SentenceSpeak

Close Prisons, Save Money

2012-01-27T12:41:00.001-05:00

FAMM's Florida project director Greg Newburn has a thought-provoking piece in the Orlando Sentinel today, arguing that prison closures are good news, not bad, for states -- even if those closures mean some lost prison jobs.

We see the jobs created when government builds a prison, but we don't see the jobs that would have been created if the money had been left with taxpayers. While legislators rightly care about the workers negatively impacted by prison closures, what of the people who can't find jobs because money that would have been used to hire them was taken in taxes? Who speaks for the unseen? ...

Prisons are not "employment and economic opportunities." Ideally, they are built to house offenders who have proved unable to cooperate peacefully in civil society. In Thomas Paine's words, they are "necessary evils." Prisons play a vital role in public safety, but they should never be used as jobs programs or payoffs to union bosses.

Government should not spend money on any project not necessary for the public well-being. Instead, it should leave as much money as possible with taxpayers, who can and will use it on projects they find worthwhile. Doing so will create real jobs of real value across the state.

It is easy to point to the prosperity of certain areas buoyed by state spending projects, but we should always remember that "to spend is to tax" because someone always has to pay the bill — and that someone is us.

NJ Governor Christie: "No Life is Disposable"

2012-01-26T15:25:00.003-05:00

Massachusetts isn't the only state with a governor calling for big-time sentencing reforms. New Jersey Governor Chris Christie, a former prosecutor and a Republican, included a moving plea for mandatory treatment for nonviolent drug offenders in his recent State of the State address. FAMM President Julie Stewart applauds his courage and compassion in this Huffington Post editorial.

Here are the governor's thoughts:

"...let us reclaim the lives of those drug offenders who have not committed a violent crime. By investing time and money in drug treatment -- in an in-house, secure facility -- rather than putting them in prison.

Experience has shown that treating non-violent drug offenders is two-thirds less expensive than housing them in prison. And more importantly -- as long as they have not violently victimized society -- everyone deserves a second chance, because no life is disposable.

I am not satisfied to have this as merely a pilot project; I am calling for a transformation of the way we deal with drug abuse and incarceration in every corner of New Jersey.

So today I ask this Legislature and the Chief Justice to join me in this commitment that no life is disposable.

I propose mandatory treatment for every non-violent offender with a drug abuse problem in New Jersey, not just a select few. It will send a clear message to those who have fallen victim to the disease of drug abuse -- we want to help you, not throw you away. We will require you to get treatment. Your life has value. Every one of God's creations can be redeemed."

It's rare to hear this kind of affirmation -- but so important that more leaders start saying it out loud. Here at FAMM, we hear it every day from family members and prisoners alike. As Julie writes:

The reason our sentencing policies, especially with regard to nonviolent, drug offenses, remain so punitive is that we have learned to dehumanize people who break the law. They have become The Other, the ones who asked for it and now are going to get it. This lack of empathy is bewildering in light of the fact that almost all of us know someone good who did something bad.

Governor Christie's words -- and plan for nonviolent drug offenders -- call all of us to the better angels of our nature. To the addict and abuser, Christie says, "Your life has value... We want to help you, not throw you away." This is the exact opposite message that prisoners and their families receive from today's judicial system and bureaucratic prison-industrial complex.

How do you think we can change more hearts and minds and remind people that prisoners are, well, people?

Mass. Governor Wants Mandatory Minimum Reform!

2012-01-25T10:19:00.000-05:00

Last night, Massachusetts Governor Deval Patrick delivered his annual State of the Commonwealth address. He listed sentencing reform as one of his top three priorities for the year. He made it clear that he will not sign any new habitual offender bill unless the state's Legislature also sends him a mandatory minimum bill. “Both are important and you must send me both.” Read his full speech here, and FAMM's thoughts on it here.

The Governor went on to say:

“At the other end of the spectrum are non-violent drug offenders. And in these cases, we have to deal with the fact that simply warehousing non-violent offenders is a costly policy failure. . . We have moved, at massive public expense, from treatment for drug offenders to indiscriminate prison sentences, and gained nothing in public safety. . . [W]e must make non-violent drug offenders eligible for parole sooner. . . Again, for the good of the Commonwealth, send me a bill with the right reforms to both our Habitual Offender law and our mandatory minimum sentencing laws for nonviolent drug offenders. I will not accept one without the other.”

If you live in Massachusetts, tell your state representatives that you agree with the Governor! The Senate already passed a bill that includes mandatory minimum reforms. We are now waiting for the House of Representatives to do the same thing. Click here to send a message to your state Representative. Let the House know that the Governor is right.

As always, please let us know if you have any questions.

Barb Dougan
Massachusetts Project Director
Families Against Mandatory Minimums (FAMM)

FAMM in Huffington Post: Why Does Mercy Bug Us So Much?

2012-01-20T10:29:00.002-05:00

FAMM's Molly Gill has an opinion piece published over at the Huffington Post right now, asking "Why did Governor Haley Barbour's pardons cause such a backlash?"

The last 30 years of sentencing policy may provide an answer. Thirty years ago, America's approach to punishment shifted. We rejected the notion that a criminal could be rehabilitated, and many states and the federal government began abolishing parole eligibility. They replaced it with sentencing guidelines and mandatory minimum sentencing laws that deprive judges of the power to tailor sentences to fit individuals and their unique crimes. ...

Pardons clash with this recent history and cause a kind of philosophical whiplash. They shouldn't. We are also a people who claim to be predominantly Christian and believe in mercy and redemption. Christian or otherwise, most of us extol second chances. With punishments as draconian as ours have become, second chances can literally be the difference between life and death, being an active or absent parent, prosperity or poverty. The pardon power is often the only remedy for those who have been unfairly or excessively punished in the harsh and inflexible sentencing system we have spent 30 years building. Pardons and commutations can correct some of these injustices. They grant forgiveness when, sadly, we forget to be merciful. Our founding fathers included the pardon power in our Constitution for precisely this reason. They betted on us going too far in our zeal to punish and created pardons as a safeguard for those on the receiving end of our excess.

Governor Barbour's pardons are an invitation to our better natures to forgive and to recognize that people can change. We applaud him for his courage and thank him for the reminder.

Good and Mad Reading for the Weekend: Virginia Edition

2012-01-20T10:23:00.003-05:00

Virginia lawmakers are off to the races to create new mandatory minimum sentences. The Richmond Times-Dispatch has the skinny on proposed new mandatory minimums for drugs, drunken driving, and sex offenses:

[L]egislation carried by Del. Robert B. Bell, R-Albemarle, (House Bill 968) and Sen. Mark D. Obenshain, R-Harrisonburg, (Senate Bill 159) would establish a mandatory minimum sentence of five years imprisonment for second-time drug traffickers (excluding marijuana) who have been convicted of a violent felony and 10 years for third-time offenders.

Currently, there is no mandatory minimum incarceration for a second offense and the minimum for a third is five years. ...

Bell and Obenshain also are carrying a proposal backed by McDonnell to impose a mandatory minimum life sentence for rape, forcible sodomy and object sexual penetration of a child under age 13. ...

Del. David B. Albo, R-Fairfax, is carrying House Bill 49, which would establish a one-year mandatory minimum sentence for involuntary manslaughter resulting from a DUI and a mandatory five-year minimum for aggravated involuntary manslaughter from a DUI.

We give two-thumbs down to this proposal. Mandatory minimum sentences are expensive (the governor has already added millions to the state budget proposal to cover the new ones he wants), unjust, and less effective than cheaper alternatives like drug courts. Mandatory sentences also help pack prisons.

This is the problem with getting "tough on crime" -- "tough" never seems to be tough enough. The result is a one-way ratcheting of sentences higher and higher -- at taxpayer expense.

Barbour Defends Pardons

2012-01-19T17:33:00.003-05:00

Former Mississippi Governor Haley Barbour has been under the gun for pardoning more than 200 people recently, including several murderers who worked at the governor's mansion. But he's not taking the criticism lying down -- today in the Washington Post, he hits back with a thoughtful and eloquent defense of his decision to show mercy.

Here's a snippet:

In Mississippi, the constitutional power of pardon is based on our Christian belief in repentance, forgiveness and redemption — a second chance for those who are rehabilitated and who redeem themselves. Other great religions have similar tenets; so does the U.S. Constitution.

Mississippi spends about $350 million a year on our corrections system, much of it aimed at rehabilitating those who went wrong. Regrettably there are bad actors who will never be rehabilitated, but many who go to prison can be helped. Our state recidivism rate is just above 30 percent, far below the national average.

For some who are rehabilitated and redeem themselves, the governor is the only person who can give them a second chance. I am very comfortable giving such people that opportunity.

FAMM applauds Barbour for his courage and for reminding us of the value of mercy and second chances.

Now, if only other governors and President Obama would follow Barbour's lead!

Miss America's Unconventional (?) Cause

2012-01-17T10:15:00.002-05:00

AP photo

World peace. Starving children. Curing disease. All noble, worthy, and traditional causes that many a Miss America has picked up and used her platform to champion.

But to our knowledge (we confess that we are not devoted followers of the pageant), the new 2012 Miss America will be the first to champion the children of incarcerated parents -- mostly because she is one herself.

USAToday reports:

[Miss Wisconsin Laura] Kaeppeler, 23, has an unusual background. She says she thought long and hard as to whether she should make her father's jail time for mail fraud part of her pageant platform, reports AP.

Her father, Jeff Kaeppeler, served 18 months in federal prison for mail fraud, a sentence he started when Laura was entering college. He was backstage Sunday night with his daughter, who called him her "best friend."

Kaeppeler's mission: She wants children of incarcerated adults to feel less alone, to have mentoring and as much of a relationship with their parents as possible.

She majored in music and vocal performance at a private Lutheran liberal arts college in Kenosha and initially said she wanted to become a speech therapist, but now Kaeppler plans to use her $50,000 scholarship money to become a lawyer, specializing in helping children of incarcerated adults.

Wahoo! We extend a warm, heartfelt welcome to Miss Kaeppeler and admire her for shining a spotlight (literally) on this important issue. The United States is the world's largest jailer, with 2.3 million in prison and an additional five on some form of court supervision. There are over 1.7 million children with incarcerated parents in our country. Draconian prison terms -- including mandatory minimum sentences -- perpetuate our addiction to incarceration when better, smarter, cheaper options exist (and would keep families together).

We applaud you, Miss America, and invite you to join us in our work for justice!

Visit Miss America's website, Circles of Support, for more information about her worthy cause.

Congress: You Can't Foresee Everything, So Get Rid of Mandatory Minimums

2012-01-17T09:37:00.000-05:00

That's the message of this excellent op-ed from FAMM President Julie Stewart in The Washington Times, providing FAMM's take on the case of ex-Marine Ryan Jerome, who faces a possible 3.5-year mandatory minimum despite his good-faith efforts to follow New York's gun laws.

The op-ed points out one of the ironic aspects of Congress's creation of mandatory minimums: often, when one of these laws (which they created) is used in a way Congress doesn't approve of, it's the prosecutor who gets a tongue-lashing at an investigation, and the president who has to intervene with a commutation to save the day. But why rely on mandatory minimums, prosecutors, and presidents when Congress could simply restore to judges the power to get it right in every imaginable (and unimaginable) case? Writes Julie:

In many ways, the Jerome case reminds me of the prosecution of U.S. border agents Ignacio Ramos and Jose Compean. They were sentenced in 2006 to more than a decade in prison after a jury found them guilty of shooting an unarmed illegal immigrant and covering it up. The agents’ long sentences were required by a federal mandatory minimum sentencing law. Nevertheless, members of Congress hauled the prosecutor who tried the case to Washington for a grilling. They couldn’t believe he had the audacity to use the law they had written. Seeing that the judge had no discretion, many members of Congress then asked President George W. Bush to intervene, which he ultimately did by commuting the agents’ sentences. ...

Ramos and Compean were relatively lucky. Perhaps Mr. Jerome will get lucky, too, and the Manhattan D.A. will find some way to resolve the case without Mr. Jerome going to jail. But it’s not reasonable to expect that presidents and governors are going to be able (or willing) to save every unforeseen defendant from being saddled with an ill-fitting mandatory sentence. The only way to make sure that the time fits the crime is to get rid of mandatory minimum sentences and let judges consider all the relevant factors in crafting individualized sentences.

Hear, hear!

Good and Mad Reading for the Weekend

2012-01-13T13:40:00.004-05:00

The title of the subject of this week's good and mad reading alone should prompt you to read it: it's called "Have Gun? Don't Travel!"

It tells the story of Ryan Jerome, a Marine now facing a mandatory minimum of 3.5 years for carrying a gun in New York -- even though he had a valid concealed carry permit from Indiana and had no idea that it wasn't good in New York State. The story neatly highlights the flaws with mandatory minimum sentences, as well as the injustice that might result when a person doesn't know he's breaking the law:

The first major issue Jerome’s case raises is the justice of the “mandatory minimum” sentence. Mandatory minimums are what they sound like—they are minimum sentences delineated by state legislatures or Congress to ensure that certain acts are punished with at least a given amount of time in prison, notwithstanding that a judge, knowing the relevant facts of a particular case, might feel that a lower sentence would better serve the ends of justice. And the judicial neutering is, often, the express intent behind the legislation, and certainly was in the case of the New York City gun laws. In 2005, new mandatory minimum sentences for gun violence became a part of the city’s strategy to reduce violent crime. As New York City’s Criminal Justice Coordinator John Feinblatt was quoted as stating in the New York Timesabout NYC gun laws before the change: “there was an exception in practice that you could drive a truck through…if the facts of the case suggested to the judge that there was some sympathetic reason why the defendant should not face time in jail, they could sentence them to anything they wanted, including just probation.” In other words, before the 2005 law, the judge could take into account “the facts of the case” and “sympathetic reason[s]”, and rule accordingly; put another way – prior to the enactment of the mandatory minimum sentence, the judge was free to exercise judgment. But not anymore; as Mayor Bloomberg bragged in his victory lap after the legislation passed, “Now, if you are convicted, you will serve a minimum of 3½ years behind bars – no exceptions.” (Presumably, the executives and managers of Bloomberg’s media empire were allowed – indeed, encouraged – to use judgment in running the business, accounting for its huge success over the years.) ...

More likely than not, a lack of ill intent argument will not work; it is the citizens’ responsibility to understand the laws of the polity in which he is residing, no matter how draconian or absurd the laws seem. If a person knows that he has a gun in New York City, even if he thinks that his possession accords with the law, he will be found liable.

Jerome’s fate, then, rests not with a due-process guarantee, nor with the “mercy of the court”—remember, “the court” can no longer render mercy—rather, the ultimate question will be whether the district attorney brings the charge or not. Whereas in earlier times the judge represented a potential bulwark against a harsh penalty—even if the defendant were to plead guilty—the prosecutor now has sole discretion, and will likely be the only arbiter of Jerome’s fate.

Most people in Jerome’s situation find themselves helpless, and end up pleading guilty to a crime where they intended the act but did not intend to flout the law. They might make a deal that gives them “only” two years in prison; a harsh penalty to be sure for an essentially law-abiding citizen.

Mandatory minimums are a bad idea in all cases, but they are an especially bad idea in situations where a person unwittingly breaks the law even as they're attempting to follow the rules.

What Good can a Murderer Do?

2012-01-13T13:11:00.000-05:00

Former Mississippi Governor Haley Barbour has been taking more flak than a WWII fighter pilot this week for pardoning 200 people, including murderers. The public outcry has ranged from "He didn't follow the Constitution" to "What's he doing letting murderers and rapists out?!" to "Why do we have this antiquated pardon system anyway?"

But to me, the saddest part is the tone of those who are essentially saying, "Once a murderer always a murderer." There is no affirmation of the human spirit here; no recognition that some people -- not all people, but some people -- can and do change and deserve a second chance out here with the rest of us. There is no humility; no acknowledgment that, but for the grace of God, it could be me sitting behind bars serving life for killing someone. There is no mercy; only a dehumanizing condescension that says, "These murderers are not people -- they are, forever and always, only murderers."

Well, this stirring article from the Detroit Free Press takes a deeper look at what good a band of murderers can do in Michigan's Ryan Correctional Facility:

In 2008, more than a dozen inmates -- members of an NAACP prison program -- started bringing troubled young men, ages 15-18, into Ryan once a month for some real talk on life and crime. It happened again on Dec. 16, when more than 20 Detroit teenagers, mostly from Osborn High School, walked through the metal detectors into the drab prison visiting room, many expecting some kind of lame and discredited Scared Straight show.

But Ryan's Youth Deterrent Program is not Scared Straight. I'm not sure you can scare kids today, anyway. Prisoners don't scream, threaten or get into anyone's face. They speak calmly and respectfully, sitting with young people in a circle on cheap plastic chairs, telling their stories, asking questions and listening. ...

Wearing numbered orange and blue uniforms, most of these prisoners are serving life sentences for murder. Only they can separate the fantasies of thug life from the realities of living doubled-up in a closet-sized steel cell, losing family and friends, submitting to strip searches and enjoying no privacy. ...

So far, the results are encouraging. Noah Bruner, founding director of Operation Reach community center in Saginaw, brought 100 teenagers into Ryan from March 2009 to March 2010. (Ryan inmates just contributed $500 to the community center to help pay for two vans.) None got in serious trouble afterward, Bruner said. The community must, however, follow up with mentors and other social and recreation services.

I don't know the facts of all of the cases Governor Barbour pardoned or commuted. It does sound like at least some of the clemency grants were done improperly and hastily, and that victims were not given the consideration they would have liked to receive. If a few undeserving folks slipped through, it should not reflect on those who deserved and earned clemency. FAMM advocates for increased use of the pardon power, and Governor Barbour has acted bravely. We'd like to see that much courage displayed by other governors and President Obama.

Prisoners -- who are, at the end of the day, human beings just like you and me -- can redeem themselves. They have powerful stories that can make a positive impact, as the Michigan story shows. It’s not just nonviolent offenders who get sentences that don’t fit, or earn a second chance at society’s trust.

-- Stowe

What's it Save Us?

2012-01-12T14:20:00.000-05:00

For many a state legislator, that's the top question for sentencing reform proposals. The problem: many states can't provide a good answer.

That problem is highlighted and discussed in this new report released by the ACLU and the Center for Budget and Policy Priorities. This blog post by Inimai Chettiar summarizes the report (a good thing for those of us who aren't budget analysts) and offers an excellent example of how states can sabotage their own sentencing reform bills:

many state budget analyses tend to focus on the upfront start-up costs of a bill, but fail to examine the later savings these programs will bring — even savings that could be realized in the following year.

