War is both clear and tragic. The United States is home to just five percent of the world's population but fully 25 percent of the world's prison population. As former U.S. Senator Jim Webb told me a couple of years ago, "What these numbers would seem to indicate is that either we have the most evil people in the world or else we are doing something very wrong." Clearly we are doing something wrong. We lock up our citizens at five times the rate of the rest of the world even though our crime rates are similar. This mass incarceration epidemic has torn apart countless families, and its impact has been disproportionately severe on minorities, a reality that should offend anyone who cares about civil rights.
I decided a couple of decades ago that I had to get involved. I began working with some of our nation's leading criminal justice reform groups to end the drug war. During this time, I also supported dozens of successful federal and state clemency applications, including that of celebrated musician and composer John Forte. After 20 years of slow progress, I believe we have arrived at a watershed moment.
The moment began last November when the residents of both Colorado and Washington State voted to legalize recreational use of marijuana among adults. For years, drug war proponents dismissed those of us fighting for sensible drug laws as a vocal and permanent minority. No longer. Majorities in both states proved that the American people are tired of failed drug war policies and ready to try a new approach.
We must seize this moment. I'm writing in the hope that you will join me and other industry figures such as Richard Branson, Russell Simmons, Sting, John Legend and Willie Nelson in supporting this cause. We recognize that many of our industry's greatest stars and executives have been involved with drugs, especially in their youth, and could have been sent to prison for 15 years (or longer) like Tony Papa. What would our business look like today had we been deprived of these creative geniuses?
We know that the War on Drugs has failed. Drugs are cheaper and more readily available than they were when this misguided war started some 30 years ago. Even staunch law enforcement allies, such as former federal prosecutor and current Republican governor of New Jersey, Chris Christie, have declared the War on Drugs a failure and proposed more cost-effective and humane ways to reduce drug abuse and crime.
One way to make the drug war more humane overnight is to give judges freedom to disregard mandatory minimum drug crime sentences when they don't fit the offense or the offender.

We're so grateful for Jason's support and his tireless efforts to raise awareness of the need for reform.

How can you, as Mr. Flom urges, get involved?  Start by getting educated.  Read our helpful resources on mandatory minimum sentencing laws.  Learn how to contact your members of Congress and tell them to change these unproductive sentencing policies.  Donate to FAMM's work.  Tell a friend about the problem and how we are trying to fix it.  And sign up for our emails, so that you can hear it first when legislative reforms are on the move in the 113th Congress.

Wednesday, January 9, 2013

Countdown to ... Clemency?

Here in Washington, the countdown to Inauguration Day -- January 21 -- is in earnest.  That day is the official end of President Barack Obama's first presidential term, prompting Jacob Sullum over at Reason to ask whether he'll become the least merciful president in American history.
December, a traditional season for presidential clemency, has come and gone, and still Obama has granted just one commutation (which shortens a prisoner’s sentence) and 22 pardons (which clear people’s records, typically after they've completed their sentences). Barring a last-minute flurry of clemency actions, his first-term record looks weaker than those of all but a few previous presidents.

Which of Obama’s predecessors managed to make less use of the clemency power during their first terms? According to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockville, Illinois, just three: George Washington, who probably did not have many clemency petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.

With the exception of Washington's first term, then, Obama so far has been stingier with pardons and commutations than any other president, especially when you take into account the growth of the federal penal system during the last century, the elimination of parole, the proliferation of mandatory minimums, and the concomitant increase in petitions. This is a remarkable development for a man who proclaims that "life is all about second chances" and who has repeatedly described our criminal justice system as excessively harsh.
We'd be delighted to see some clemency granted between now and January 21.  We'd be even more delighted if clemency became as frequent and regular a part of our criminal justice system as it was before the 1980s, when presidents granted commutations and pardons not just at holidays and on their way out the White House door, but throughout the year, to hundreds of worthy applicants.

There's no time like the present to turn over a new leaf.