Earlier this year, for example, bipartisan legislators in Maryland proposed a bill to create non-prison sanctions for individuals who commit technical parole violations, such as missing a meeting with their parole officer or failing to complete community service. More than one-third of the people behind bars in this country are there for similar technical violations, not for new crimes. Several other states have implemented this same kind of reform and reduced its prison population and spending within just a few years, while continuing to see their crime rates drop. But in Maryland, a poorly performed state budget evaluation considered only the up-front costs of the proposed program and ignored the future savings it would bring, concluding incorrectly that the reform would cost too much. As a result, the bill was scaled back. Now, Maryland will continue to automatically send most individuals who violate parole conditions back to prison even if it is for something as small as missing a parole meeting.

What a costly mistake! There is more to good sentencing reform legislation than smart-on-crime solutions that keep the public safe. Legislators need to know what reforms will cost -- and save. If they don't, the results could be counterproductive.

Immigration Mandatory Minimum Scorned in Australia

2012-01-11T12:10:00.002-05:00

We all know how it works: legislators get upset about some sensational or controversial crime and create a "get tough" mandatory minimum sentence for it. One of these hot-button crimes du jour is illegal immigration. It's a topic that raises strong emotions on all sides, but are mandatory minimum sentences really a good idea for these offenses?

In Australia, 62% of the readers of the Sydney Morning Herald appear to say no (at least, the figure was 62% when we responded to the unscientific poll). This brief article describes a judge's resistance to imposing a five-year mandatory minimum sentence on a "people smuggler" who earned less than $500 for bringing 20 Afghani refugees into Australia. (In the U.S., a similar offense would carry a three-year mandatory minimum.) Here's the skinny:

The court heard [the defendant] Hasim had agreed to make the journey after being approached by organisers in Indonesia.

He was paid less than AU$500 for his role.

Defence barrister Catherine Morgan told the court Hasim was illiterate, and had agreed to the job so he could to help his mother and sister, for whom he was the sole provider.

Judge Martin agreed Hasim's personal circumstances made him as desperate and as vulnerable to exploitation as the refugees on his boat.

"The reward for the passengers was some chance of living in Australia, while your reward for this risky voyage was, it seems, approximately $480," Judge Martin said.

"It's blindingly obvious that you had no understanding of the true consequences of your conduct."

Judge Martin imposed the five-year term, but said the penalty did not reflect the facts of the case.

"Commonly savage penalties are being imposed upon the ignorant, who are simply being exploited by organisers - you are one such person," he said.

"It's obvious that the legislation imposing a minimum mandatory penalty deprives a court from exercising a full and proper sentencing discretion in cases such as this."

Illegal immigration is a hot-button topic everywhere. This international example shows that mandatory minimum sentences for immigration offenses produce unjust and irrational results -- just like mandatory minimums for any other crime.

Paying a Price, Long After the Crime

2012-01-11T11:44:00.002-05:00

That's the title of a head-turning New York Times opinion editorial by criminal justice experts Alfred Blumstein and Kiminori Nakamura, which describes the experience of countless former offenders (and non-offenders) who have paid their debts to society ... or so they thought.

The op-ed raises some disturbing facts about just how many Americans have a run-in with the law -- and find that it changes their lives:

A stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives. In 1967, President Lyndon B. Johnson’s Crime Commission found that about half of American males could expect to be arrested for a nontraffic offense some time in their lives, mostly in their late teens and early 20s. An article just published in the journal Pediatrics shows how the arrest rate has grown — by age 23, 30 percent of Americans have been arrested, compared with 22 percent in 1967. The increase reflects in part the considerable growth in arrests for drug offenses and domestic violence.

The impact of these arrests is felt for years. The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime. In November the American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses. More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone.

That's horrible news in the best of times, much less in a global economic downturn like the one we're currently wishing would end (and soon, please). In the U.S., there are currently over 7.3 million people in our criminal justice system -- and those are only the people who got convicted, not just arrested.

So, is there any data that hints when it might be absolutely safe to hire someone with a conviction or arrest record?

It is well established that the risk of recidivism drops steadily with time, but there is still the question of how long is long enough. By looking at data for more than 88,000 people who had their first arrest in New York State in 1980, and tracking their subsequent criminal histories over the next 25 years, we estimate the “redemption time” — the time it takes for an individual’s likelihood of being arrested to be close to that of individuals with no criminal records — to be about 10 to 13 years. We also found that about 30 percent of the first-time offenders in 1980 were never arrested again, in New York or anywhere else.

If our sole goal of punishment is public safety -- making sure people don't commit more crimes -- these numbers raise some interesting questions about sentencing policies. If 30% of first-time offenders are unlikely to ever be arrested again, should that 30% ever go to prison? Perhaps the encounter with the criminal justice system is itself enough to lead them away from crime. If the "redemption time" is 10 to 13 years after a conviction, should a sentence ever be longer than that?

I don't know the answers -- I'm just asking the questions.

--Stowe

A Position That I Think Worth Stating

2012-01-11T09:54:00.001-05:00

311 has been one of my favorite bands since a co-worker lent me a tape of theirs in 1994. Their August 1995 show at the Night Owl in Pensacola, Florida was one of the first shows I ever attended. At that time 311 had recently released their third album, which featured a few songs that would become huge hits and quickly propel them to the top of the music industry.

Yesterday, on my drive to Tallahassee, I threw in a CD (they still exist!) I hadn’t listened to in a while: 311’s second album, “Grassroots.” Released in 1994, “Grassroots” is still among my all-time favorite albums.

While I’ve memorized every lyric, guitar riff, drum fill and bass line on that record, I hadn’t remembered that one of 311 ‘s two vocalists, Nick Hexum, had written a verse that is as relevant to FAMM’s work today as it was then. I won’t repeat the title of the song on FAMM’s family-friendly blog, but in the penultimate track on the album, Hexum writes:

“. . . sing along with a cry of a mandatory sentence for a crime with no victim, when everybody knows jail terms should be picked in the order of the pain that they cause; ‘do what thou wilt’ should be the whole of the laws until you violate the rights of another; respect the space of your sister and your brother. The war on drugs may be well intentioned but it falls (expletive) flat when you start to mention an overcrowded prison where a rapist gets paroled to make room for a dude who has sold a pound of weed; to me that’s a crime. Here’s to good people doin’ time . . .”

Admittedly, the other verses in the song aren’t quite as poignant, but in just a few lines Hexum makes a compelling argument against mandatory sentences and the drug war. FAMM takes no position on drug legalization generally, but prison overcrowding is one of the many negative consequences of mandatory minimum prison sentences, and the federal government continues to lock up thousands of marijuana offenders every year.

311 has been doing their thing since 1991 and have sold nearly nine million albums in the U.S. FAMM, of course, has been fighting mandatory minimum sentences and making the case for fairness in the criminal justice system for more than 20 years. And have had our fair share of success, too. There’s still a lot of work to be done. Nick, if you’re out there, join us!

Listen to the song here.

Buy 311 albums and help FAMM by clicking the Amazon link here.

Greg Newburn, the author of this post, is the Director of FAMM's Florida Project. Find out more about FAMM's work in Florida here. You can also follow FAMM's Florida Project on Twitter: @FloridaFAMM.

The President's Stingy Use of Pardons

2012-01-09T09:29:00.002-05:00

That's the title of this powerful editorial in Sunday's Washington Post, which issues a resounding call for more pardons and commutations from the Obama administration.

Every day, FAMM hears more and more stories of nonviolent, low-level offenders spending decades in prison -- many remaining long after they have conquered the personal demons that put them there. Commutations can cut years off of unjust terms and reward hard-earned rehabilitation. Pardons can give people a new lease on life and better chances at good jobs. Clemency isn't just a boon to those who receive it; it can also increase respect for the justice system by repairing injustices. President Obama need not be criticized or scandalized by using his pardon power, if he uses it wisely and without showing political or personal favoritism.

Here's the full editorial:

By Editorial Board, Published: January 8
IN A RECENT series of articles on presidential pardons, Dafna Linzer and Jennifer LeFleur revealed disturbing and disappointing truths about a process that is meant to correct injustices against those who have been unfairly or disproportionately punished by the criminal justice system. What was designed as a tool to bestow mercy often turns on the most cynical of factors and produces results few would recognize as fair.

The series, which was produced by ProPublica and published in The Post, found that white offenders are four times more likely to receive presidential pardons than are minority individuals guilty of similar crimes and sentenced to similar terms.

Presidents increasingly neglect the pardon power, and on those rare occasions when they act they often do so with great timidity.

President Obama has not broken the pattern. Since taking office in 2009, he has issued 22 pardons and one commutation. Last year, he pardoned a man convicted in the 1960s for whittling away the edges of pennies to pass them off as dimes in vending machines. Like most of those Mr. Obama has pardoned, the coin mutilator did not serve time behind bars.

Mr. Obama is on track to underperform President George W. Bush, who issued a measly 189 pardons during his two terms in office — the stingiest record of any two-term president since World War II.

But there is reason to hope that Mr. Obama will reverse course. In November he issued his first act of mercy involving a crack cocaine defendant when he commuted the sentence of [FAMM member] Eugenia Marie Jennings of Illinois.

Ms. Jennings, an African American mother of three who was a victim of domestic abuse, was sentenced in 2001 to nearly 22 years in prison for selling 13.9 grams of crack to an undercover officer. She was also required to pay a $1,750 fine and submit to eight years of supervision once released. During her decade behind bars, Ms. Jennings overcame her own addiction and began speaking with students about the dangers of drug abuse.

Mr. Obama — in what thus far has been his most muscular use of the pardon power — ordered that Ms. Jennings be freed Dec. 21, in time for the holidays and to see her daughter graduate from high school; he kept in place the supervised release requirement.

Ms. Jennings was one of the fortunate few who had the help of top-flight lawyers, D.C. advocates and a home-state U.S. senator (Illinois Democrat Richard J. Durbin). Surely there are others just as worthy who may not have secured the lobbying support to distinguish their cases among thousands filed each year. Many of them are victims of laws that treated crack cocaine far more harshly than powder cocaine. Their petitions should not and need not be neglected.

The president should build on his courageous pardoning of Ms. Jennings by directing the Justice Department to help him fulfill his constitutional duty to see that justice is done.

Alabama's New Year's Resolution?

2012-01-06T12:52:00.002-05:00

You'd think that if your prison system held almost twice as many prisoners as it was built for, the state legislature would do something about it.

Not in Alabama, apparently, as this editorial from The Anniston Star bemoans:

The new year has arrived, yet Alabama remains saddled with one of its most pressing problems — the profound overcrowding of its state prison system. Last year, officials discussed possible options. Nothing substantial was decided. The state has carried that problem from one year to the next. ...

In Alabama’s case, the devil resides in the numbers. The state’s prisons are at 190 percent of capacity. They’re designed to hold less than 15,000 inmates, and today they house nearly 31,000. One doesn’t need to interview Commissioner Thomas to have a vague idea of the widespread logistical and health-related problems that causes. ...

Our response early in 2012 is the same as it was in 2011: Any effort to lessen prison overcrowding must also include the revival of sentencing-reform legislation that has died in past sessions of the Legislature. ...

Today, Alabama continues to need a two-pronged approach: one legislative, another in corrections. It’s tough to see a scenario where some sort of inmate release isn’t warranted — particularly first-time offenders convicted of non-violent, non-sex crimes. Alabama’s state prisons are too crowded to think otherwise.

However, the Alabama Legislature owns a critical role; it must make sentencing reform a priority in its upcoming session. This is where the state’s Republican majority needs to demonstrate true leadership and make those “tough decisions” that will alleviate this obvious and severe problem.

Alabama isn't the only state resolving to cut corrections costs: Georgia, Kansas, and Oregon are a few others.

Sentencing reform must be on the table, but will legislators be brave enough to do it? Many say no, but who says sentencing reform has to be a political disaster? Or that it has to endanger the public? This black-and-white thinking is exactly how we got into this mess in the first place: instead of using smart-on-crime options, legislators went for the toughest sentences they could think of.

And now taxpayers are paying for it -- and can no longer afford to.

Here's hoping states like Alabama keep this New Year's resolution and reform their mandatory sentencing laws.

Anatomy of a New Mandatory Minimum

2012-01-04T10:07:00.001-05:00

Ever wonder what inspires lawmakers to create rotten new mandatory minimum sentences?

If you think it's research, expert advice, and crime data, you'd be wrong.

One bad story -- one crime, one offender -- is enough to inspire a new, bad law.

This little article from the Rock Hill, South Carolina Herald explains everything that's wrong with this way of creating sentencing laws:

A bill recently filed by state Sen. Shane Martin, R-Spartanburg, addresses a real problem. But we're not convinced his proposal is the best solution.

Martin's bill would add five more crimes to the list defined as "most serious offenses." Once on the list, the offenses would be eligible for a life sentence in prison [under South Carolina's two-strikes and three-strikes laws].

Martin said the bill was motivated by a case in which an offender, Robert Odell Brown, with a long criminal record was charged with shooting a Spartanburg County deputy who was trying to arrest him. The deputy lost the sight in one eye as a result of the shooting.

Brown's previous offenses included convictions for assault and battery with intent to kill, possessing a stolen car and providing false information to a law enforcement officer. Martin contends that if Brown had been sentenced to prison for life, he could not have shot the deputy.

In this case, Martin probably is right. Brown's list of convictions seems serious enough to have put him away for life. ...

But two-strike, three-strike mandatory sentencing isn't necessarily appropriate in every situation. Judges ought to have the discretion to consider the different aspects of each case that comes before them without using a cookie-cutter approach to sentencing.

No two cases are exactly alike. And extenuating circumstances can affect which sentence is appropriate.

Under Martin's bill, the only one who could exercise such discretion would be the solicitor. This would increase the likelihood that solicitors, who are elected officials, would seek life sentences in high-profile cases but not in less visible cases. The fate of a defendant might depend on the amount of public outrage against him.

We understand the inclination to lock criminals up and throw away the key. But that is one reason our state prisons now are so overcrowded.

Some people deserve to spend their lives behind bars. But the system should be able to dole out appropriate punishments without resorting to one-size-fits-all mandatory sentencing.

2012 is Off with a Bang!

2012-01-03T15:00:00.001-05:00

The FAMM staff is back in the office, and we hope you had a great holiday season.

And 2012 is already off with a bang. Today's news roundup is full of all kinds of sentencing goodies:

The Crime Report has a useful analysis of recent drops in state prison populations around the country and offers New York, New Jersey, and Michigan (the latter two where FAMM won significant victories) as examples of states combating prison population growth effectively through reforms.
This excellent article from the Pittsburgh Post-Gazette looks at the dangers of mandatory minimums and the power prosecutors have to use (and abuse) them during plea bargaining. It's part of a bigger, interesting series on the consequences of a drug bust.
This Washington Post editorial celebrates the low crime rates the U.S. is currently enjoying and concludes with what any sentencing nerd can tell you: we still don't really know why.
And 2012 could see movement on new state sentencing reforms: Georgia is considering alternatives to incarceration, and Oregon's Commission on Public Safety is urging more research so that it can propose smart-on-crime sentencing reforms to keep the state's prison population from growing.
The Christian Science Monitor has this thoughtful piece titled "Four Ways to Relieve Overcrowded Prisons."
This interesting story from The Daily Caller is a warning and a reminder: just because you have a gun carrying permit in one state doesn't mean you can't be charged with a gun crime -- and face a mandatory sentence for it -- in another state.

We'll keep the fascinating sentencing news coming here on the blog, all throughout 2012!

Happy New Year!

The Best Present is a Parent's Presence

2011-12-23T12:15:00.000-05:00

It’s the holiday season, which means that the days are shorter and the holiday treats (and subsequent sugar rushes) are plentiful. Here at the FAMM office in Washington, D.C. it means we have our mini Christmas tree up and decorated and our lovely holiday cards from prisoners, supporters, family and friends proudly displayed.

It also means that we’ve started collecting toys to donate to the National Women’s Prison Project’s annual toy drive. The Baltimore-based group collects toys to give to the children of incarcerated women during the holidays.

This wonderful toy drive also serves as an unpleasant reminder that the devastating consequences of mandatory sentencing extend far beyond those who are convicted and sentenced – they affect whole families and entire communities, and they affect children who aren’t old enough to understand why mommy won’t be home for Christmas, and those who are.

Having a parent in prison can have significant consequences for children, including an increased likelihood of being incarcerated themselves. Sadly, this is not an uncommon experience – according to the most recent Bureau of Justice Statistics data in 2007, 1.7 million children had an incarcerated parent, up 79 percent from 1991.

Now, we understand that when people violate the law there needs to be consequences. We understand that sometimes those consequences include incarceration. We also understand that having a child is not a get-out-of-jail-free card. However, as lawmakers continue to make policies that result in long, inflexible sentences, and as Congress considers adding even more mandatory minimums to the books, we hope that they will consider all of the consequences of these laws – the costs for taxpayers of incarcerating nonviolent, low-risk offenders for decades, the effects on public safety, the fairness of these policies for all people, and last, but certainly not least, the consequences for the littlest among us – those who know all too well what it is like to celebrate another Christmas, another New Year, without their mother or father.

By allowing judges to consider all of the facts of a case, all of the circumstances – good and bad – of a person’s life, perhaps fewer children will have to experience the holidays without their parents, and more parents will be able to see the joy on their children’s faces when they receive the best gift of all – a parent home in time for the holidays.

This holiday season, hundreds of families will be reunited with loved ones sooner than they originally thought due to the retroactive changes to the crack cocaine guidelines. This was a victory for justice and for families. We hope to have additional victories in the New Year that will allow more families to spend the holidays together. Stay tuned – you’ll be hearing from us in the New Year as we continue to fight hard to achieve these goals in 2012 and beyond.

From all of us at FAMM, Happy Holidays and Best Wishes for the New Year!

Holiday Spirit

2011-12-21T15:14:00.000-05:00

This holiday I have something special to gives thanks for – both my sons are home. After serving 13 years in federal prison, Lamont Garrison just came home one month ago. His twin brother Lawrence served 11 ½ years and has been home since 2009. This will be the first holiday we’ve spent together in over a decade. But while my sons were in prison, I made sure we celebrated them together in a different way.

Mail is the most appreciated vehicle in prison communication. I never wanted my sons to miss the daily mail call, especially at the holidays. Around December 15th, I would get special cards to start sending so they would get a bunch of holiday mail from me. I knew that other family members and their friends would send holiday cards and Season’s Greetings, but I wanted to fill the gap myself.

Not just cards, but magazines too – specialty magazines like Robb Report, 4 Wheels, Hot Wheels – the list is long. I would just wait for the phone call of joy that they got some magazines, cards, and pictures. That was our holiday together.

This year it is just a little different.

They are both in town. I can kiss them, touch them, talk to them, listen to them talk to each other, look at them and smell them as much as I want. This year, yes this year has finally come. I am not buying any gifts because what I wanted for so, so many years is here with us.

Karen Garrison is a staff member here at FAMM. Read her Story of Success on FAMM’s website here.

Will California's "3 Strikes" Be Out?

2011-12-21T12:00:00.000-05:00

As sentencing reformers in California ready a ballot initiative to reform the state's three-strikes mandatory minimum sentencing law, their efforts got a boost from the editors of Bloomberg. The entire editorial is worth reading, but we liked this passage in particular:

Many of the more than 8,000 prisoners serving third-strike sentences in California are hardened, violent criminals who have earned lengthy terms, or life, behind bars. Their sentences would not be shortened by the ballot initiative. But more than 3,600 third-strikers have committed crimes that were neither violent nor serious. In addition, local prosecutors and judges exercise broad discretion on third-strike sentencing, producing vast disparities among the state’s counties.

The original three-strikes law was written too broadly to provide just punishment in the thousands of circumstances it covers. With the state buckling under the strain of chronic budget deficits and a sagging economy, it is now too expensive to maintain. According to the state auditor, the cost of imprisoning nonviolent three-strikes offenders for 25 years is $4.8 billion. (California will spend roughly $10 billion on prisons this year -- more than it spends on its once-renowned higher education system.) Backers of the initiative say it will save at least tens of millions of dollars a year.

"I can't change it."

2011-12-16T00:06:00.000-05:00

Nothing captures the insanity and misery of mandatory minimum sentencing laws than hearing a federal judge utter those four words while imposing a decades-long sentence to a first-time offender. "I can't change it." This time, those four words of futility came from U.S. District Court Judge Tena Campbell as she sentenced a 24-year-old man to 57 years in prison for armed robbery.

Armed robbery is a violent, serious crime. We at SentenceSpeak have no interest in defending gang members who commit crimes with guns. But we think it's fair to ask if this young man's egregious lapse in judgment should result in his rotting in jail until he's 81 years old. Is that the best solution our society can come up with in 2011?

A Better Way to Reduce Crime

2011-12-14T09:40:00.001-05:00

Senators Rob Portman (R-OH) and Sheldon Whitehouse (D-RI) published this op-ed in today's Politico. The bipartisan Senate duo support investing in smart-on-crime policies that help reduce recidivism and save taxpayer money. The ideas aren't new, but the growing support for them is. Good work, Senators!

Another Judge Goes Public

2011-12-08T23:16:00.001-05:00

In an op-ed in the Baltimore Sun, federal appeals court judge Andre Davis sets forth a compelling case against federal mandatory minimums. Judge Davis recounts the story of Tony Gregg, a drug addict who resorted to selling cocaine and is now serving a mandatory life sentence. Davis writes:

After 25 years of watching countless Tony Greggs serve out impossibly long sentences for transgressions that would be better served by drug treatment and social safety nets, I say with certainty that mandatory minimums are unfair and unjust. They cost taxpayers too much money and make very little sense.

FAMM is grateful to judges like Judge Davis who continue to speak out against mandatory sentencing, a stain on our nation's criminal justice system.

Want a Pardon?: Be White, Be Connected

2011-12-05T13:03:00.001-05:00

Those are the appalling findings in a two-part, in-depth expose in the Washington Post.

The opening salvo came on Sunday, with this shocker: white applicants for presidential pardons are four times as likely to succeed as minority applicants!

And this stunning article reports findings that

Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.

The articles are part of a riveting series by journalists Dafna Linzer and Jennifer LaFleur of ProPublica, an independent, non-profit newsroom that specializes in good, ole-fashioned investigative muckraking.

The series of articles includes this compelling call to action:

Once in a great while, journalists unearth a story that shocks the conscience and demands immediate action. Today's article on the racial disparities in the awarding of presidential pardons is one such instance. ...

Linzer and LaFleur's reporting shows a claim of innocence is virtually disqualifying. Instead of using their powers as a remedy for unfair prosecutions, Presidents George W. Bush and Barack Obama have largely delegated their pardon authority to a Justice Department office staffed by career prosecutors. ...

Pardon applicants are required to demonstrate "stability" -- defined as long-term marriages, low credit-card and bank debts, and a solid job history. Never mind that many Americans in today's economy would have trouble meeting these tests. The documents reviewed by Linzer and LaFleur show that whites who failed to meet some of these standards were approved while blacks with similar applications were rejected. It is clear that whatever rules exist, they are inconsistently applied.

The pardon office is an ideal subject for investigative reporting since it does not explain its decisions, gets little if any congressional oversight, and was, until recently, able to shield its key data from the Freedom of Information Act. ...

President Obama could restart the work undertaken by Gregory Craig, his former White House counsel, toward creating an independent group to advise the White House on pardon applications. Such a step would parallel what is done in some states, and would likely remove some of the pro-prosecution leanings of the current process. Specifically, the president could announce that claims of innocence will not disqualify those seeking pardons. This could be done by Executive Order (with a tiny shift in appropriated money by Congress).

Over the past several decades, the United States has reacted to rising crime rates by arresting, charging and convicting growing numbers of people. That increased emphasis on incarceration has been accompanied by a steady drop in the number of presidential pardons.

That can change.

FAMM could not agree more. The federal prison system is overcrowded and filled with people serving draconian mandatory minimum sentences. Granting commutations to reformed offenders to reduce some of their unjust sentences would make the system fairer, without endangering the public. But the pardon process is clearly broken.

It's time to fix it.

Florida Conservatives Understand the Need for Reform

2011-12-02T11:44:00.000-05:00

Right on Crime, the conservative criminal justice reform project based out of the Texas Public Policy Foundation, has been advocating sound reforms around the country since its launch last year. The group’s “Statement of Principles” has been signed by conservative heavyweights like Grover Norquist, Bill Bennett, and even the current frontrunner for the Republican presidential nomination, former U.S. House Speaker Newt Gingrich.

Interestingly, Right on Crime is “Florida-heavy.” For instance, the following notable Florida conservatives and business leaders have signed the Statement of Principles:

Jeb Bush, Former Governor
Allan Bense, Former Speaker of the Florida House
Richard Doran, Former Florida Attorney General
Barney Bishop, President and CEO of Associated Industries of Florida
Dominic Calabro, President of Florida TaxWatch
J. Robert McClure III, President and CEO of the James Madison Institute
Allison DeFoor, Former Chair of the Florida Republican Party, former Sheriff of Monroe County and former candidate for Lieutenant Governor Former Chair of Gov. Bush’s Ex-Offender Task Force Vicki Lukis
Tom Slade, Former Chair of the Florida Republican Party

The number of Florida signatories is no coincidence. Put plainly, Florida’s criminal justice system is broken. Florida taxpayers are paying far too much and receiving far too little in return.

Take Florida’s drug laws, for instance. For too long, Florida has relied too heavily on incarceration to solve its drug problem. Yet despite harsh mandatory minimum sentences, Florida’s drug usage rate has remained fairly constant, and in some areas has become dramatically worse. For instance, Florida adopted mandatory minimum sentences for prescription drug trafficking in 1999. In 2000, a year later, 869 people died of opiate-related overdoses. In 2009, a decade into Florida’s experiment with those mandatory minimums, that number was 2,905. Between 2003 and 2009, the death rate from Oxycodone overdoses in Florida increased 246%. If anything is clear from that data, it is that mandatory minimum sentences have utterly failed to stop Florida’s prescription drug problem.

Meanwhile, Florida’s prison population has skyrocketed, along with its Corrections budget. In 1993 Florida housed 53,000 prisoners. In 2007 the prison population had ballooned to 97,000. Today it stands above 100,000. In other words, Florida has nearly doubled its prison population in twenty years. Our incarceration rate is 26% higher than the national average, and we have the fastest growing prison population in the country. It’s no surprise, then, that Florida’s Corrections budget is nearly $2.5 billion annually. Worse, Florida’s Office of Program Policy Analysis and Government Accountability estimates that Florida’s prison population will hit 115,000 by 2015. According to OPPAGA, “The projected increase of 15,000 inmates by 2015 would require building nine prisons at a total cost of over $862 million. Each new prison adds $27 million to the department’s annual operating budget.” This, while Florida faces multi-billion dollar deficits year after year, and after legislators have already cut billions from the state budget.

Florida Senate President Mike Haridopolos recently said in the Gainesville Sun, “I think I speak for the majority of Floridians when I say that I would much rather spend taxpayer money on our state’s education system, road projects, health care or economic development than I would on our state’s prison system.”

He’s right. And judging from the number of Florida conservatives and business leaders who have signed the Right on Crime Statement of Principles, he’s not alone.

What can be done? How can conservatives protect public safety, reduce recidivism and return millions of dollars to Florida taxpayers?

That sounds like a fine reason to check FAMM’s blog next week.

Greg Newburn, the author of this post, is the Director of FAMM's Florida Project. Find out more about FAMM’s work in Florida here. You can also follow FAMM’s Florida Project on Twitter: @FloridaFAMM.

Why I work at FAMM

2011-11-30T17:22:00.001-05:00

My name is Leigh Bailey and I’m the Development Director here at FAMM. I’m in charge of making sure that we get the money we need to do our work. It can be hard to stay inspired to ask people and organizations for money day after day, especially in these tough economic times. Yesterday we even asked the 20,000 federal prisoners who we regularly update on laws and policies that affect them for money!

As soon as our request went out to the prisoners, we started getting messages back – so many wonderful messages – and these are why I work at FAMM. Because the people that we serve are telling us first-hand what FAMM’s work means to them and that they, many of whom have very little, will make a donation to support our work.

Here are just three of these amazing messages:

I want to thank you for all that you have done and yet to do I make 5 buck a month in here and they pay me on the tenth of every month this month I will be sending you that 5 bucks because I feel you deserve it your drive is amazing and I love you from the bottom of my soul it’s through you that I keep my faith and its through you that I will return home to my family and loved one thank you again and I know it’s not much but I will send it on the tenth .......:)

Julie count on a donation on my behalf. It won’t be much but I will try to do what I can. I thank u for all your effort and fight. There are many men and women in the prison system that do not have anybody to fight for them. So I thank you. Keep up the good work and God bless you.

Thank you so much, you are so right, we as prisoners can afford one dollar to fund the fight for our freedom. On dollar a month would be 20k per month and one less honey bun or two less sodas for us prisoners, we can make this sacrifice. Share that with the subscribers. Freedom comes at a cost and it is time we shoulder our part of this cost. God bless your efforts

And I wouldn’t be doing my job if I didn’t ask you to help FAMM continue our work. Please make a donation today. You can click here to donate on-line or send checks by snail mail to:

FAMM
1612 K Street NW – Suite 700
Washington, DC 20009

For the rest of this month, all donations we receive will be matched 1:1 by one of our donors, so please give as generously as you can.

Thank you!
Leigh

Happy Thanksgiving from FAMM!

2011-11-23T10:20:00.001-05:00

This year, FAMM has a lot that it is grateful for.

First, there's you -- our members, donors, and supporters. You make our work possible. You keep our doors open. You keep us fired up about sentencing reform. Your calls, questions, and comments keep us excited to come to work every day. Thank you!

Second, there are the reforms we've won together in 2011. We saw enormous progress in making federal crack cocaine sentences fairer. This year, 3,000 people will benefit from the Fair Sentencing Act of 2010. Another 12,000 are eligible for shorter sentences under the new, retroactive crack guidelines that went into effect this month. But don't worry -- we haven't forgotten the thousands of others who get different kinds of mandatory sentences each year.

Which is why, as soon as the turkey's in the Tupperware and the gravy's in the fridge, we'll be back here in the office, working for sentences that fit and justice that works.

Happy Thanksgiving to you and your families, wherever you may be on this holiday! And -- thank you!

Good and Mad Reading for the Weekend

2011-11-23T10:16:00.001-05:00

Over at Main Justice today, FAMM's Mary Price raises some objections to a recent speech from the Department of Justice, in which it blamed federal judges for increased sentencing disparities (including racial disparities) across the country since the U.S. Supreme Court made the federal sentencing guidelines advisory in 2005.

It's entitled "It's not the judges," and here it is, your good and mad reading for the long Thanksgiving holiday weekend. Reminder: FAMM's offices will be closed until Monday, November 28.

Obama Pardons 5, Commutes ... A FAMM Member!

2011-11-22T10:20:00.001-05:00

Monday evening, President Obama broke out of his three year-long impasse and used his pardon power to issue the first commutation of sentence in his presidency. He granted it to Eugenia Jennings, a FAMM member serving a 22-year sentence for a crack cocaine offense that involved (prepare yourself) a puny 13.9 grams of the drug. Her sentence was so long because she qualified as a "career offender," due to prior convictions for drug and addiction-related offenses.

She will go home on December 21, after serving a decade in prison.

Read FAMM's press release here, which includes the details of Eugenia's story. TalkLeft also has a post about her, and Politico has this piece, quoting FAMM President Julie Stewart.

Note that we have changed our Clemency Counter accordingly. But, my, one really is the loneliest number...

Jennings's outrageous sentence and her subsequent rehabilitation show how worthy she is of clemency. This Thanksgiving, I am particularly grateful that she will be going home seven and a half years early. I commend President Obama for taking this first step. Now, it's time to take more.

-- Stowe

Former MD Governor to Obama: Time to Pardon!

2011-11-21T16:48:00.001-05:00

An excellent op-ed in the Baltimore Sun today from former Maryland governor Bob Ehrlich calls on President Obama to pardon more than just turkeys this Thanksgiving week: the President should pardon and commute the sentences of some humans, too.

Here it is, in full:

Ehrlich: Obama neglects his duty on pardons
Former Gov. Ehrlich says President Obama has failed in an important responsibility

This Thanksgiving, President Barack Obama will follow a long-standing presidential tradition of pardoning a pair of turkeys. Unfortunately, he has largely neglected another presidential tradition: pardoning human beings.

Our Founding Fathers entrusted the president with an extraordinary power — the ability to grant clemency in the form of pardons (which restore civil rights) and commutations (which reduce unjust or excessive sentences) to federal offenders. In almost every state, the governor is given the power to pardon or commute the sentences of those who have broken state laws. It is a highly respected responsibility and duty of the office. In effect, it allows a duly elected executive to balance the scales of justice, when appropriate.

When I became the 60th governor of Maryland in 2003, I considered the pardon power an essential part of my job. I also saw it as a way to do justice. My Democratic predecessors had neglected the power, and I vowed not to follow their examples. In short time, our Office of Legal Counsel established a monthly day and time to review pardon and commutation requests. The team investigated and interviewed applicants and contacted victims. Together, we reviewed all variety of cases wherein there existed good reason to provide sentencing relief. Sometimes, there were serious questions as to the guilt of the defendant. In others, we re-evaluated the nature and seriousness of the crime in light of the inmate's administrative adjustment record. This rigorous but balanced system gave applicants the serious attention and thorough consideration both they and our citizens deserve.

This process also ensured I could represent to all Marylanders that our administration had fulfilled an important campaign pledge on a difficult issue. Our record of 249 pardons and commutations was met with neither wild cheering nor moral outrage. (I also rejected more than 200 clemency requests.) Governors are rarely thanked, but it was enormously gratifying to hear from those who received (and earned) clemency from me. Many shared their gratitude for restored rights, restored employability and restored years with their families. This sense of restoration drives the process and offsets the understandable resistance so many executives manifest toward it. Indeed, no man made process is perfect — and with this understanding comes the realization that mistakes can be made.

But that risk should not stop executives — including the president — from using this unique power. There are too many positive considerations in favor of clemency to neglect it. In some cases, federal mandatory sentences have grown too harsh. Convictions keep people out of jobs. Our justice system is imperfect; prosecutors and police make mistakes. Prisoners and ex-offenders can and do turn their lives around; many deserve a clean slate. The pardon power is the remedy when the justice system misfires — but it only works if executives are willing to use it.

To date, President Obama has granted only 17 pardons and no commutations. Thousands of federal prisoners and ex-offenders request relief every year. By sheer numbers, it seems impossible that no applicants have merited a commutation, especially when more than 75,000 federal prisoners are serving extended mandatory minimum sentences, mostly for drug offenses.

I urge President Obama to fulfill his constitutional duty and utilize his pardon power. On rare occasions, the power has been misused and abused; he does not have to repeat those (mostly political) mistakes. Historically, presidents have wielded the pardon power generously and appropriately, granting hundreds and even thousands of requests, with scandals few and far between. Most recipients are everyday, unknown people who desperately need a fresh start.

The presidential pardon power was intended for more than just turkeys. Using it wisely and regularly does justice, changes lives and fulfills a constitutional duty — and it might even enhance the president's sense of personal satisfaction in the world's most demanding job.

Robert L. Ehrlich Jr., a Republican, was the governor of Maryland from 2003-2007 and is now a partner at King & Spalding

The Lobbyist and the Crack Dealer

2011-11-18T13:49:00.001-05:00

That's the title of this moving op-ed from The Daily Caller, and it features two of FAMM's own: staff member Kevin Ring and profiled member Stephanie Nodd.

Those who don't know much about Kevin or Stephanie's cases and backgrounds will find their "odd couple" story moving and inspiring. It shows how incarceration crosses color, gender, and class lines; it can impact people who've walked the halls of Congress and those who've sold drugs to survive. It is reprinted below in its entirety, and we especially hope it encourages people who are facing prison for the first time and are worried or afraid. You are not alone.

The Lobbyist and the Crack Dealer
By Kevin Ring

When the second jury to hear my case found me guilty of committing five felonies related to my lobbying activities under Jack Abramoff, I was in a daze for a while. My biggest concern was what impact it would have on my two young daughters. I remained convinced of my innocence and knew I would appeal the verdict, but the prospect of serving time in prison became very real. Most of my friends offered sincere words of encouragement, but I began to realize that they couldn’t know exactly what I was feeling. The idea of going to prison seems like one of those things in life that you cannot truly get your head around until you are forced by circumstance to do so.

My friend Stephanie was more helpful. She reminded me that through my two trials my focus had been on the well-being of my girls and that same focus was what should guide me as I faced an admittedly frightening future. A mother of four children of her own, Stephanie said that any separation would be hardest on the kids and so to prepare myself — and them — for how best to cope. In these and other ways, she continually reminded me (without saying so directly) not to get bogged down in self-pity, which would help no one, but to confront the situation head-on.