Jailers Should Not be the Judge, Too

That's the title of this USAToday column by FAMM Vice President and General Counsel Mary Price, co-authored with Jamie Fellner of Human Rights Watch.  It takes the federal Bureau of Prisons to task for its failure to use its "compassionate release" power:
Congress recognized that situations arise that make continued incarceration senseless and inhumane. Old age could so whittle a prisoner's body that he cannot dress, eat or bathe by himself. The accidental death of a prisoner's husband might condemn young children to foster care.
Unfortunately, the bureau is reluctant to make motions for "compassionate release." We do not know how many prisoners seek compassionate release each year because the bureau does not keep count. But in 2011, for example, when there were about 218,000 federal prisoners, the bureau said yes only 30 times. Since 1992, it has made motions about two dozen times a year.
Why so few? In part, it's because the bureau will not make a motion unless the prisoner has fewer than 12 months to live or is utterly and irrevocably incapacitated. Yet even then, it may say no. ...

The bureau denies compassionate release for many prisoners because, in theory, they are still capable of re-offending regardless of whether it is likely. It also considers whether a prisoner has, in the judgment of wardens and more senior officials, been punished enough, whether release might depreciate the seriousness of the crime or whether the crime was just too heinous.
But Congress left those judgments to courts.
One of the beauties of our democracy is its division of labor.  Courts, the executive branch (which includes our federal prisons), and Congress not only ease the burden of governing by sharing the work, but also keep each other in line by serving as a check on each other's power.  The prisons are in the best position to say whether a prisoner is sick, dying, or otherwise in need of an early compassionate release; courts heard all the facts and evidence of the case and know better "the seriousness of the crime or whether the crime was just too heinous."

To each branch its own power.

Pot Dispensary Operator Gets 10 Years

California marijuana dispensary owner Aaron Sandusky received a mandatory minimum sentence of 10 years this week, despite promises from the Obama Administration that it would not prosecute marijuana dispensary owners in states, like California, where such conduct is legal under state (but not federal) law.
Aaron Sandusky, one of only a handful of defendants to fight U.S. prosecutors, was convicted in October on federal charges of distributing marijuana.
Sandusky faced as much as life in prison, but U.S. District Court Judge Percy Anderson gave him the minimum sentence possible under federal guidelines.
"In this case, as the defendant was warned, the court's hands are tied," Anderson said. "Whether you agree with the defendant's position or not." ...

Only three similar cases have been tried in recent years - Charles C. Lynch of Arroyo Grande, a former Morro Bay medical marijuana dispensary owner, Michigan father and son Gerald and Jeremy Duval, and Christopher Williams of Montana.
Lynch, a former Morro Bay medical marijuana dispensary owner, faced up to 20 years for selling more than $2.1 million in marijuana during a year's time. He was sentenced to a reduced term of a year and a day in prison in June 2009.
The Duvals were convicted of growing marijuana in greenhouses, and while they claimed it was for medicinal purposes, the judge at sentencing found their operation suggested otherwise.
In Montana, where medical marijuana is also legal, federal prosecutors successfully charged Christopher Williams, who was convicted in September of eight counts of conspiring to grow and distribute marijuana, possession with intent to distribute and possession of a firearm during a drug-trafficking offense.
Williams has settled with prosecutors in his criminal proceedings. Six of the charges will be dismissed in exchange for withdrawing his pending motions for acquittal and a new trial. He will face five years to life in prison.
The mandatory minimums for marijuana in these cases are an injustice for the same reason that all mandatory sentences are unjust:  they don't let judges do their jobs.  The judges in these cases can't consider all the relevant facts and circumstances -- including the conflict between state and federal law about what is and isn't illegal. The facts and legal issues in these cases are complex, making mandatory sentences a particularly inappropriate outcome.

Monday, January 7, 2013

"The Campbell Standard"

As was pointed out in an earlier blog post, the New York Times Magazine ran a powerful and moving piece on "restorative justice" surrounding a case here in Florida. The crime at issue in the case was murder, of course, and while the circumstances surrounding the crime were perhaps not as gruesome or aggravating as could be imagined, they were appalling and heartbreaking nonetheless. 

In between gathering my composure in the face of the raw emotion that jumps off the page, and trying to avoid thinking about what I might do if I found myself in the almost unfathomable situation in which these parents found themselves, I found one part of the story particularly interesting. 

The author notes that the prosecutor in this case, Leon County Assistant State Attorney Jack Campbell, charged the defendant with first-degree murder. Here in Florida, that charge carries a mandatory life sentence (it also potentially carries the death penalty).

However, as the piece notes:

As he always does with victims’ families, [Campbell] explained to the [victim's family] the details of the criminal-justice process, including the little-advertised fact that the state attorney has broad discretion to depart from the state’s mandatory sentences. As the representative of the state and the person tasked with finding justice for [the victim] , he could reduce charges and seek alternative sentences. Technically, he told the Grosmaires, “if I wanted to do five years for manslaughter, I can do that.”
In this case, the victim's family worked with the offender, the offender's family, clergy and the prosecutor to determine a sentence that was best for everyone, and they decided on 20 years in prison followed by ten years of probation. That, of course, is different from the life sentence mandated for murder by Florida Statutes. In explaining the process behind determining the appropriate sentence in this case, Assistant State Attorney Campbell said: 

“I think the ultimate decision on punishment should be made based on cool reflection of the facts and the evidence in the case."

We agree. And if that principle  - we can call it "The Campbell Standard" - is applicable in a first-degree murder case, surely it's applicable in other areas as well. 

Let's apply the Campbell Standard across the board.

~Greg Newburn
FAMM Florida Project Director

A Brief Case for Gun Sentencing Reform in Florida

A recent case out of South Florida highlights the need for immediate gun sentencing reform here in the Sunshine State. On July 12, 2011, a 48-year-old Indian River County resident, Arzie Tory, was assaulted on his way to work. Tory said he was "experiencing weakness from diabetes" when he "took a punch to the eye and fled to his car, where he pulled out a semi-automatic handgun and warned the other man to stay away."


As we have seen all too often in Florida, for exercising his Second Amendment rights in defense of himself, Tory, "who was bleeding from near his eye, was charged by the Indian River County Sheriff's Office with aggravated assault with a deadly weapon."

Thanks to Florida's so-called "Stand Your Ground" law (which eliminates the "duty to retreat" for law-abiding citizens who face violent attacks), Mr. Tory's attorney was able to file a motion for immunity from prosecution. Representative Dennis Baxley (R, Ocala), who authored the "Stand Your Ground" law (and is now serving as Chair of the Florida House Judiciary Committee), explains the reasoning behind that law:
… a victim of a violent attack has seconds to decide if they want to live or they want to die or they want to be a victim of violence, such as rape or a beating. (Emphasis added.) And I think in those circumstances, we need to give that law-abiding citizen the benefit of the doubt and stand beside them and say if you can stop a violent act from occurring that's going to victimize you and your family, that we're going to stand with you.
Fortunately for Mr. Tory, last month Circuit Court Judge Robert Pegg felt the facts of Tory's case fit "Stand Your Ground." Tory's motion was granted and the case dismissed. Nevertheless, "Assistant State Attorney Michelle McCarter said she disagreed with Pegg's decision ... She argued Tory's actions should have been considered unlawful force."

Tory's case highlights the need for sentencing reform in Florida. The facts of the case are straightforward. A man was attacked and he pulled a firearm to fend off his attacker. The State Attorney considers that "unlawful force," while a judge thinks that act is justified under the law. In this case, two reasonable people came to completely opposite conclusions about the legality of a straightforward set of facts.