Her practical advice was not devoid of compassion. Stephanie, like other friends, told me she would do everything she could to ensure my girls had the love and support they needed. She asked me what sizes they were — because she loved to shop and wanted to make sure that my girls had a couple of nice dresses to wear for special occasions while I wasn’t around.

This story might seem unremarkable except for one fact: I have never “met” Stephanie. She was sharing these words of advice and encouragement over email from Coleman Federal Prison in Florida. Stephanie has been in prison since 1990, serving a 30-year sentence for conspiring to distribute crack cocaine around Mobile, Alabama.

I came across Stephanie’s case while working for Families Against Mandatory Minimums (FAMM) and reached out to her because I simply couldn’t believe there wasn’t more to the story. Stephanie was barely 20 years old when she met a man who promised to help her make ends meet for her young children if she helped him identify business contacts in the Mobile, Alabama area. His business was selling crack cocaine and he was new to the area. Stephanie was a local.

Stephanie made a terrible mistake borne out of poor judgment and need, not greed. She helped the man for just over a month, made a little money and moved her family to Massachusetts. The man, however, was soon arrested and cooperated with authorities by, among other things, testifying against Stephanie.

At age 23, Stephanie, a first-time, non-violent drug offender whose criminal career lasted just over a month, was sentenced to 30 years in prison. She has been in prison since 1990. (Stop and think about that for a moment: Where were you and what were you doing in 1990? Think about how long ago that was.)

Thanks to Congress’s approval last year of the Fair Sentencing Act, legislation that finally reduced excessive penalties for crack-related crimes, and to the U.S. Sentencing Commission for making its crack guideline adjustments retroactive, Stephanie had her sentenced reduced to time served.

On Monday, after serving 21 years in prison, Stephanie Nodd will walk out of prison a free woman. Over the next several weeks, she will spend her first Thanksgiving and Christmas with her now-grown children in more than two decades.

I am happy for my friend. She did not need 30 years in prison to learn a lesson from her mistake. In fact, she didn’t need 21, 15 or even 10 years to pay her debt to society. And to think she was sentenced to such an unjust term to deter others requires you to accept that her life was expendable, that it was somehow okay to sacrifice her family for the greater good. The thought makes me sick.

I cannot deny that my feelings of outrage about Stephanie’s sentence are enhanced by the government’s initial sentencing recommendation in my case: life in prison. They later changed the recommendation to 17-22 years, and then to five years. (Fortunately, the judge imposed a far shorter sentence.) This personal experience forced me to think about the amount of time we are locking up first-time, non-violent offenders in this country.

Thanks to Stephanie (and from my work at FAMM), I know that too many people are being sentenced to excessive prison terms for undeniably stupid (but not violent) mistakes. I am so thankful that Stephanie was able to avoid devolving into bitterness and despair despite spending 21 years in jail, and instead was able to show concern and compassion for a stranger with whom she had very little in common.

Stephanie has resolved to use her experiences to help others. She wants to help young people avoid repeating her youthful mistakes. In addition, she wants to help educate the public and policymakers about our severe and nonsensical sentencing laws. For those of us lucky enough to call Stephanie a friend, we are just happy that she gets to begin this new phase of her life on Monday.

Kevin Ring is a freelance writer in Kensington, Maryland. He previously served on Capitol Hill as a counsel to then-Senator John Ashcroft; executive director of the Republican Study Committee; and legislative director to former Congressman John Doolittle.

The Power of a Picture

2011-11-17T16:46:00.001-05:00

Media from Missouri this week proves that a good photo of prison overcrowding explains the problem better than reams of data and statistics do.

It started with this article and photo spread from the St. Louis Post-Dispatch. The photos show inmates sleeping on the floor of a jail library and under stairwells -- not because there's not enough cell space, but because there aren't enough guards to watch over the new cell block that was supposed to ease overcrowding. The state could afford the beds, but not the staff. That ironic result puts prison budget and crowding woes in a whole new light, doesn't it?

This thoughtful reaction from the St. Louis Beacon looks at the prisoners in the photos not as just a burden on the budget but as -- prepare yourself -- actual human beings who deserve (and need) better:

One can hardly be faulted for thinking that herding dozens of inmates to sleep in a "library" - one sees no books in the photo, certainly - is to treat them not much better than animals. Our opinion of the photo should not change too much if we recall that the ones on the floor are criminals. For criminals are human beings, too. They are also our fellow citizens, however much they have betrayed our trust by breaking the law.

There is a cost here, but it is not so easily measured in narrow financial terms. It is the cost that comes with basically giving up on a segment of the population, which is the message such treatment unmistakably conveys. It says that we have stopped caring about rehabilitating inmates, or treating them with any measure of dignity. These things cost money, too, but maybe not as much as we think. It may end up costing more not to attempt to reform criminals, to give them no hope of making a better life for themselves.

It is a sad commentary on us that what will eventually change the way we deal with criminals will not be the human cost of so many lives lost in our prisons and jails, but the sheer financial bottom line. ...

I suppose one shouldn't complain too much about why we go about reforming our criminal justice system. Any change away from the horrible and unsustainable status quo - the one starkly depicted in the photo of the Jefferson County Jail - is one we should welcome.

As prisons eat up more and more of state budgets, it begs the question: what are your taxpayer dollars actually purchasing when you pay for more cells, more guards, and longer sentences? Is all that extra money actually making you safer, or just perpetuating an out-of-control system?

Fearing the Feds

2011-11-16T13:11:00.001-05:00

If you're a state with a serious prison overcrowding problem, you should be afraid of the federal government, according to this interesting editorial from the Anniston Star of Alabama.

Alabama is just such a state, and some think it has plenty to fear:

The Federalist Society, a group composed of conservative and libertarian-leaning members of the legal profession, sponsored a panel last week on prison overcrowding and criminal justice. A member of that panel was Alabama Attorney General Luther Strange.

Strange was a good choice. If the Federalist Society is about judicial reform and returning our legal system to something closer to what the Founding Fathers — or at least those who wrote The Federalist Papers — envisioned, Alabama would be a fine place to start.

In Alabama, we have most of the problems the panel discussed neatly packaged and begging to be addressed. Straighten out Alabama, and other states will be an easy afterthought.
Consider prison overcrowding.

Strange told the group that Alabama incarcerates nearly twice as many criminals as its prisons were designed to hold. If the state does not find a remedy, the federal government is likely to find one on its own.

And that is the last thing either the Federalist Society or Luther Strange want to see happen.
It happened in California, where the U.S. Supreme Court ordered the release of nearly 30,000 inmates. Alabama’s overcrowding is worse.

Thus, it’s clear Alabama must find a way to head off federal intervention.

Add this to the list of conservative arguments in favor of sentencing reform and prison population reduction, coming from no less a conservative authority than The Federalist Society.

Any fearmongering aside, it is a legitimate argument: if we have smart sentencing policies, our prison systems should never get so stuffed that federal intervention becomes necessary to protect the lives and well-being of those incarcerated. The fewer people we unnecessarily send to prison, and the smarter the alternatives we use to keep people from re-offending, the better off our system will be for taxpayers, offenders, and the bottom line.

Taking, and Restoring, the Rights of Felons

2011-11-15T10:21:00.001-05:00

That's the title of this interactive set of articles over at The New York Times today, and anyone who knows what happens when a person is convicted of a crime should find it interesting.

FAMM's work is limited to sentencing, not the so-called "collateral consequences" of a criminal conviction, but we know what a hot issue it is from phone calls with thousands of members both in and outside of prison.

When people are convicted, they lose important civil rights and privileges -- including gun ownership, voting, jury service, and access to school loans and public benefits like food stamps and public housing. Sometimes, these rights and benefits can be lost forever and restored only if the person gets a (very rarely granted) pardon from a governor or the President of the United States.

While there are strong disagreements about restoring felon rights, one thing is certain: the burdens of a criminal record are enormous. It's important that we all remember that the consequences of a conviction are not limited to time in prison or on probation.

NYT: Repeal Mandatory Minimums!

2011-11-14T09:59:00.001-05:00

A superb editorial from The New York Times calls on Congress to repeal mandatory minimum sentencing laws, based on the findings of the U.S. Sentencing Commission's latest report on the topic. Here's the editorial in full:

EDITORIAL
A Blue-Ribbon Indictment
Published: November 13, 2011

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.” That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.

This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus. The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity.

The effects of mandatory minimums on repeat offenders are perhaps the harshest. In the Anti-Drug Abuse Act of 1986, Congress established five-year minimum terms for “serious” traffickers and 10-year minimums for “major” traffickers, as defined by different quantities for different drugs. But those sentences are often lengthened in any number of ways. A prior conviction for any “felony drug offense” punishable by more than a year, including for simple possession, doubles those terms. Two prior convictions raise the presumption to a mandatory life term. At the same time, there can be great disparity in punishment. Committing the same drug crime can lead to a felony conviction in one state but a misdemeanor in another, which can then lead to widely differing federal sentences.

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

Are Mandatory Sentences Ever OK?

2011-11-10T09:44:00.001-05:00

We're amazed how often we see it: people can be convinced that mandatory minimum sentences are bad for nonviolent or drug offense cases, but resolutely insist that mandatory minimums are okay for violent or sex offenses. It seems intuitive, right? If you kill someone, you should get a mandatory minimum? Right?

Not so fast. In Michigan, an excellent and thoughtful series of articles (see the helpful charts and sidebar for links) is discussing this issue in-depth. Michigan has mandatory life without parole sentences for murder. Michigan also has the nation's second highest number of juveniles serving mandatory life without parole sentences for murder. This editorial from the Saginaw News explains the problems with these mandatory sentences:

Some committed truly heinous acts of murder. Others are in prison for life for driving getaway cars while their murderer accomplices copped a plea and decades later are free once again.

Some were sent to prison before they were even old enough to drive.

The American Civil Liberties Union is suing, calling Michigan’s juvenile lifer sentences cruel and unusual punishment, a violation of the U.S. Constitution. The lawsuit seeks parole reviews for juvenile lifers once they reach the age of 21, and then every five years.

There’s no harm in reviewing the cases of such inmates periodically, nor of holding out the possibility that some might get a chance to build a life as a free adult — an opportunity they cut short with their crimes.

That’s more — much more — than their victims ever got. The murdered and those who survive them will never get a second chance.

And truly, some juvenile lifers have earned every day that they will live behind bars for the rest of their lives.

But what about the kid who drove the getaway car? Or the teen who served as an accomplice to murder in any of a number of ways, without actually swinging the knife or pulling the trigger?

Michigan law, written long ago for adults, treats them all the same. Convicted of first-degree murder, accomplices and murderers get mandatory life sentences in prison without the possibility of parole.

It’s a harsh, and frankly just, punishment for adults who presumably are capable of determining the difference between right and wrong; adults who should have considered the consequences of their actions and turned away before committing murder or helping a killer.

Yet, there are good reasons why society doesn’t let juveniles vote in elections, smoke tobacco or sign legal documents until they have reached the age of 18, or to drink alcohol until they are 21.

Teens aren’t considered fully mature or capable of making weighty decisions until they have reached these milestone ages....

Meanwhile, Michigan’s virtual death sentence, life in prison without parole, has been applied to younger and younger criminals since 1988. That was the year laws were changed to charge 15- and 16-year-olds as adults for serious crimes. Before that, 17-year-olds were the only minors charged as adults. In 1997, the bar was lowered further still, allowing 14-year-olds to be charged as adults, and judges were no longer allowed the option of sentencing minors in serious crimes to juvenile detention with release at age 21.

Michigan has taken the judging away from its judges in cases where the wisdom of Solomon is needed most.

Which could be said of all mandatory minimum sentences -- for any kind of crime.

The number of juveniles getting life without parole for murder is apparently dropping nationally, but Michigan numbers remain high. Here's some of the history behind these laws, and -- no surprise -- they were created in the heat of a panic by lawmakers tossing around tough-on-crime slogans like "adult crime, adult time." But violent crime rates are at historic lows, and in many states, prison costs are at an all-time high. It's not too late to rethink our use of mandatory minimum sentences, even for crimes that sound (and perhaps even are) really bad:

[Former Michigan representative Burton] Leland, a Detroit Democrat, thinks he and his colleagues made a mistake [in supporting mandatory life without parole sentences for juveniles]. He points to the growing prison population, which tripled from 1980 to more than 45,000 in 2009, and the Department of Corrections budget, which grew from $193 million in fiscal 1980 to $1.94 billion this year.

Even factoring in inflation, that’s nearly a fourfold increase.

“Now, 25 years later, I think locking youthful offenders up for life is ridiculous,” Leland said. “Life in prison should be reserved for Hitler.”

The U.S. Supreme Court will be deciding this term whether life without parole sentences for juveniles violate the Constitution's ban on cruel and unusual punishment.

Good and Mad Reading for the Weekend

2011-11-09T11:54:00.000-05:00

FAMM is closed tomorrow, in honor of Veteran's Day, but we won't leave you without some juicy reading for the long weekend ahead.

This new, sure-to-madden report from the ACLU is called Banking on Bondage: Private Prisons and Mass Incarceration. And if that title doesn't grab you, you just haven't been studying sentencing long enough.

FAMM doesn't have an official position on the use of private prisons, but it's an extremely important issue, and one that many of our members care about deeply. One thing we do know for sure: we send too many people to prison for too long, and our mandatory sentencing laws allow the wrong people (legislators and prosecutors) to decide the minimum amount of time a person should spend behind bars.

The math is easy: too many people in prison for too long = more prisons, more costs, legislators looking for more ways to save money, including using private prisons. Do private prisons actually save money, though? The report gets into that thorny issue starting on page 19.

There are cheaper, more effective alternatives available than jail cells. Here's one sure-fire way to save money: don't send people to prison if they don't need it, and let judges make that decision.

Conservatives Reforming Criminal Justice

2011-11-08T17:58:00.001-05:00

That's the subject of this thorough and thoroughly worthwhile article from The Crime Report. It offers all kinds of goodies: a summary of how conservatives have gotten involved in criminal justice and sentencing reform so far, a look forward at what might happen if a Republican wins the 2012 presidential election, and a summary of the current Republican presidential candidates' past positions on crime and reform efforts.

For the record, FAMM is a nonpartisan nonprofit, which means we don't support, oppose, or endorse any candidates for political office.

Most of all, though, the article nicely sums up the political fears and pressures around sentencing reform. Here's one point:

Conservatives like [Justice Fellowship president Pat] Nolan fear high-profile bureaucratic mistakes, for example, that could undermine their efforts.

“It’s our nightmare that somebody is released and does something horrible,” he says. “Any politician who supported something that took 6 months off of a sentence is subject to second guessing.”

“I think there’s a good answer to that,” Nolan continued, “which is that you can’t keep everybody locked up forever.... But that’s a sophisticated argument, and it’s easy to attack that person. Our fear is that as a result, all of our good bipartisan work could go up in smoke.”

Ahhh, the old Willie Horton fear -- let someone out, they reoffend, and everyone who supported reform goes the way of Michael Dukakis. But there are good examples of reforms that have produced low recidivism rates while increasing fairness in and respect for the criminal justice system. Take 2007's retroactive crack guideline amendment changes, which have benefited over 16,000 people. A study by the U.S. Sentencing Commission showed that crack offenders who benefited from the reforms did not re-offend at a higher rate than those who were released without benefiting. About 30% of both groups re-offended within two years of release (some states would kill for that kind of rate!). Not bad, and most certainly not the end of the world.

Pat Nolan is right: we can't keep everyone in prison forever, and we can't let fear of the unknowable and uncontrollable keep us from a better, smarter, fairer sentencing system. We can build that system one reform at a time, ensuring that a person’s sentence is appropriate given their offense and their role in it. That means that dangerous prisoners serve time in prisons, while others who aren't a real risk to public safety get sentences that fit their needs and hold them accountable at a lower cost than prison cells. It will require bipartisan support. And it will require people like FAMM supporters getting involved and telling their legislators that we demand better.

Latest Release: Lindsay Lohan

2011-11-07T15:39:00.001-05:00

Mario Anzuoni - Reuters

Federal prisoners benefiting from the retroactive changes to crack sentencing guidelines weren't the only people who came home from prison this weekend: so did Lindsay Lohan, SentenceSpeak's favorite celeb to follow. Her sentence for her latest probation violation may have been 30 days, but Lohan spent less than five hours in the Los Angeles County jail.

The jail literally couldn't hold her ... because of overcrowding.

This article from Stateline.org focuses on two sources of California jail overcrowding: most people can't pay bail to get out, and California has decided to start sending more people in, to alleviate prison overcrowding (they're calling this plan "realignment").

California is already struggling under a U.S. Supreme Court decision that described conditions in its state prisons as amounting to cruel and unusual punishment. Now counties are being required to deal with the state’s realignment program, which is shifting state prisoners convicted of low-level offenses to county supervision. ...

The pressures on the local criminal justice system will continue to mount — L.A. County expects that in the first year of the realignment program, it will supervise an additional 9,000 offenders released from state prisons. In years two and three of the program, the county expects to supervise about 15,000 additional state prison inmates.

Can California really "realign" its way out of its prison crisis? Is that a sustainable or long-term fix? Perhaps, as another solution, California should try scaling back its mandatory minimum sentencing laws, particularly the notorious "three strikes" law that is contributing to a bigger, aging, even more expensive prison population.

-- Stowe

We Haven't Forgotten

2011-11-03T12:36:00.000-04:00

This new article from AFRO tells the story of FAMM members Karen, Lawrence, and Lamont Garrison and their long odyssey through the justice system's skewed approach to crack cocaine sentencing. Both Lawrence and Lamont benefited from the 2007 retroactive crack guideline changes and were released before the most recent set of retroactive changes went into effect on November 1, 2011.

Impacted family member Karen Garrison said once the Fair Sentencing Act was passed it should have made sentences retroactive. "They did it for marijuana. Why can’t it be done in this case?"

Her sons, Lawrence Garrison and his twin brother, Lamont, were convicted on cocaine conspiracy that changed to cocaine base which gave them more time. Howard University graduates, the twins represented themselves pro se after the 2007 decision came down and successfully reduced their sentences.

Lawrence spent 11 years and eight months in prison. His sentence was reduced by 36 months with five years of supervised release. He works several jobs; a real estate agent, car salesman and health care coding specialist. “I came home in the middle of a recession. I was determined to make it. With the help of my friends from Howard, good things will continue to happen.”

On the other hand, Lamont, a political science major, served 13 years and five months. His sentence was reduced by 46 months. He is currently living in a halfway house waiting to be released. His family hopes things go well.

“Both of them wanted to be lawyers but not anymore. They’ve had enough of the judicial system,” said their mother. “African Americans always get the blunt end of the stick. D.C. didn’t do anything to assist impacted families.”

These honest sentiments reflect a difficult truth: the crack reforms weren't perfect. The changes to the crack mandatory minimum sentences haven't been made retroactive (see H.R. 2316 for a bill that would fix this). The 18-to-one ratio still isn't an equalized, much fairer one-to-one ratio (see H.R. 2242 for a bill that would fix this). And then there are all the other drug offenders -- and other types of offenders, too -- serving mandatory minimum sentences that are inherently unjust because a judge never got to decide on the right sentence for each individual defendant.

We haven't forgotten that these injustices are still out there, and that's why FAMM's doors are still open, and why we're still working.

You can help: click here to write to your federal lawmakers and urge them to finish what they started and make all the Fair Sentencing Act's reforms retroactive today!

California's Three Strikes: Can It Be Changed?

2011-11-03T10:25:00.001-04:00

The San Jose Mercury News has this interesting article about a new proposal to scale back California's notorious mandatory minimum "three strikes" law, which has helped send the state into an unprecedented prison spending crisis.

Here's the skinny:

An effort to limit California's tough Three Strikes Law is gaining momentum, with a proposed ballot initiative that would reserve the toughest penalty -- 25 years to life -- for the baddest of the bad, including murderers, rapists and child molesters.

The initiative, now under state legal review, was carefully crafted by a group of Stanford University law professors and stops far short of the extensive changes proposed under a previous reform measure that narrowly failed in 2004.

The Legislature and voters passed the Three Strikes Law in 1994 after several high-profile murders committed by ex-felons sparked public outrage, including the kidnapping from her Petaluma home and strangling of 12-year-old Polly Klaas. Since then, the courts have sent more than 80,000 "second-strikers" and 7,500 "third-strikers" to state prison, according to the state Legislative Analyst's Office. Though third-strikers make up just 6 percent of the prison population, they are responsible for a disproportionate share of the state's spiraling prison health care costs -- at least $100 million annually -- as they age and need more medical attention, according to the California auditor.

The previous measure, Proposition 66, sought to restrict felonies that trigger a "third" strike to violent or serious crimes. Under the existing law, life sentences have been issued for such relatively minor crimes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom.

In contrast, the new initiative allows certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any felony, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.

Do you think the odds are in favor of California changing its three strikes law? Leave your thoughts in a comment.

After 20 Years, It's Time Congress Learned

2011-11-02T14:20:00.000-04:00

FAMM's founder and president, Julie Stewart, started FAMM back in 1991, the first year that the U.S. Sentencing Commission released a report studying the impact of mandatory minimums. So, 20 years later, what does Julie think of the Commission's new report on mandatory minimum sentences?

This opinion editorial over at the Huffington Post has her response. To sum it up:

Twenty years ago, the U.S. Sentencing Commission concluded that mandatory minimums were not the efficient, anti-crime tool their proponents had suggested. Over the past two decades, tens of thousands of families across the country have learned the hard way, watching fathers, brothers, and other loved ones sentenced to exceedingly harsh prison terms. The Sentencing Commission is back with a new report that echoes many of its original, strong criticisms. Maybe this time Congress will learn something -- and will move to repeal these unjust, ineffective laws.

Stories of Freedom

2011-11-02T14:05:00.000-04:00

With the retroactive crack guideline changes now in effect for the 12,000 federal prisoners who could potentially benefit from them, we're seeing a lot of news stories about this big win.

Reuters put out this story, describing how 99 New Yorkers could be released immediately. FAMM's Mary Price stood up for those getting out, reminding people of how unfair crack laws have always been:

"There's absolutely no reason in justice or common sense to allow these people whose stories we told, whose experiences we wrung our hands over, whose cases we use as an examples, to remain in prison," said Mary Price, vice-president and general counsel of Families Against Mandatory Minimums, a legal advocacy group that opposes mandatory minimum sentences.

This AP piece over at ABC News tells some touching stories of people coming home:

Antwain Black was facing a few more years in Leavenworth for dealing crack. But on Tuesday, he returned home to Illinois, a free man.

Black, 36, was among the first of potentially thousands of inmates who are being released early from federal prison because of an easing of the harsh penalties for crack that were enacted in the 1980s, when the drug was a terrifying new phenomenon in America's cities.

"I did more than enough time," Black said outside his family's Springfield, Ill., home, where family and friends had gathered to celebrate over dinner. "I feel like I can win this time. I'm a better man today than I was then."

This article from The New York Times shows how everyone, including the Bureau of Prisons, is putting in extra hours to ensure that no one spends more time in prison than necessary, but also notes that the law is still not perfectly just:

Chris Burke, a spokesman for the federal Bureau of Prisons, said, “I would say that we’re having a busy day.” With more than 1,800 prisoners eligible for immediate release, prisons have been checking records to ensure that none have complicating factors like concurrent sentences or pending charges, he said. At the bureau’s sentence computation center in Grand Prairie, Tex., he said, employees pulled an all-nighter to ensure that all of the release paperwork was processed in time. ...

Others say the new rule does not reduce the disparity enough. Douglas A. Berman, an expert in sentencing at Ohio State University’s law school, said, “The celebration of the new reforms has to be tempered by the reality that it’s, at the most, half a loaf.”

[FAMM member] Lawrence Garrison, who was able to shave 36 months off his prison sentence during a previous disparity reduction and was released in 2009, said, “It’s a great step,” but added: “The disparity in sentencing is still there. The racial disparity is still there.”

If you have a loved one who may be eligible for the crack guideline reduction, make sure to call the federal public defender's office in the district where your loved one was convicted. Stay in touch with your lawyers during this process -- remember, FAMM cannot tell you whether your loved one is eligible, recalculate your loved one's sentence, or help your loved one file a motion for a sentence reduction.

Julie Celebrates Crack Retroactivity on CNN!

2011-11-02T12:02:00.003-04:00

FAMM President Julie Stewart appeared on The Situation Room with Wolf Blitzer yesterday, to applaud the new retroactive crack guideline changes that are now in effect. View the video here.

New Commission Report on Mandatory Minimums!

2011-11-01T16:38:00.003-04:00

Back in 1991, the U.S. Sentencing Commission released its first in-depth report on federal mandatory minimum sentencing laws.

After 20 years, the Commission released its second, yesterday.

The new 650-page report is a monster of a read, but there are highlights and plenty of fascinating statistics in this 25-page executive summary.

The report says what FAMM has been saying for years: mandatory minimum sentences are too harsh, are not applied fairly or evenly, fill our prisons with small fish, and have contributed to overcrowded prisons and a budget crisis. In the words of FAMM president Julie Stewart, mandatory minimums are an expensive failure. Read FAMM's press release here.

Unfortunately, the Commission's report doesn't repudiate all mandatory minimum sentences. The Commission does ask Congress not to pass new mandatory sentences unless they are narrowly tailored, not too harsh, and can be applied consistently. The problem is that those three preconditions are not true of mandatory minimum sentences; by definition, mandatory minimums are too broad, excessive, and begging for inconsistent application.

The Commission does urge Congress to reform some aspects of mandatory minimum sentencing laws. Many of the suggestions are reforms FAMM has been seeking for years, like expanding the "safety valve" exception for drug offenders (and other types of offenders, too, we might add) and getting rid of the requirement that mandatory sentences for gun possession be stacked on top of each other (as if one of them wasn't long enough!).

Reports like this one are vital to making sentencing reform happen. Twenty-five years ago, Congress passed mandatory drug sentences with little study and even less data. Good data and research should prevent bad policy. We hope Congress will use the Commission's new report to stop proposals for more mandatory sentences from becoming law, and to get rid of the ones we have now.

Twenty-five years of folly and waste are enough, don't you think?

Retroactive Crack Guidelines In Effect NOW!

2011-11-01T09:52:00.000-04:00

Today's the day we've all been waiting for -- the U.S. Sentencing Commission's retroactive changes to crack cocaine sentencing guidelines are now in effect! Up to 12,000 federal prisoners serving unfair and excessive crack cocaine sentences are now eligible for sentence reductions averaging 36 months (actual reductions could be longer or shorter, depending on the facts of the person's case). No one gets out automatically -- they must request a sentence reduction from the court. Judges will review requests individually and can deny reductions to people who are too dangerous to be released.

Here are FAMM's thoughts on this historic day, and here are answers to frequently asked questions about what the new amendments do and how prisoners can seek their benefit.

Many are being released today or will be soon, as this CBS/AP article explains:

It's not clear how many individuals will go free on the first day inmates are eligible.

Chris Burke, a spokesman for the Federal Bureau of Prisons, said Monday that officials had already received hundreds of orders for early release from judges and the number has been going up daily, "if not hourly." Prison officials have been given a grace period of several days to release certain inmates.

Those releases and others are the result of months of work by prosecutors, public defenders and judges across the country. Some public defender offices reviewed hundreds of files of potentially affected inmates. ...

In San Antonio, Texas, the federal public defender's office had about 15 to 20 immediate release cases according to assistant federal public defender Kurt May. In St. Louis, public defender Lee Lawless said his office reviewed a list of 400 people who might be affected and ultimately submitted between 30 and 50 petitions asking for inmates' immediate release. In the eastern district of Virginia, which has the highest number of affected inmates anywhere in the country, public defender Michael Nachmanoff said that by Monday evening judges had signed off on the immediate release of approximately 75 people for Tuesday.

Jim Wade, the federal public defender for Harrisburg, Pa., said he canceled vacation for his 10 attorneys until the first wave of releases is over.

"We're trying to make sure you don't serve one more day than necessary. That's the goal," Wade said.

If you have a loved one in federal prison for a crack offense, contact a lawyer or call the Federal Public Defenders' office in the district where your loved one was sentenced to find out whether they might benefit and how they can get legal help with requesting a sentence reduction.

Congratulations to the prisoners and families who are reuniting today!

NYT Editorial Supports Webb Commission Bill

2011-10-31T10:06:00.000-04:00

Last week was a bit of a slow week in sentencing news, but a New York Times editorial from Saturday starts this week with a bang. The Times comes out in support of Senator Jim Webb's (D-VA) bill to create a National Criminal Justice Commission to review our country's expensive and counterproductive addiction to prisons. So far, the bill, S. 306, hasn't made it out of the U.S. Senate, but FAMM is working to change that. Here's the full editorial:

EDITORIAL
Falling Crime, Teeming Prisons
Published: October 29, 2011, The New York Times

Senator Jim Webb, Democrat of Virginia, has a smart proposal to create a bipartisan commission to review the nation’s troubled criminal justice system and offer recommendations for reform. The National Criminal Justice Commission Act would be a valuable first step toward reducing crime as well as punishment. Unfortunately, Senate Republicans derailed the bill recently, with some falsely claiming that it would encroach on states’ rights.

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.

While crime has gone down notably, just 10 to 25 percent of the decline can be credited to the increase in imprisonment. The rest is from the waning of the crack epidemic, the aging of the baby boomers and other factors.

Even as the prison population has grown, less than half of the inmates are serving time for violent crimes. Far too often, prison has become a warehouse for people with drug or alcohol addiction. More than half of the population has some form of mental illness. Without proper addiction and psychiatric treatment, many end up back in prison soon after their release.

The incarceration rate has had a devastating effect on minority communities. African-Americans, who make up one-eighth of the population, now make up about 40 percent of those in prison. African-American men have a one-in-three chance of spending a year or more in prison. The trend affects whole communities, depressing earnings and increasing recidivism.

There are, however, ways to end this cycle of incarceration. This could be done by reducing sentences for nonviolent offenses, ending mandatory minimum sentences and cleaning up drug markets nationally. Reasonable senators should support the bipartisan commission that Senator Webb is calling for, which would cost only $5 million and could help bring about compelling reforms.

Crack Retroactivity Right Around the Corner

2011-10-24T16:56:00.001-04:00

November 1, 2011 is a week away -- and that date will be historic, because it is when 12,000 federal crack cocaine offenders become eligible to seek reduced sentences based on new, retroactive changes to the federal sentencing guidelines.

This article from Georgia's Columbus Ledger-Enquirer tells the story and provides the background, in case you missed it (which was probably impossible, because FAMM played such a key role in the crack law reforms). The article quotes FAMM President Julie Stewart several times, and it tells the story of one federal prisoner hoping for a reduced sentence after November 1.

No one is guaranteed a sentence reduction -- prisoners must file motions asking for one, and courts do not have to grant them -- but we are thrilled that the big day is only one week away. Crack cocaine sentences based on the 100-to-1 disparity have always been unfair and created horrific racial disparities. These retroactive guideline changes bring us one step closer to the fair and individualized sentencing system FAMM's been fighting for.

If you have a loved one who is a federal offender serving time for a crack cocaine offense and do not know if he or she might be eligible for a sentence reduction, talk to a lawyer or contact the federal public defenders in the district where your loved one was convicted.

Good and Mad Reading for the Weekend

2011-10-21T11:26:00.005-04:00

This brainy report from New York University's Institute for Policy Integrity and this fire-up-the-crowd analysis of that report by The Atlantic qualify for our Good and Mad Reading of the Week for one simple reason: I, for one, am sick to death of politicians thinking they have to be tough on crime. I may want to stay safe, but I'm not made of money, and neither are the other millions of taxpayers who should be sick to death of paying for the wrong people to get the wrong punishments.

So, how do we convince lawmakers to get smart on crime? The report, entitled Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy, says we have to prove it using numbers. Want to downsize our overstuffed, uber-expensive prisons? Want to get back to an incarceration rate that isn't, say, the highest in the entire world? We have to prove that changing sentencing and prison policies will save money, reduce recidivism, and keep us safe.

Problem: proving it costs money, too. Research, data, and cost-benefit analyses don't just magically appear -- someone has to do the work, and unless it's a squad of calculator-toting nuns with economics degrees and time on their hands, that someone won't be doing it for free.

So, let's say we find some of those nuns, or we convince lawmakers to pay for the cost-benefit analysis we need. Then, we should get the proof we need to get lawmakers to vote for all kinds of sentence-lowering and public-safety-increasing policies that boost rehabilitation while emptying prisons. Right?

We'd still have to get legislators over the tough-on-crime hump. As described in The Atlantic, that hump has been around for a long time, but enough is enough. We just can't afford having our lawmakers camp out there anymore:

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime." It's been nearly twice that long since the so-called "silent majority" took back the streets. Violent crime is down. But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice. ...

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them. Of course, many criminals deserve to be there. But many do not. ...

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice. It's easier to be "tough on crime" when you can pay the price, right? But now we can't. And the collective poverty within our criminal justice systems isn't going to ease on its own. So bring in the economists! And let the stale, old law-and-order crowd step aside.

Have a good weekend, all.

-- Stowe

NCJCA Falls 3 Votes Short

2011-10-21T10:05:00.002-04:00

Yesterday, we told you that the U.S. Senate was voting on whether to include a National Criminal Justice Commission Act (NCJCA) in the appropriations bill. The Senate voted 57-43 in favor of including the NCJCA as part of the FY 2012 spending bill. Unfortunately, that is three votes short of the 60 votes we needed.

Thank you to all FAMM members who called and wrote their U.S. Senators and who shared our e-alerts with their friends and family to show support for the NCJCA.

This doesn't mean we're finished. The NCJCA is still alive, and FAMM will continue to work to get it passed and signed into law. Keep checking our website, www.famm.org, for updates on our progress!

Big News: Commission up for Vote in Senate!

2011-10-20T11:08:00.001-04:00

The Senate will vote at 12:00 p.m. EST TODAY on whether to include the National Criminal Justice Commission (which was proposed in S. 306 by Senator Jim Webb of Virginia) as part of the criminal justice spending (appropriations) bill. With more than 2.3 million behind bars, we can’t afford not to have this Commission.

FAMM believes that any study of the criminal justice system must include a review and repudiation of mandatory minimum sentences. That is why FAMM supports the creation of a National Criminal Justice Commission.

The National Criminal Justice Commission Act amendment is Amendment Number 750 to H.R. 2112. The provision would create a National Criminal Justice Commission to review the criminal justice system and recommend consensus-based reform. The proposed commission would review the criminal justice system, identify programs and policies that promote public safety, and urge reform of policies and practices that aren’t working.

FAMM will let you know how the vote goes at our website, www.famm.org, and here on the blog.

Boston Globe: No Mandatory Sentences for Nonviolent Drug Offenders

2011-10-19T11:09:00.000-04:00

This balanced editorial from the Boston Globe calls on state lawmakers to focus the criminal justice system's scarce resources and prison bed space on violent offenders and eliminate -- you got it, eliminate! -- mandatory sentences for nonviolent drug offenders. The full editorial is below, but FAMM's Massachusetts members should take a couple of minutes and write to their state senators, urging them to include mandatory minimum reforms in bills they are considering this session. Click here to send that letter now!

October 19, 2011

EDITORIAL

Curb parole for violent crime, but rethink drug sentencing

THE STATE Senate is primed to pass legislation that would tighten parole eligibility for repeat violent offenders. But lawmakers need to be both tough and smart when considering a crime bill. And that will require an act of political courage - the elimination of the state’s mandatory minimum drug sentences for nonviolent offenders, thereby freeing up prison space for violent criminals.

The public is outraged when a paroled offender commits a dreadful crime, such as the December murder of Woburn police officer John Maguire. It’s not just an emotional response. More than a third of the most serious offenders paroled in Massachusetts over the past five years went back to prison for committing new crimes or violating the terms of their release.

Senate leaders wisely want to prohibit parole eligibility for criminals convicted of three violent felonies as well as those sentenced to more than one life term. Currently, convicted felons are eligible for parole after serving half of their sentences, with the exception of first degree murder. The bill would be even stronger if it established mandatory post-release supervision by the Parole Board for inmates who serve their full sentences.

The overarching goal, however, should be for lawmakers to create a stronger, fairer, and more economical criminal justice system. And that will require a balanced approach that cracks down on violent offenders while taking a fresh look at nonviolent drug offenders who languish for 10 or 15 years in prison at taxpayer expense. A place to start is with Governor Patrick’s sentencing reform bill that seeks to eliminate mandatory minimum sentences for drug possession and trafficking crimes except those involving firearms. Prisoners currently serving time for nonviolent drug crimes would, under the governor’s bill, be eligible for parole after serving half of their maximum terms.

The elimination of mandatory minimums does not amount to leniency. Judges would be free to give maximum prison terms to the most egregious offenders, and those who present the greatest risk to society. But it would ease the reflexive application of long sentences when judges do not believe they are warranted.

In the past, the Senate has supported work-release eligibility for drug criminals serving mandatory minimum sentences and other proposals that emphasize rehabilitation of nonviolent inmates. But the current Senate bill ignores the growing and costly problem of mandatory minimum sentences. It misses both the opportunity for inmates to recover their lives and for taxpayers to recover the roughly $7,500 difference between keeping an inmate in prison or supervising him on the outside.