That phenomenon is not unique. When it comes to these kinds of cases, Palm Beach County Circuit Judge Krista Marx explains that:
A particular case might be presented to the State Attorney’s office in Miami-Dade, and the same exact case could be presented in Pensacola. And the State Attorney isn’t necessarily going to concur on exactly what the appropriate charges are. So there’s a lot of conversation about hoping that we’ll have uniformity under the [Stand Your Ground] law. But we never will. 
Mark Wilson, Chief Assistant State Attorney for Florida's 16th Judicial Circuit echoes Judge Marx:
There’s going to be a small number of cases where we don’t think there’s a real self-defense claim, a genuine, bona fide self-defense claim, and we’re going to file on it. Most of the time the courts will agree with us. But there will be a few cases where the courts don’t. There is reasonable disagreement. This is a human endeavor. None of us are perfect. And reasonable persons, men and women will disagree, of course, about these matters.
Representatives from the Florida Prosecuting Attorneys Association have argued publicly that prosecutors simply never file charges in cases where they think a valid self-defense claim exists. However, of the roughly 200 “Stand Your Ground” cases looked at by the Tampa Bay Times, 23% were granted immunity by judges and 10% were acquitted by a jury. Taking both the prosecutors’ claims and that data at face value means, of course, that in a full 1/3 of those cases, prosecutors did not believe a self-defense claim was legitimate, but a judge or jury did. That large disconnect is yet more evidence that “reasonable persons will disagree” about self-defense.

Further evidence that “reasonable persons will disagree” about whether a given act is self-defense can be found in Mr. Wilson’s experience. Mr. Wilson testified that of all the motions for immunity that have been filed in his Circuit, he did not believe even a single one had “arguable merit.” However, of the two motions that proceeded to an immunity hearing, one was granted. Again, two reasonable people, two completely opposite conclusions.

The Tory case and others like it, coupled with the comments from Judge Marx and Mr. Wilson (especially in light of the data from the Tampa Bay Times), lead to one inescapable conclusion: what some people reasonably believe is self-defense, other reasonable people will believe is not.

Taken by itself, ambiguity about whether a given act will be protected as self-defense is not particularly problematic. After all, the role of judges and juries is to make decisions about such factual matters. However, Florida’s mandatory minimum sentencing scheme – particularly Florida’s “10-20-Life” statute, complicates the issue considerably.

It is particularly problematic.

Section 775.087, F.S., or Florida’s “10-20-Life” sentencing law (“10-20-Life”), provides, in relevant part:
Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for … aggravated assault … and during the commission of the offense, such person actually possessed a "firearm" … shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault … shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a "firearm" or "destructive device" during the commission of the offense. ...
Any person who is convicted of a felony or an attempt to commit [aggravated assault], and during the course of the commission of the felony such person discharged a "firearm" … shall be sentenced to a minimum term of imprisonment of 20 years. …
In other words, Florida law provides for a mandatory minimum sentence of three years for anyone convicted of aggravated assault who also possessed a firearm at the time of the offense, and a 20-year mandatory minimum sentence for anyone convicted of aggravated assault who also discharged a firearm during the offense.

We've already seen that reasonable people will disagree about whether an act was performed in self-defense or with criminal intent. This disagreement matters because when it comes to self-defense with a firearm, a reasonable person could believe he or she is acting in self-defense, while other reasonable people may disagree. If the other reasonable person is a State Attorney, then the person who believed he or she was acting in self-defense will face prosecution. The problematic combination of an ambiguous self-defense statute and a mandatory minimum prison sentence results - inevitably results - in otherwise law-abiding citizens facing prosecution for behavior they believed was protected under the law.

It is almost certainly the case that whether a jury accepts a self-defense claim or not is in part a matter of chance. As Judge Marx explains:
I have tried cases with two juries at the same exact time, receiving almost identical evidence, and they don’t return the same verdict all the time. Reasonable minds will vary. … And we certainly can’t have this goal of total uniformity. It will never happen.
Assume there are five cases in five jurisdictions where a defendant fires a warning shot to protect herself or a third party from violence. Even though the cases share virtually all of the same relevant facts, one defendant might not be charged at all, another might be granted immunity, a third might be acquitted at trial, a fourth might accept a plea bargain and a fifth convicted at trial. The first three would serve no prison time, the fourth would serve a reduced sentence, and the fifth would serve twenty years in prison.

That can't be right.

Mr. Tory was fortunate to have a judge who agreed with his claim that he should be immune from prosecution. However, a different judge might have ruled differently. If Mr. Tory, secure in his belief that he acted in self-defense and is not a criminal, opted for trial instead, and the State Attorney was able to convince six people that Mr. Tory's actions technically met the elements of the offense, he would have spent Christmas in a state prison instead of home with his family. And for the next three years Florida taxpayers would be paying to incarcerate him for the "crime" of protecting himself from violent attack.