Why are women the fastest-growing prison population?

2011-10-19T11:00:00.001-04:00

That question is asked and answered in this piece available over at the San Francisco Chronicle. The short answer: mandatory minimum sentences and the War on Drugs.

In the last 25 years, women have been the fastest growing prison population in the United States and in California. Between the ‘70s and the 2000s, the number of female inmates in state prisons serving a sentence of over a year has grown by 757%.

Between 1985 and 2007, the number of women in prison increased by nearly double the rate of men.

The article features poignant and dramatic interviews with some of those involved in producing a new book on female prisoners, Inside This Place, Not of It: Narratives from Women's Prisons. One of the book's editors, Robin Levi, had these telling comments about her many visits to see women in prisons:

I think the most important thing to realize is that people in prison, men and women, are not a kind of "other" that need to terrify you. I think every time I leave the prison from visiting someone, I have this overwhelming sensation of, “There but for the grace of good fortune and economic security, go I.”

The people in prison are just people. They aren't terrifying. The majority of them are not dangerous.

FAMM agrees, thanks to thousands of phone calls, e-mails, and letters from normal, everyday women -- and men -- serving long, mandatory prison sentences. Our Profiles of Injustice tell many stories of women caught up in drug offenses because of abuse, addiction, mental health issues, romantic attachments, economic hardship, or all of the above. Try the stories of Iveth Vega, Darlene Eckles, Leslie Jaramillo, Tammi Bloom, Guadalupe Zuniga, and Dana Bowerman for starters.

Airing Tonight on CNBC

2011-10-18T14:47:00.002-04:00

Tonight CNBC will air a new show, "Billions Behind Bars: Inside America's Prison Industry," which looks sure to spark some good post-dinner conversation and debate.

Check out showtimes and a summary right here.

New York's Success Story

2011-10-18T14:41:00.001-04:00

Reforming and abolishing mandatory minimum drug sentencing laws lowers prison populations, saves taxpayers money, helps offenders get the rehabilitation they need, and doesn't increase crime.

Just ask New York.

That's the gist of this thorough and thoroughly engaging article from the Poughkeepsie Journal that came out this Sunday. It's full of good news for a state that launched the tough-on-crime mandatory minimum movement in the 1970s and is now seeing the fruits of scaling back those draconian laws, creating sensible alternatives to prison, and getting smart on crime:

Nearly 40 years after tough new drug laws led to an explosion in prison populations, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.

The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 16,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs. Overall, the prison population declined 22 percent. ...

Similarly, the rolls of city jails dropped 16 percent since 2000, while county lockups statewide had a 15 percent hike, statistics show.

The decline in drug convicts means more of the type of inmate for which penitentiaries were constructed: violent offenders.

Today, the No. 1 most serious crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000.

In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced. That's now down to about 3,000.

"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner. "Was prison the best alternative for drug abusers? Clearly it was not."

That's a message the whole country is starting to tune into, and the federal government shouldn't be the last to hop on this train.

Canadians Should Argue Against Mandatory Minimums in the U.S.!

2011-10-18T14:29:00.001-04:00

If all Canadians are even remotely as clear, convincing, and critical as this superb column by the Ottawa Citizen's Dan Gardner, we should start busing our northern neighbors down to Washington to argue against mandatory minimum sentences here in the States. This is the best indictment of these irrational, misapplied laws that I've read in ages.

Here's the heart of this goody, but read the whole thing:

[Canada's recently-proposed mandatory minimum] bill includes a mandatory minimum sentence of six months for growing more than five and fewer than 201 marijuana plants with the intent of trafficking. There's also a mandatory minimum sentence of nine months for anyone who grows between one and 201 marijuana plants for the purposes of trafficking when certain factors are present - among them, that "the person used real property that belongs to a third party in committing the offence."

Justice minister Rob Nicholson says these changes don't target recreational pot smokers. No, the government is targeting "traffickers."

And we all know who traffickers are. They're bikers, gangsters, and depraved people who lurk outside schoolyards. Or so the minister suggests in every interview.

But what Nicholson never mentions is the legal definition of "trafficking." It includes selling marijuana for profit, as anyone would expect. But profit isn't essential to the definition. Simply giving marijuana to someone is "trafficking." So is offering to give them marijuana.

So anyone who passes a joint to a friend is a "trafficker." In fact, anyone who offers a joint to a friend is a "trafficker," even if the friend declines the offer. (There are a lot of "traffickers" in Canada. Some of them are members of Parliament.)

Now look at that first mandatory minimum sentence again: It means that anyone who grows six marijuana plants with the intention of sharing even a single joint with a friend will be guilty of an offence punishable with a mandatory minimum sentence of six months in jail.

And remember the phrase "real property that belongs to a third party"? That's what a rented apartment is. Imagine a university student living in a rented apartment with her boyfriend, suggests University of Toronto criminologist Tony Doob. She grows a single marijuana plant. She rolls a joint for her and her boyfriend. And just like that she's a "trafficker" subject to a mandatory minimum sentence of nine months in jail.

Are these outcomes simple, clear, and predictable? Hardly. They're shocking as hell. But mandatory minimums have a nasty tendency to do that.

Are these outcomes just fear-mongering? No, Gardner says. When legislators pass mandatory minimums, they are trusting prosecutors not to charge the university student and the other unlikely candidates mentioned above. Is that trust in prosecutors merited?

Take a look at some of our Profiles of Injustice, Canadians, and you tell us.

Here's Gardner's conclusion on the matter:

And notice how strange it is for the government to rely on the discretion of prosecutors to keep their mandatory minimum sentences from producing injustices. After all, the whole point of mandatory minimums is to do away with discretion. That's their appeal. "If you do X, the minimum punishment you will receive is Y." No ambiguity or uncertainty. It's all perfectly clear and predictable.

But mandatory minimums don't actually do away with discretion.

They merely transfer it from judges, by restricting their ability to choose the sentence, to prosecutors, who choose the charge. The system is still ambiguous, uncertain, and unpredictable. It's just ambiguous, uncertain, and unpredictable in a different way.

Let's hope Canada's lawmakers listen to Gardner's arguments. In the U.S.'s experience, they are all too true.

-- Stowe

A New Epidemic: Mass Incarceration

2011-10-18T10:58:00.002-04:00

Michelle Alexander provides thoughtful review and analysis of two new books on mass incarceration in this article in the Washington Post today.

The books are:

A Plague of Prisons, by Ernest Drucker
The Collapse of American Criminal Justice, by William J. Stuntz

Here's the gist of A Plague of Prisons:

Ernest Drucker, an internationally recognized public health scholar, professor and physician, contends that mass incarceration ought to be understood as a contagious disease, an epidemic of gargantuan proportions. With voluminous data and meticulous analysis, he persuasively demonstrates in his provocative new book, “A Plague of Prisons,” that the unprecedented surge in incarceration in recent decades is a social catastrophe on the scale of the worst global epidemics, and that modes of analysis employed by epidemiologists to combat plagues and similar public health crises are remarkably useful when assessing the origins, harm and potential cures for what he calls our “plague of imprisonment.” ...

Drucker traces the moment of outbreak to the war on drugs. Beginning with the Rockefeller drug laws adopted in New York state in the 1970s, followed by President Ronald Reagan’s declaration of war in 1982, our nation set out to incarcerate millions of Americans for relatively minor crimes and drug offenses. Such arrests go a long way toward explaining how the “infection” has spread. Arrests and convictions for drug offenses, Drucker writes, “are the most important agent of transmission that creates new cases of incarceration.”

Whether the metaphor holds up or not, comparing mass incarceration to an outbreak of infectious disease is a new and interesting way to look at the problem.

Drucker’s argument leaves a nagging question unanswered, however: Why is this happening? ... William J. Stuntz thinks he has an answer. A Harvard Law professor who died earlier this year, Stuntz argues in “The Collapse of American Criminal Justice” that the stunning surge in imprisonment of poor people of color can be explained by two factors: a dramatic spike in crime in the 1950s and ’60s, coupled with profound changes in how our democracy is structured. Urban residents, he observes, once had far more control over police and prosecutors and could exert more influence in the jury box. When those who bear the costs of both crime and punishment exercise significant power over those who enforce the law, a more balanced and empathetic approach to crime is the predictable result.

An interesting theory -- in essence, the reason this sickness has spread is because we -- voters -- have let it. We have stopped holding prosecutors, police, and legislators accountable in the courthouse and at the ballot box. Legislators who pass tough sentencing laws stay in office partly because we let them.

Sounds like two interesting books to add to the reading list.

The Many Problems with Florida's Pill Laws

2011-10-17T16:09:00.001-04:00

This excellent article from the Orlando Sentinel highlights the many, many problems with Florida's draconian mandatory minimum sentencing laws.

For starters, well, they're draconian. Try 15 years for 30 pills. A mere 4 grams of prescription drugs will garner a 3-year mandatory minimum term in prison.

Second, Florida's mandatory minimums are particularly good at scooping up addicts and others who need treatment, not prison. Todd Hannigan, a FAMM member, is one example:

Todd Hannigan wanted to end his life. He ended up with a 15-year-prison sentence instead.

Two years ago, Hannigan, now 43, took a bottle of Natural Light and 31 of his mother's painkillers to Orlando's Cherry Tree Park, where a police officer caught him drinking the beer at a picnic table.

Because of the number of pills in his possession, Hannigan was arrested under Florida's prescription-drug-trafficking law — which carries a range of mandatory-minimum sentences depending on the weight of the narcotic.

In Hannigan's case, the total weight of the hydrocodone pills was just more than 22 grams — enough to give him a 15-year sentence, even though he wasn't actually selling or distributing the drug. ...

Third, the way the pills are weighed means that other non-controlled ingredients get counted toward the drug weight that triggers the mandatory sentence. As in Hannigan's case:

... But in reality, court records show, only a minuscule amount of that was the narcotic hydrocodone: just 0.23 gram. The overwhelming majority of each pill was made up of acetaminophen and inactive ingredients.

Fourth, mandatory sentences steal judges' power to do what taxpayers are paying them to: actually judge. Here's the reaction of Orange County Circuit Judge Tim Shea to sentences like Hannigan's:

"The Legislature has, in its infinite wisdom, decided to transfer a significant amount, which was once judicial discretion, to the prosecutorial arm of this state. There's nothing I can do about that," Shea said. "Under this set of circumstances, this court does nothing more than perform an administerial function. I sign the papers. I'm on autopilot. So I would suggest you take it up with the Legislature."

One Florida legislator, at least, is taking up the issue:

Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who has tried to overhaul Florida's prescription-drug laws, said the prescription-drug epidemic and surge in arrests are having a "huge" impact on the system.

Bogdanoff sponsored legislation earlier this year that would have — among other things — removed mandatory-minimum sentences for prescription-drug trafficking. The legislation also would have defined the weight as that of the controlled substance, and not other substances in the pill makeup. That bill, introduced in February, died several months later and was withdrawn. She plans to renew those efforts.

"We're incarcerating drug addicts," Bogdanoff said. "We have to treat the drug addicts. In the long run, they don't belong in jail."

FAMM's Florida project is fighting to fix these irrational, problematic, faulty laws. Floridians deserve better laws and better justice than this.

"This state locks too many people up for too long"

2011-10-12T17:16:00.001-04:00

We haven't yet covered this weekend's excellent Associated Press article on Florida's mandatory sentences, which shares the story of a FAMM member and quotes our Florida Project Director, Greg Newburn. The article gives a thorough and maddening explanation of how Florida's mandatory sentencing laws unjustly lock up low-level drug offenders for years:

Jeffrey Pitts is serving a five-year prison sentence for drug trafficking involving only eight to 27 Lortab tablets - prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers
His mother, nurse Paula Pitts, said he's doing time essentially for what she can give a patient during a 12-hour shift at the Panama City hospital where she works.

"Lortabs are what we use for lesser pain," she said. "Every time I medicate a patient I think of my son."

Don't think Pitts' sentence is an aberration - the mandatory minimum sentence for his conviction was three years. It's the kind of harsh punishment that has even many conservative Republicans, including former Gov. Jeb Bush, calling for changes in Florida's tough narcotics laws that are helping fill state prisons with nonviolent drug users and costing the state tens of millions of dollars annually. ...

Jeffrey Pitts' situation is a case study in the severity of Florida's drug laws, which were passed in reaction to a violent "cocaine war" that gripped South Florida in the 1970s, compared to other states.

The most Pitts would have faced for the same amount of Lortabs in Texas, considered somewhere in the middle among the states in severity of drug penalties, would have been a year in jail and $400 fine. As a first-time offender, though, he likely would have been diverted to a drug court and substance abuse treatment instead of jail, said Vikrant Reddy, policy advisory for the Right on Crime advocacy group based in Austin, Texas.

"That's a glaring example of why the minimum mandatories are so nefarious," Reddy said. "It's an extraordinary law in its breadth. It transcends left-right politics." ...

"A lot of people don't understand that a trafficker is not just Pablo Escobar bringing in a mountain of cocaine in a submarine down in Miami," said Greg Newburn, the organization's Gainesville-based Florida project director. "It's a drug user who has no intent to distribute, but just happens to possess too much of a given substance."

A brief but compelling editorial from The Gainesville Sun responded to the AP article and pinpointed Florida's main problem: "This state locks too many people up for too long." Here's the Sun's editorial response, in its entirety:

Editorial: "The Wrong Reform"

If Gov. Rick Scott and Florida legislative leaders would get over their obsession with privatizing prisons, perhaps they might focus on the real cause of Florida's runaway corrections spending.

This state locks too many people up for too long.

A succession of “get tough on crime” mandatory minimum sentencing laws are primarily responsible for a state incarceration rate that is 26 percent higher than the national average.

An Associated Press report this weekend cited the case of a man serving a mandatory five-year prison sentence for possession of a handful of Lortab tablets, “prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers.”

“Florida's prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state's population increased just under three times,” the AP reported. “Florida also has done away with parole and requires inmates to serve a minimum of 85 percent of their sentences, which have kept inmates behind bars longer.”

Thus, Florida's corrections spending continues to escalate even as crime rates decline.

Citing data from “Right on Crime,” a prison reform group that advocates doing away with mandatory minimum sentences and relying more on drug courts and substance abuse treatment for offenders, the AP report continued, “If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion.”

Privatizing prisons simply injects a profit motive into what Alison DeFoor, vice chair of the Center for Smart Justice, in Tallahassee, already calls Florida's “prison-industrial complex.”

Real corrections reform would involve locking fewer people up, not creating new profit opportunities for the private sector at taxpayers' expense.

The Hardest Part of Being a Judge

2011-10-11T14:51:00.000-04:00

I've heard many judges -- federal and state -- say it: "The hardest part of being a judge is sentencing."

That sentiment is echoed in this lengthy but worthwhile article in The New York Times, providing in-depth coverage of some of the sentencing decisions of Judge Denny Chin, now a Second Circuit federal appeals court judge. Judge Chin is best known, perhaps, for sentencing Bernie Madoff to 150 years in prison, but this article covers some less extraordinary offenses -- bank robbery, drug offenses, perjury.

Interestingly, the reporter follows up with several people who served sentences imposed by Judge Chin years ago, and asks them what they think of their punishments today. The comments of a former lawyer who was convicted of a drug offense and got 87 months in federal prison particularly struck me:

Mr. [Pat V.] Stiso, the former lawyer, spoke at his mother’s home in New Rochelle, N.Y. He recalled being shocked when Judge Chin imposed the top of the recommended range. “My knees buckled,” he said.

But today, Mr. Stiso, 50, said he feels lucky. After serving more than five years in prison, he returned to the same house and loyal and loving family, he said. Although he lost his law license and thriving legal practice, he found work selling investments in life insurance policies and also consults with other white-collar defendants about what they will face in prison, he said.

“I have no problem with the sentence I received,” Mr. Stiso said. “The entire experience saved me.” He said it was not the amount of time that changed him; it was “having to go through” the process.

This is another sentiment I hear echoed from many prisoners and former prisoners who contact FAMM. One of the ways we have simplified sentencing is to say that it's the amount of time that punishes, deters, and leads to rehabilitation. But many who have been through the process of being charged, convicted, and sentenced can vouch that the length of the sentence isn't what inspires them to change and stay crime-free.

The article shows Judge Chin aiming to be thoughtful, compassionate, and human -- he admits that emotions play a role in sentencing, believes in giving people second chances, but knows that not everyone will come out better in the end. But when a mandatory minimum sentence applies, we remove the thoughtfulness, compassion, and humanity of judges from sentencing altogether. When there is a mandatory minimum, we might as well put a robot up there in a black robe.

Sentencing is the hardest part of being a judge because it should be. As voters and advocates, we must oppose every effort by legislators to control and oversimplify this complicated and thoroughly human process with mechanical mandatory sentencing laws.

-- Stowe

(Short) Good and Mad Reading for the (Long) Weekend

2011-10-07T10:14:00.003-04:00

In the news lately, there's been a lot of stuff about how prosecutors abuse their power, and we've blogged about it here and here. Mandatory minimum sentences play a large role in this abuse, because they're the sledgehammers prosecutors use to get people to plead guilty -- even if they're not.

Today, Dan K. Thomasson of the Scripps Howard News Service adds this brief but maddening article to the conversation about prosecutors run amok. Here's an excerpt:

... prosecutors, most of whom are elected, use the threat of felonies with long prison terms to extract guilty pleas to lesser charges as a way of clearing cases without going to trial. Implicit in this for the victim is the specter of expensive, debilitating trials. What the accused miss is their day in court. As a result the number of trials in America's courts has dropped substantially, according to news reports.

Adoption of heavy mandatory sentences for some crimes has contributed considerably to the situation, making judges at all levels less and less relevant to a system that now more than ever rests in the hands of the prosecutors. Many of the prosecutors on the state and local levels view the position as a way to catapult themselves into higher political or lucrative private positions or to maintain holds on their current jobs, sometimes for decades. The infamous Duke University lacrosse case where team members were callously accused of sexual abuse of a dancer is the latter. The prosecutor, who was up for reelection, not only was forced to drop the charges but also lost his license to practice law and was briefly incarcerated.

Particularly disturbing is the tendency of many prosecutors to resist ever admitting that the person against whom they have won a conviction is in fact not guilty despite overwhelming evidence, including at times, DNA and recanting witnesses. There is a growing list of the wrongly convicted from death row to lesser sites who have been finally released over the long standing objections of prosecutors.

This series of articles raises important questions. Who do we trust to do justice in the United States? How much power they should have? Not all prosecutors abuse their power, but removing mandatory minimum sentences from a prosecutor's arsenal would take away one tempting means of abuse and would increase fairness in our system.

Guess who else thinks there are too many federal drug laws?

2011-10-06T11:28:00.001-04:00

From The Wall Street Journal:

WASHINGTON—Supreme Court Justice Antonin Scalia criticized the expansion of federal narcotics laws Wednesday, saying that the large number of drug cases has diluted the quality of the federal justice system.

"It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee at an unusual hearing that brought Justice Scalia and Justice Stephen Breyer to discuss with senators the judiciary's role in the constitutional system.

Justice Scalia said routine drug cases belong in state courts, which handle the vast majority of trials for most criminal offenses. The Judiciary Committee chairman, Sen. Patrick Leahy (D., Vt.), himself a former state prosecutor, agreed.

Now, those who have followed Justice Scalia's career would know better than to assume that Justice Scalia thinks drug crimes should not be punished; he simply suggested that they should be prosecuted by the states. But think about how many fewer unjust sentences we would encounter if we did away with federal mandatory minimums for drug crimes?

- Ingersoll

Alaska Puts Prison Crisis in Perspective

2011-10-06T10:47:00.002-04:00

According to 2010 U.S. Census Bureau data, Alaska is the largest state, the least densely populated, and has the second-lowest population (Wyoming has the lowest) in the country. Yet, it has a prison overcrowding problem -- just like dozens of other states in the lower 48.

This interesting article about Alaska's conundrum puts some perspective on the scope of America's incarceration addiction: if even our most sparsely-populated place has overincarceration issues, we're putting too many people in prison as a country. And the costs have become unsustainable. State legislators on both sides of the political aisle are looking for solutions, including lowering recidivism:

House and Senate panels that oversee the state corrections budget hosted a daylong "Smart Justice Summit" at the Legislative Information Office in Anchorage Monday to learn how other states tackled the problem and to examine what innovations might work in Alaska.

"There are escalating costs that are of significant concern," said Sen. Johnny Ellis, a Democrat from Anchorage who chairs the corrections budget panel in the Senate.

This year's operating budget for the state Department of Corrections tops $288 million, up more than $110 million from what was being spent 10 years ago, according to the agency.

The state's new Goose Creek prison, which is supposed to open next July, cost about $250 million to build, and if state leaders don't flip the trend, it'll be full in just a couple of years.

Liberals and conservatives can unite over reforms that cut costs while offering more help for offenders, Ellis said. For example, he said he backs all the principles -- including accountability, lowering crime and rehabilitation -- espoused by an initiative called Right on Crime that includes high profile conservatives, Newt Gingrich, Jeb Bush and Ed Meese among them.

"It's a magic moment," Ellis said.

In a sense, crowded prisons are a problem of politicians' own making, the result of get-tough-on-crime laws that swept the country in the 1980s and 1990s. Alaska's Legislature passed its share. ...

Alaska is among eight states that experienced the biggest increase in prison populations between the end of 2008 and the start of 2010, according to a Pew Center on the States study cited by Carmen Gutierrez, a former defense lawyer who now is a deputy corrections commissioner. In Alaska, the prison population rose almost 4 percent. In many states, including California and Texas, the population dropped.

One in 36 Alaska adults was either in prison, jail or a halfway house or on probation or parole as of the end of 2007, another Pew Center report found. In 1982, the figure for Alaska was 1 in 90. Alaska imprisons its residents at a much higher rate than the national average, Gutierrez told legislators.

Alaska, like so many states, is learning that prison can't be the default solution for crime. Lengthy sentences and mandatory minimum sentences should be the first punishments to get a merciless review from the state's legislature.

Why Isn't Mr. Obama Exercising His Pardon Power?

2011-10-05T14:57:00.002-04:00

That's the question posed by this superb editorial in the Washington Post, which is reprinted in full below:

A report from the Justice Department’s Office of Inspector General rightly takes the Obama administration to task for moving at a snail’s pace to answer the pleas of thousands of inmates seeking clemency or pardon.

The report notes that significant delays occur at virtually every step of the pardon process, which begins when a prisoner files a request with the Justice Department’s Office of the Pardon Attorney. DOJ officials often take months to report back to the pardon attorney with their views.

But the greatest share of the blame for the slow speed resides with the White House. Mr. Obama did not issue a single pardon for nearly the first two years of his presidency. Once Justice Department recommendations are forwarded to the White House, they languish an average of nine months before the president acts. The administration has recently made headway in reducing the backlog of cases — from 4,700 to 2,000 — but only because it denied thousands of petitions.

While more timely processing is needed, the real travesty involves the president’s miserly use of his pardon power. Pardon is often an inmate’s last best chance for justice. It is meant to correct wrongs left unaddressed by the courts or legislature, and should be used wisely but unsparingly to give a second chance to those who have been wrongly convicted or sentenced to disproportionately and unjustifiably long prison terms.

Mr. Obama has thus far extended mercy to a mere 17 individuals, most of whom committed relatively minor offenses decades ago. Take, for example, the case of Ronald Lee Foster, who was an 18-year-old Marine in 1963 when he was sentenced to one year of probation and a $20 fine for mutilating U.S. coins. It did not take an abundance of courage for Mr. Obama to pardon Mr. Foster. At this pace, Mr. Obama is likely to fall below the 189 pardons issued by George W. Bush — the modern president with the worst track record in this area.

Mr. Obama need only look to the thousands of Americans — many of them young, African American men — incarcerated for inexcusably lengthy periods because of draconian crack cocaine laws. Mr. Obama joined with a bipartisan coalition in Congress to reduce the penalties and make them more proportional to the crime. Some inmates may benefit from a U.S. Sentencing Commission decision this summer that allows judges to resentence inmates under new guidelines reflecting the penalty reductions. But many nonviolent offenders worthy of relief will be out of luck because they were sentenced to mandatory minimum prison terms. This is exactly the kind of situation that cries out for presidential intervention.

FAMM couldn't agree more.

Today is National Call-in Day!

2011-10-05T11:58:00.000-04:00

You've got all day today to put in a phone call that could move S. 306, the National Criminal Justice Commission Act, forward. It's easy! Here's how you do it:

Call U.S. Senate leadership:

U.S. Senate Majority Leader Harry Reid (D-NV), 202-224-3542
U.S. Senate Minority Leader Mitch McConnell (R-KY), 202-224-3135

Here's what to say:

I am calling to ask the senator to support immediate Senate passage of S. 306, the National Criminal Justice Commission Act.

The proposed commission would review the criminal justice system, identify programs and policies that promote public safety, and urge reform of policies and practices that aren't working.

One policy that needs review is mandatory minimum sentencing. Thousands of offenders receive lengthy mandatory terms. These sentences have filled prisons across the country well beyond capacity.

The current incarceration rate comes at a high cost to taxpayers, families and communities.

Passage of S. 306 will lead to a more effective and just system. Please pass the bill.

Thank you!

That's it! Two senators, two calls, a two-minute message, and you can help FAMM! If you want to when you're done, email Jennifer Stitt, our Director of Federal Legislative Affairs, at jstitt@famm.org to let her know how it went! Easy!

You can learn more about S. 306 here.

Thanks in advance for your help!

November 1 is coming!

2011-10-04T10:59:00.000-04:00

November 1, 2011 is the effective date of the new, retroactive crack cocaine guideline amendments to the federal sentencing guidelines.

For about 12,000 federal crack offenders nationwide, that could mean lots of good news.

Here's a Columbus Dispatch article describing how the retroactive amendments will give some federal crack offenders in Ohio a chance to request a sentence reduction and (if the judge grants the request) go home earlier:

More than 360 prison inmates who have gone through U.S. District Court in the Southern District of Ohio are receiving welcome news: Their prison terms might be shortened.

Beginning Nov. 1, an estimated 12,000 crack-cocaine offenders nationwide will be eligible for reduced sentences because of a retroactive change in federal sentencing guidelines.

Steven Nolder, federal public defender for the Southern District, said 369 prisoners have been identified as potential candidates for early release. He estimates that 200 to 250 actually will be eligible....

The commission found that about 52 percent of those eligible for sentence reductions are in 11 states, mostly in the South. The average reduction would be 37 months — from 13 years, eight months, to 10 years, seven months.

To refresh your memory about crack guideline changes, visit FAMM's page (full of helpful answers to FAQs) on the subject, or check out the U.S. Sentencing Commission's answers to FAQs.

If you or your loved one are a federal crack offender and think you might benefit, be sure to contact an attorney or the Federal Public Defender's Office in the district where the conviction occurred to ask for help filing a motion for a sentence reduction.

The Long-Lasting Effects of Mandatory Guidelines

2011-10-03T13:01:00.001-04:00

Two articles in the Chicago Tribune this weekend highlight the need for judicial discretion and flexibility in federal sentencing law.

In 1987, Congress created the U.S. Sentencing Commission, which wrote the U.S. Sentencing Guidelines. The guidelines apply in all federal cases, and until the Supreme Court decided U.S. v. Booker in 2005, they were mandatory. After Booker, the guidelines are advisory -- which means that judges must still use and consider them, but can sentence outside of them when the facts of the case, the uniqueness of the offender, or justice demand it. The Tribune explains the basics here.

But Booker isn't retroactive -- which means that there are thousands of federal offenders sentenced before 2005 still serving prison sentences handed out under mandatory guidelines. And not all of those sentences were just or sensible.

One example: Reynolds Wintersmith.

The Tribune details how Wintersmith, a first-time offender, got a life sentence under the then-mandatory guidelines in 1994.

Reynolds Wintersmith's first conviction was a costly one.

At 20 he was sent away for life after being convicted in a large-scale drug conspiracy.

It was a mandatory sentence that troubled even the judge, who questioned if lawmakers really intended this kind of outcome for someone so young. ...

Under the guidelines, Wintersmith's crimes were churned through a mathematical formula that spit out a sentence for the judge to impose. A number of factors jacked up his punishment. He was convicted of being part of a Gangster Disciples-run drug conspiracy in Rockford. The law also held him accountable for being a leader in the gang and pushing large quantities of cocaine and crack on the street. The gang also used weapons to protect its drug trade. It all added up to mandatory life, a sentence in which the judge had no say. ...

And the federal judge who handed down the sentence lamented at the time that his hands were tied by mandatory sentencing guidelines.

"Even though … other members (of the conspiracy) … seem to me to be more significantly involved, and there ought to be some latitude for the court to take that into consideration when you have a 17-year-old who gets involved … there is not another alternative available," U.S. District Judge Philip Reinhard said while sentencing Wintersmith. "It gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life, but in any event, it's there."

Wintersmith, like many federal prisoners, has worked hard to educate and improve himself during his 17 years in prison, and he has a group of supporters working against long odds to get him out of prison or get him a presidential commutation, which could let him return to society.

The stories highlight so much of what FAMM is working to promote and protect: judges should have the power to look an individual in the eye and give him a sentence that fits, that protects the public, that allows for rehabilitation, that takes all the facts and circumstances into account, and that isn't either too harsh or too lenient. The goal of our justice system should be the kind of sentence Reynolds Wintersmith didn't get.

New York Times on Mandatories: "Get Rid of Them"

2011-09-29T11:56:00.003-04:00

The New York Times features a spectacular editorial on how mandatory minimums are making a mockery of the American criminal justice system. Pass it on to friends and family. Here it is, in its entirety:

An Invitation to Overreach
Sept. 28, 2011

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems. As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities. African-Americans recently made up 24 percent of the federal prison population but 33 percent of those given mandatory minimum sentences. Excluding immigration cases, Hispanics accounted for 30 percent of the prison population but almost 40 percent of such sentences.

These laws have helped fill prisons without increasing public safety. In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

More Crimes, Less Guilt?

2011-09-28T16:19:00.000-04:00

In today's battles over the size (and cost) of the federal government, we shouldn't ignore the criminal justice system -- or what is considered a federal crime. Over the years, the list of federal crimes has grown, even adding traditionally state-level crimes to the federal criminal code. For example, street-corner drug selling -- which could be (and often is) ably handled by the local police -- can land a person in federal prison, often with a decade-long mandatory minimum sentence.

And there are entire new crops of federal crimes springing up from unexpected places: thousands of federal regulations that cover everything from protecting the environment to running a small business.

The bad news: you could break one of these regulations without even knowing it and face criminal charges and even federal prison time for it.

This "gotta know" requirement is called mens rea in legalese, and it's the subject of this lengthy article from The Wall Street Journal. It asks a simple question: should a person know they're breaking a law before they can be sent to jail for it? But if the answer is yes, is that fair when there are more federal laws than anyone could possibly know about?

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s. ...

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.

Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.

A big part of this "overfederalization" problem is poorly-drafted laws from Congress. Another part of the problem is that some of this stuff shouldn't be a federal crime in the first place. And from a sentencing standpoint, the worst problem is when Congress slaps a mandatory minimum prison term on these offenses.

Federal prisons are overcrowded -- dangerously so. That precious bed space costs taxpayers a fortune. We should use it wisely, for offenses that are really crimes and are really federal (not state) crimes.

Prison Reforms Needed -- in Virginia and Elsewhere

2011-09-27T15:02:00.000-04:00

That's the message of this editorial from Newport News's Daily Press, and it prominently features Representative Bobby Scott (D-VA), a long-time champion of mandatory minimum sentencing reform.

Rep. Robert C. "Bobby" Scott (D-Newport News) has been championing prison reform for some time. A close look at the facts suggests he may be right. ...

[Virginia] now has more than 38,000 prisoners — one of every 89 adults. Following a national trend, Virginia's prison population has increased by 58 percent since 2000. ...

The U.S. has experienced an unfathomable 460 percent increase since 1980 — from 500,000 to 2.3 million inmates. That's an average of 43,266 additional prisoners per year since 2005.This explosion stems from two primary factors: excessive mandatory minimum sentences for drug-related crimes, which account for about 25 percent of all prison time, and overreaching legislation of jittery officials who are afraid to be tagged as "soft on crime." ...

Economics aside, proponents of minimum-mandatory sentences claim their tough, no-nonsense justice keeps us safe. They say the option is simple: more prisons or more crime.

We don't believe the choice is that stark.

When Texas prison rates were cut by eight percent, its crime rate decreased by six percent.

Why? The Lone Star state didn't just release inmates; it placed them under community supervision, in halfway houses and in treatment facilities. Moreover, it linked the funding of those programs to their ability to reduce the recidivism rate. It worked: the Texas crime rate in 2010 dropped to its lowest level since 1973.

Not to mention that crime nation-wide is down, even with a recession on.

The call for reform in Virginia prompts an interesting question: could conservative states lead the way on this issue? "Soft on crime" is the last descriptor most people would use for Texas or Virginia. If they lead the way in becoming "smart on crime," will other states follow?

Which states (conservative or otherwise) do you see changing their sentencing laws soon?

Plead Guilty -- Or Else

2011-09-26T11:35:00.000-04:00

This excellent article from today's New York Times highlights one of the nastier sides of mandatory minimum sentencing laws: their ability to scare people into giving up their constitutional rights and pleading guilty.

Of course, that's why prosecutors love them: threaten a defendant with a long, mandatory sentence, and he'll probably cooperate, plead guilty, and skip a trial -- meaning less work for everyone, judge, jury, and prosecutor...and less justice, especially for those who might be innocent but don't want to roll the dice with a jury.

In short, your favorite courtroom TV drama is a work of fiction, because virtually everyone pleads guilty these days -- or else. Mandatory sentencing laws and harsh guidelines are largely to blame.

The problem is so well-known it even has a name -- the "Trial Penalty" -- but because plea bargaining isn't made public or tracked, it's difficult to verify how widespread it has become, or to hold prosecutors accountable for abuses:

The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.

In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”

Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.

While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”

But one result is obvious, he said: “We hardly have trials anymore.”

Plea bargaining isn't the only area where prosecutors have power that is both awe-inspiring and unchecked. Mandatory minimums also give prosecutors control over sentencing.

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

So, what kind of justice system is this? If prosecutors can use mandatory minimums to stop people from going to trial and to stop judges from actually sentencing, what are we paying judges for?

Good and Mad Reading for the Weekend

2011-09-23T12:37:00.001-04:00

We all know how it works. A horrific, tragic crime happens to small child. It turns into a local/state/national media hoopla, a la the Casey Anthony trial. Lawmakers stampede for the microphone, anxious to be the first to suggest creating a law to protect our kids from whatever "new" atrocity we've just been introduced to. Legislators make tough-on-crime proposals, introduce legislation, and pass it, riding a wave of voter popularity to certain reelection.

And all of this with little or no thought, study, research, or debate on the need for a new law. (Or a new, harsh mandatory minimum and its possible unintended consequences.)

And it is, indeed, Casey Anthony that is sparking a new tidal wave of "Caylee's Law" proposals across the country, as this article from USAToday describes.

The bills are the latest effort to establish laws in the wake of high-profile crimes involving a young victim. These laws, which are generally supported by child advocates, have prompted some critics to wonder whether it's appropriate to legislate in the heat of the moment.

"Is it a good way to draft law? No, it's not," says Frank Baumgartner, a professor of political science at the University of North Carolina. "The problem with this is, it's kind of a reflection of what you can call an overreaction or a disproportionate attention to a problem that's probably always been there." ...

In Illinois, state Rep. Dwight Kay, a Republican, says the Anthony case caught the nation's attention and it caught his attention. He says he doesn't know how often missing or dead children go unreported, but a law is needed in his state. "We saw it in Florida; we need to prevent it in Illinois."

When lawmakers don't know for sure that something is a problem, they're supposed to stop and find out before they pass a new law. Here's hoping Illinois does.

With 2.3 million people in our prisons and thousands upon thousands of criminal laws on our books, we need to have a better approach to legislating than overreaction. Is what happened in the Casey Anthony case sad and unacceptable? Yes. Does it require new laws? Perhaps. Is it too much to ask that lawmakers slow down and actually answer that question before they create a new law? I hope not.

Drug-Induced Deaths: What is the right punishment?

2011-09-22T14:31:00.002-04:00

This lengthy and worthwhile article from the Belleville News-Democrat (Illinois) examines drug-induced deaths and the question of who should be punished for them -- and for how long.

Under federal law, selling drugs to someone who later dies from using them has a mandatory minimum of 20 years, and the sentence can go all the way up to life. State sentences differ across the country, and Illinois doesn't appear to have a mandatory minimum for this kind of crime. But with or without a mandatory minimum, prosecutors, judges, and jurors grow nervous about the punishment when the drug provider and the drug user/victim are friends or co-drug users. The article offers a federal case as an example:

Andrea R. Fields, 29, of Belleville, was charged with killing David L. Roth, 56, because she injected him with heroin. A federal jury recently acquitted her.