Upon hearing the facts of another warning shot case, former state Senator Victor Crist, who crafted 10-20-Life while serving in the Florida House of Representatives, said lawmakers did not have “warning shot” cases in mind when they passed the bill. Instead, Crist said, “We were thinking about the punk robbing a liquor store who has a gun and pulls it out and either threatens to shoot or shoots someone while committing a crime.”

Irrespective of the intent of the law, the combination of an ambiguous statute and the mandatory minimum sentences in 10-20-Life undermines the self-defense rights of law-abiding Floridians. Worse, that combination leaves law-abiding citizens at a disadvantage when actually confronted by criminals. As Chairman Baxley said, “… a victim of a violent attack has seconds to decide if they want to live or they want to die or they want to be a victim of violence, such as rape or a beating.” Yet, the status quo forces Florida’s gun owners to weigh the prospect of a three (or 20!) year mandatory minimum prison sentence against defending oneself or one’s family, all in the “seconds” they have in the face of a perceived threat. That calculus leaves law-abiding Floridians vulnerable to attack, an indefensible outcome that is unambiguously the most perverse unintended consequence of 10-20-Life.

There is a way out of this mess.

The Florida legislature can and should pass a reform that would require judges to depart from an otherwise applicable mandatory minimum sentence in any case in which a defendant makes a prima facie case of self-defense. Such a reform - narrowly tailored to preserve the intent of 10-20-Life - would send the signal that Florida takes seriously its obligations to protect citizens from violence, and that it takes seriously its obligation to fully protect Second Amendment rights and the fundamental right of self-defense for all Floridians.

~ Greg Newburn
FAMM Florida Project Director

Fix Federal Pardoning Process Now, President Obama

In case you missed it, this weekend's New York Times featured a superb editorial calling on President Obama to reform the way requests for commutations and pardons are handled.  It's reprinted in full below, and FAMM couldn't agree with it more.  Federal prisoners and ex-prisoners deserve a fair, unbiased review of their requests for sentence reductions and restoration of rights.  The current system clearly isn't working.  President Obama should fix it this year.

Editorial: The Quality of Mercy, Strained
Published: January 5, 2013
The New York Times

Barack Obama has rarely exercised presidential clemency to grant pardons and restore the civil rights of convicted criminals, a power that Abraham Lincoln, Franklin D. Roosevelt and other presidents used with dedication to correct injustices in the legal system.

Mr. Obama has pardoned only 22 people, fewer than any president since the modern era of pardons began in 1900. He has granted a pardon for 1 out of every 50 applicants, compared with 1 out of 33 for George W. Bush, 1 of 8 for Bill Clinton and 1 of 3 for Ronald Reagan.

In part, this has been a reaction to Presidents Clinton and Bush, both of whom compromised the pardon power with cronyism. But the basic problem may be that Mr. Obama allowed himself to be crippled by the pardon process itself. That process is managed by the Justice Department, which receives applications for clemency and makes recommendations to the White House.

Presumably, the president is willing to use acts of clemency to right the wrongs of the sentencing and judicial systems. Yet the same cannot be said of the Justice Department, which has a prosecutorial mind-set. It has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.

Over the years, too, the process appears to have been tainted by racial bias. As ProPublica documented in an analysis of Bush administration pardons, whites benefited from pardons four times as often as members of minority groups, even though blacks alone made up 38 percent of the federal prison population. That report prompted a continuing Justice Department review by its Bureau of Justice Statistics.

In addition, the department’s pardon office is run by a Bush-appointed lawyer, Ronald L. Rodgers, whose professional conduct has been excoriated by the Justice Department’s own inspector general and referred to the deputy attorney general for possible administrative action. In 2008, in transmitting a proposed pardon to the White House, Mr. Rodgers misrepresented the views of both the United States attorney who made the recommendation and the judge who seconded it. The prisoner was denied a pardon.

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy — say, a federal judge — to steward his administration’s pardon duties. At the same time, he can end the department’s conflict of interest by replacing the pardons office with a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.

There is much good to be done, for the sake of justice as well as mercy. Many federal inmates are serving egregiously long prison terms under mandatory minimum sentencing schemes. Mr. Obama could use the pardon power to grant clemency to some long-term prisoners, until Congress reforms those laws. He could also use that power to spare some federal offenders who have completed their prison terms from the legal restrictions that have kept them from getting jobs, places to live, business licenses and the chance to vote.

And he could address the unfortunate consequences of the nation’s unfair drug sentencing laws. As of November 2011, there were at least 5,000 federal prisoners serving sentences for crack cocaine who deserved consideration for reduced sentences after a major reform of federal drug laws in 2010. Those prisoners were sentenced when the penalty for crimes involving crack was far more severe than for crimes involving powder cocaine; in 2010, Congress reduced that difference, but the older sentences remained unchanged.

In 2003, Justice Anthony Kennedy observed that the pardon power had been “drained of its moral force.” The Constitution grants the president alone the power to grant “pardons for offenses against the United States.” It is time for Mr. Obama to vigorously exercise this august and singular responsibility.
        

Can Forgiveness Play a Role in Criminal Justice?

This lengthy but worthwhile article in The New York Times Magazine examines that question and the practice of restorative justice.  
Most modern justice systems focus on a crime, a lawbreaker and a punishment. But a concept called “restorative justice” considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends. And it allows victims, who often feel shut out of the prosecutorial process, a way to be heard and participate. In this country, restorative justice takes a number of forms, but perhaps the most prominent is restorative-justice diversion. There are not many of these programs — a few exist on the margins of the justice system in communities like Baltimore, Minneapolis and Oakland, Calif. — but, according to a University of Pennsylvania study in 2007, they have been effective at reducing recidivism. Typically, a facilitator meets separately with the accused and the victim, and if both are willing to meet face to face without animosity and the offender is deemed willing and able to complete restitution, then the case shifts out of the adversarial legal system and into a parallel restorative-justice process. All parties — the offender, victim, facilitator and law enforcement — come together in a forum sometimes called a restorative-community conference. Each person speaks, one at a time and without interruption, about the crime and its effects, and the participants come to a consensus about how to repair the harm done.
The methods are mostly applied in less serious crimes, like property offenses in which the wrong can be clearly righted — stolen property returned, vandalized material replaced. The processes are designed to be flexible enough to handle violent crime like assault, but they are rarely used in those situations. And no one I spoke to had ever heard of restorative justice applied for anything as serious as murder.
The article tells the story of a murder case in which the victim's parents forgive the man who killed their daughter.  It's a moving and thought-provoking example of how our justice system can sometimes think outside the box -- even in the worst of the worst cases.

Of particular interest, pay attention to the section that discusses the community-based plea bargaining, at which the victims, offender, prosecutor, and unbiased mediators offer their thoughts on an appropriate sentence.  Compare that to a system in which prosecutors make a unilateral, unreviewable plea offer, behind closed doors and (often) with little or no input from victim, offender, and community.  Which system is fairer and more accountable to the community?  Which system is more likely to produce a sentence that all parties can not just live with, but also respect?

Leave your thoughts in a comment.

Friday, January 4, 2013

Less Lead = Less Crime?

Lead (Pb, by its chemical moniker) is one of the most poisonous substances out there, and being exposed to less of it, argues this intriguing Mother Jones article, may be the reason we've seen less -- and less, and less -- crime in the last 30 years.

The article highlights just how peculiarly difficult it is to pinpoint the cause of crime drops:
When I started research for this story, I worked my way through a pair of thick criminology tomes. One chapter regaled me with the "exciting possibility" that it's mostly a matter of economics: Crime goes down when the economy is booming and goes up when it's in a slump. Unfortunately, the theory doesn't seem to hold water—for example, crime rates have continued to drop recently despite our prolonged downturn.
Another chapter suggested that crime drops in big cities were mostly a reflection of the crack epidemic of the '80s finally burning itself out. A trio of authors identified three major "drug eras" in New York City, the first dominated by heroin, which produced limited violence, and the second by crack, which generated spectacular levels of it. In the early '90s, these researchers proposed, the children of CrackGen switched to marijuana, choosing a less violent and more law-abiding lifestyle. As they did, crime rates in New York and other cities went down.
Another chapter told a story of demographics: As the number of young men increases, so does crime. Unfortunately for this theory, the number of young men increased during the '90s, but crime dropped anyway.
There were chapters in my tomes on the effect of prison expansion. On guns and gun control. On family. On race. On parole and probation. On the raw number of police officers. It seemed as if everyone had a pet theory. In 1999, economist Steven Levitt, later famous as the coauthor of Freakonomics, teamed up with John Donohue to suggest that crime dropped because of Roe v. Wade; legalized abortion, they argued, led to fewer unwanted babies, which meant fewer maladjusted and violent young men two decades later.
But there's a problem common to all of these theories: It's hard to tease out actual proof. Maybe the end of the crack epidemic contributed to a decline in inner-city crime, but then again, maybe it was really the effect of increased incarceration, more cops on the beat, broken-windows policing, and a rise in abortion rates 20 years earlier. After all, they all happened at the same time.
Mother Jones offers a new theory:  we commit crimes at high rates when we're exposed to a lot of lead.
Lead emissions from tailpipes rose steadily from the early '40s through the early '70s, nearly quadrupling over that period. Then, as unleaded gasoline began to replace leaded gasoline, emissions plummeted.
Intriguingly, violent crime rates followed the same upside-down U pattern. The only thing different was the time period: Crime rates rose dramatically in the '60s through the '80s, and then began dropping steadily starting in the early '90s. The two curves looked eerily identical, but were offset by about 20 years.
So [US Department of Housing and Urban Development consultant Rick] Nevin dove in further, digging up detailed data on lead emissions and crime rates to see if the similarity of the curves was as good as it seemed. It turned out to be even better: In a 2000 paper (PDF) he concluded that if you add a lag time of 23 years, lead emissions from automobiles explain 90 percent of the variation in violent crime in America. Toddlers who ingested high levels of lead in the '40s and '50s really were more likely to become violent criminals in the '60s, '70s, and '80s.
And with that we have our molecule: tetraethyl lead, the gasoline additive invented by General Motors in the 1920s to prevent knocking and pinging in high-performance engines. As auto sales boomed after World War II, and drivers in powerful new cars increasingly asked service station attendants to "fill 'er up with ethyl," they were unwittingly creating a crime wave two decades later.
Many have said our country's dependence on oil would kill us -- but they couldn't imagine how literal that might become.

Lead or otherwise, it's probably impossible to pinpoint one easily-targeted cause of crime rate fluctuations.  Many say mandatory sentences -- and longer prison sentences -- are the key to a low-crime world.  It's never been that easy or clear-cut, and even experts say that incarceration only accounts for about a quarter of our nation's decrease in crime.  That quarter comes at a high price, too -- billions spent annually on prisons are crunching budgets nation-wide, taking away taxpayer dollars from addressing all kinds of other important problems.

Like reducing lead exposure, perhaps.

Wednesday, January 2, 2013

"Plead guilty or go to prison for life"

Over at Reason, Jacob Sullum discusses the case of Chris Williams, a medical marijuana grower in Montana. Williams was convicted of violating federal law, despite the fact that his "business openly supplied marijuana to patients who were allowed to use it under state law."

Sullum notes that Mr. Williams accepted a deal to drop the appeal of his conviction in exchange for a five-year prison sentence, which is considerably less time than the sentence Williams faced originally, which would have kept him in federal prison for 80 years. Sullum credits the difference between the two sentences  to "an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it."

Williams' case is a variant on the so-called "trial penalty," in which, facing obscenely harsh sentences, criminal defendants sacrifice constitutional rights to due process in exchange for leniency from prosecutors. The trial penalty is one of the nastier side effects of mandatory sentencing, and often leads to obviously unjust prison sentences. But the fact that mandatory sentences eviscerate what should be a venerated constitutional right is apparently of no concern to federal (or state) prosecutors, who too often charge anything that can be charged, rather than what justice, reason or sanity might justify.

Sullum puts the issue plain: 

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?
Why, indeed?