According to police and prosecutors, Roth drove Fields and her boyfriend, Scott Weldon, to East St. Louis to get heroin. Weldon bought it. Fields split the drug into thirds and injected herself and the men.

Three months after Roth died, and hundreds of hours into the investigation, Fields and Weldon were indicted on the federal felony charge of distributing heroin resulting in a death.

Jurors were not convinced she distributed a controlled substance.

The jury asked the judge, "Does the injection of a controlled substance constitute 'distribution?'"

The judge said that was for them to decide. Fields was cleared within hours.

Field's public defender, Neal Connors, said he tried the case because the distribution part of the law is unclear.

Weldon pleaded guilty and admitted he purchased the drugs. He was sentenced Friday to eight years in prison, as requested by the U.S. Attorney's Office, instead of the mandatory minimum sentence of 20 years.

Jim Porter, of the U.S. Attorney's Office, stated in an email, "Our job is to not only prosecute, but to do justice. Given all the facts in this case, we believe that the sentence was a just one."

Perhaps so, but it also raises questions of what the best solution is for the offender, the community, and taxpayers. If both victim and defendant have drug abuse problems, shouldn't treatment or a drug court at least be an option? At the federal level, it's not an option at all. In cash-starved states, it may not be an option for much longer:

At the same time overdoses are rising, [Illinois] announced millions of dollars in cuts to substance treatment funding, costing some treatment centers 30 percent of their funds, said Sara Howe, chief executive officer of the Illinois Alcoholism and Drug Dependence Association, a lobbying group for treatment centers across the state.

The state cuts will probably be coupled with federal cuts this fall, Howe said. The cuts are being made even though it is much more cost-effective to treat addicts instead of putting them in prison, she said.

"It is really horribly concerning," she said.

A death from a drug transaction is a horrible, tragic outcome. But even for this most serious of consequences, the punishments must be fair. The sentences must fit offenders, and they should be cost-effective, protect the public, and rehabilitate offenders, too.

Mass News Roundup

2011-09-22T13:13:00.000-04:00

Lots of news from Tuesday's hearing in front of the Judiciary Committee to consider mandatory minimum reform legislation pending in Massachusetts:

A general summary from The Boston Globe (quoting Barb Dougan, FAMM's Massachusetts project director, on why reform is necessary: "We treat low-level drug offenders and addicts the same as drug kingpins, sometimes even worse.")
This AP coverage at The Boston Globe gets into some of the budget issues and explains how the reforms would trim corrections costs for taxpayers
Couldn't get up this morning at 6:15 a.m. to hear Barb on WBUR? Listen to it here!

And follow all the updates on Massachusetts sentencing reform efforts here.

Straight from the Source

2011-09-21T17:24:00.000-04:00

Want to know what the U.S. Sentencing Commission is going to be up to for the remainder of 2011 and most of 2012? Get it straight from the source: Chair Patti Saris covers it all over at the U.S. Courts' website.

Among other highlights, says Judge Saris,

The Commission is hard at work on three comprehensive reports to Congress. The first is a report on mandatory minimum penalties and their role in the federal sentencing system after the Supreme Court's decision in United States v. Booker. It will include, among other things, an assessment of the compatibility of mandatory minimum sentencing provisions with the guidelines system established by the Sentencing Reform Act of 1984 and of the impact of mandatory minimums on unwarranted sentencing disparity. The report also will address broader drug policy issues, including whether to expand the application of the safety valve provision at 18 U.S.C. § 3553(e) that exempts certain offenders from mandatory minimum sentences.

Obviously, FAMM supports expansion of the "safety valve," which we worked hard to create in 1994 and which is still one of the only ways out of receiving a mandatory minimum drug sentence in federal court. We've also been supporting the Commission's efforts to put out a new report on mandatory minimum sentences. The last (and only) report came out in 1991, and 20 years later, it's time for the Commission to take another hard look at these draconian sentences.

In the interview, Judge Saris also makes protecting and improving the advisory (not mandatory) sentencing guidelines a priority, goals FAMM shares:

My priority is to make the advisory guidelines system as effective as possible in a post-Booker world. Seventy-five percent of district court judges have expressed strong support for this advisory guideline system. While some have criticized this system, over 80 percent of sentences are within the guidelines or based on government sponsored departures and variances. Nonetheless, we must work with Congress, the Executive Branch, and the courts to fix the least-followed guidelines, especially those for child pornography. Economic fraud is another area that needs work.

Keep checking FAMM's website for updates on all the action happening at the U.S. Sentencing Commission in the coming months.

Voices for Reform: 30 Years of Mandatory Minimums in Massachusetts

2011-09-20T17:40:00.000-04:00

That's the name of FAMM's new report on Massachusetts's mandatory sentencing laws, featuring everyone from a former Congressman and District Attorney to judges, to a FAMM family member impacted by the laws, to The Wire writer Dennis Lehane. The report is out today!

But the bigger news is today's hearing before the Judiciary Committee. Read the testimony from our Massachusetts project director, Barb Dougan, here, and check out Michelle Collette's story about her own journey through the mandatory sentencing system. You can read FAMM's press release about the hearing here.

Barb sums it all up nicely:

Mandatory minimums have now been on the books in Massachusetts for 30 years. That sad milestone needs to be acknowledged. We have three decades of evidence that our current drug sentencing policies are a failure. Regardless of the number of people who are sent to prison on a mandatory sentence, there’s no corresponding decrease in either drug offenses or drug addiction. We hope that legislators will find this new report helpful.

Also, those in the Boston area should tune in tomorrow, Wednesday, Sept. 21, at 6:15 a.m. EST to hear Barb talk about possible sentencing reforms on NPR's Morning Edition on WBUR.

Many thanks to the FAMM members who came to the hearing and supported Barb, Michelle, and justice today!

Massachusetts Monday!

2011-09-19T14:24:00.001-04:00

It's going to be a big week in Massachusetts for FAMM and for sentencing reform.

On Tuesday, September 20, the state legislature’s Joint Judiciary Committee will hold a public hearing on sentencing reform bills, including Gov. Deval Patrick’s ground-breaking bill to repeal some mandatory minimum drug laws. FAMM’s Massachusetts project director, Barbara Dougan, will testify in support of the Governor’s bill and two other bills that were drafted by FAMM. She will be joined by Michelle Collette, a FAMM member and former state prisoner who served a mandatory minimum sentence, and Maryanne Frangules, head of the Massachusetts Organization for Addiction Recovery (MOAR).

That same day, FAMM will release a new report, “Voice for Reform: 30 Years of Mandatory Minimums in Massachusetts,” featuring essays from Massachusetts experts who have decades of experiences in criminal justice or addiction treatment:

· Andrea Cabral, Suffolk County Sheriff
· Matilde Castiel, doctor and addiction expert
· Bill Delahunt, former District Attorney and U.S. Congressman
· Maryanne Frangules, drug treatment advocate
· Nancy Gertner, former federal judge
· Linda Sullivan, mother of a state prisoner who is serving a mandatory minimum sentence
· Robert Ziemian, Massachusetts drug court judge
· Author Dennis Lehane, provided an introduction to the report.

You can read up on pending Massachusetts sentencing reform bills here, and learn all about the hearing and how you can get involved right here. Check back tomorrow to read our new report!

Good and Mad Reading for the Weekend

2011-09-16T15:18:00.000-04:00

Today, TalkLeft has this good coverage of the Senate Appropriations Committee's editing of the proposed federal budget for the Department of Justice and Bureau of Prisons (BOP). Some highlights that are sure to make some of us unhappy:

the Senate Appropriations Committee zapped the funding for prisoner reentry programs entirely, saying the money was needed for the Bureau of Prisons ... [but] gave BOP an increase, to $6.6 billion.

Here's what the Senate Committee approved in Obama's proposed 2012 budget for Commerce, Justice, Science Appropriations:

Bureau of Prisons: $6.6 billion for BOP Salaries and Expenses and to activate new prisons currently sitting empty ($307 million more than 2011.)

FBI: $7.8 billion for FBI salaries and expenses, national security and counterterrorism investigations, combating cyber threats, Weapons of Mass Destruction (WMD) capabilities, and violent crime reduction programs..

Drug Enforcement Administration (DEA): $2.2 billion for the DEA to target and dismantle criminal narcotics activities. This includes $10 million for the El Paso Intelligence Center (EPIC), which is DEA’s chief tactical intelligence sharing center on the Southwest border.

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF): $1.1 billion for ATF Salaries and Expenses, to reduce violent crime and enforce Federal firearms and explosives laws.

U.S. Marshals Service: $1.1 billion for U.S. Marshals Service salaries and expenses, to apprehend dangerous fugitives, protect the Federal courts and the judiciary, and transport prisoners for course proceedings.

Office of the Federal Detention Trustee: $1.56 billion

Crime Victims Fund (CVF) – The bill permits the expenditure of $705 million from the CVF for grants to assist victims of crime. This is equal to the FY2011 enacted level.

This spending comes hot on the heels of new Bureau of Justice Statistics data showing that violent and property crime were dramatically down in 2010, even with the recession. That might not last, however, given that the current budget trades increases in spending on prisons for cuts in state and local law enforcement assistance, the FBI, and other programs that presumably make us safer. Click here to read an analysis of the BJS data that doesn't pin our increased safety on more prisons.

A total of $6.6 billion for the BOP may seem like peanuts in the world of trillion-dollar federal budgeting, but it's a big deal to the Senate Appropriations Committee, which often grumps and gripes about spending more money on prisons. Back in 1982, pre-mandatory minimums, the federal prison budget was $541 million.

We've come a long way, taxpayers. How much do we have to spend on federal prisons before someone finally says we've gone too far?

The only silver lining in the budget is the Committee’s decision to call out the BOP. In its report language, the Commiittee calls on the BOP to use its

authorities through its operational discretion under 18 U.S.C section 3624 to, among other authorities, maximize the reentry time prisoners spend in residential reentry centers as well as home confinement; use its direct designation authority under 18 U.S.C. section 3621(b); expand the criteria for and use of compassionate release under 18 U.S.C. section 3582(c)(1)(A); and expand the use of the Residential Drug Abuse Program by removing barriers to full use of the program.

We'll have more coverage on federal justice budgeting next week.

Congressional Excess isn't Limited to Spending $

2011-09-15T14:03:00.000-04:00

Today, the Senate Judiciary Committee met to start marking up proposed additions to the Computer Fraud and Abuse Act. Using computers to commit fraud is bad, right? But are all varieties of "fraud" bad enough to be federal felonies, zapping people of civil rights for the rest of their lives unless they receive one of the measly number of pardons presidents seem to be grudgingly handing out only every 8 years? And how should these new federal crimes be punished?

These questions aren't just hypothetical -- they are what Congress should be asking every time it decides to add a new offense to our already gigantic set of criminal laws:

1. Should it be a crime?
Are we criminalizing something that is actually, really, truly bad and immoral conduct?

2. Is a new federal criminal law needed?
Do we already have a law that covers this? Is this something the states can handle on their own?

3. If it should be a federal crime, what should the criminal-intent requirement be?
Does a person have to break this new law willingly or knowingly, knowing that they're committing a crime?

4. If it should be a federal crime, what is the appropriate punishment?
Should it be a felony or a misdemeanor? Is prison really necessary?

Law professor Orin Kerr hilariously shows over at the Wall Street Journal that these new federal cyber-fraud felonies Congress is considering have ridiculous implications. See if you've committed any of these computer fraud "crimes":

- Checking your email account at work
- Updating your Facebook status at work
- Using your roommate's coffeemaker without his permission
- Lying about your age or weight on a dating website

Look out! According to Kerr, the proposed "computer fraud and abuse" felonies Congress is toying with creating are poorly worded, vague, prosecutorial abuse stories waiting to happen.

Congress is also considering creating a new three-year mandatory minimum for hacking into a "critical infrastructure computer." Sounds like cyber-terrorism, yes? But could it also be applied to a wayward collegiate hacker-wanna-be who didn't know what the heck he was doing and ended up in the cyber mainframe of the local power plant? Sure.

That's the thing about mandatory minimums: they don't give a damn if the hacker is a terrorist or the underachieving son who's still living in your basement.

Congress has gotten infamous -- and rightly so -- for spending us into a black hole of debt. It seems Congress also can't control itself when it comes to creating, expanding, and punishing crimes. It's about time for Congress to stop and think before it pulls out its red pens and dives into our criminal code.

Real lives and billions of taxpayer dollars are depending on it.

Big Day for Nevada Justice in Taylor Case

2011-09-15T12:36:00.001-04:00

Out in Nevada today, Michelle Taylor will get a chance to argue to the Nevada Supreme Court that her life sentence violates the ban on cruel and unusual punishments. In case you've forgotten the details, here's the skinny:

Ms. Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex. Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime. Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years.

FAMM's been following the case closely and filed an amicus brief in support of Ms. Taylor's position, and you can read our press release about it here.

Here are our previous blog posts on this case, to get the full history and see some of the outrage and disbelief it has fostered:

Nevada's Shame: The Case of Michelle Taylor , Part I

SentenceSpeak: Nevada's Shame: The Case of Michelle Taylor , Part II

Now John Stossel Weighs in on Michelle Taylor Sentence

An Honest Politician....Seriously

Michelle Taylor's Attorneys Take Case to NV Supreme Court

SentenceSpeak: One Year Anniversary of Michelle Taylor Life ...

Regardless of what you think about her conduct, Michelle Taylor didn't get the individualized treatment that all people deserve when they are sentenced in an American court. That's what FAMM is fighting for. A one-size-fits-all punishment is, by definition, cruel and unusual punishment. As FAMM President Julie Stewart puts it:

In all cases, however, FAMM is committed to the bedrock principle of justice that individuals should be punished based on the severity of their crime as well as their personal culpability. In Ms. Taylor’s case, the life-for-lewdness law is written so broadly that she could have received a shorter sentence if she had murdered or kidnapped her victim. Hers was not the case lawmakers had in mind when they set the mandatory life penalty. But, once again, a mandatory minimum law took away the court’s discretion to impose a more reasonable sentence.

Check back at www.famm.org for updates on the Taylor case in the next few months.

Life Without Parole Getting Out of Control?

2011-09-14T17:37:00.002-04:00

That's the question posed in this editorial from The New York Times, and their answer is yes, it is.

From 1992 to 2008, the number in prison for life without parole tripled from 12,453 to 41,095, even though violent crime declined sharply all over the country during that period. That increase is also much greater than the percentage rise in offenders serving life sentences. ...

In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting. Nationwide, the racial disparity in the penalty is stark. Blacks make up 56.4 percent of those serving life without parole, though they are 37.5 percent of prisoners in all state prisons.

Wow! And that's just Georgia. Any faithful FAMM follower knows that life without parole sentences abound for nonviolent crimes. Under federal law, a third drug offense -- even a puny or nonviolent one -- can earn a person a one-way ticket into the federal prison system. According to the federal Bureau of Prisons, there are over 6,000 lifers in the federal system. In many states (California is only the most infamous), three strikes laws also exist, locking up thousands upon thousands for, well, forever.

There seems to be a perception that life without parole only goes to super-violent, serial killer types. Not so, and it is one of the worst excesses of our criminal justice system.

Who's Smokin' What?

2011-09-13T10:48:00.003-04:00

The goal of the annual National Survey on Drug Use and Health (NSDUH) is to answer that question, and the 2010 results are out now.

For newcomers to this interesting survey, it compiles responses from over 60,000 interviews with Americans to gauge how many people are using and/or abusing alcohol, tobacco, and prescription and non-prescription drugs. For drug sentencing law nerds, it's a fun read on a rainy afternoon.

Here's a USA Today article about the latest survey's findings. Good news: methamphetamine use is down. Not so good news: marijuana use -- and use of other illicit drugs -- is up.

Wait a minute...aren't mandatory minimum sentences supposed to lower drug use?

Fluctuations in drug usage (and popularity) can be mysterious. While some might like to say our tough meth sentencing laws are doing the trick, a director at the agency that conducts the NSDUH offers another explanation entirely:

Meanwhile, methamphetamine use, which raced across the USA for a decade, has declined sharply. The number of past-month users fell from 731,000 in 2006 to 353,000 in 2010.

Since methamphetamine emerged as a problem drug in 2001, states have outlawed or restricted the sale of ingredients used to concoct homemade meth, such as pseudoephedrine found in cold medicines such as Sudafed.

"We've seen better attention for law enforcement and policy changes. You can't get all the Sudafed you want anymore," said Peter Delany, director of the Center for Behavioral Health Statistics and Quality at SAMHSA.

Ahhh, so it's the fact that people can't waltz into a CVS and buy a crate of Sudafed anymore that explains it.

Note that he does not give the credit to mandatory sentencing laws for meth crimes.

Jim Webb's Last Crusade

2011-09-12T14:46:00.002-04:00

That's the headline of this lengthy but worthwhile article over at Newsweek. Senator Jim Webb may be leaving the U.S. Senate in 2012, but he's trying to get the National Criminal Justice Commission Act (which FAMM supports) passed into law before he goes. The article salutes a courageous leader who has made criminal justice reform a priority during his time in office -- and is starting to see others from both parties agree with him that change is needed. Here's a snippet:

Webb, a law-and-order type who once derided affirmative action as “state-sponsored racism,” is an unlikely crusader for a cause typically championed by civil-rights activists and drug-war opponents. And yet, in 2009, the senator introduced legislation that would create the first comprehensive national review of crime policy in 45 years—legislation that he has been fighting, with plenty of “stress, insanity, and gnashing of teeth,” as one aide puts it, to pass, in vain, ever since. Now Webb, who recently announced that he will not seek a second term in 2012, thinks he may have finally found his moment. “The timing is right,” says Jeremy Travis, president of John Jay College of Criminal Justice. “We have millions of people in prison when states are struggling to balance their budgets, and, for the first time, a vibrant, nonideological middle ground on crime policy. This is a moral and fiscal problem now.”

We agree. The time is right to pass the National Criminal Justice Commission Act. Over at FAMM's website, you can contact your congressmen and ask them to support Senator Webb's bill.

Sharrif Floyd Did Not Take Money from Nevin Shapiro (But Florida Would Not Care)

2011-09-09T13:41:00.001-04:00

It’s September, and in the South that means one thing: college football. One might not immediately associate college football with sentencing reform, but a recent issue shows how lawmakers can learn from the gridiron.

Yesterday the NCAA – the administrative body that governs college athletics - announced that Sharrif Floyd, a defensive tackle for the University of Florida, would have to serve a two-game suspension and repay $2,700 in benefits he received while in high school. The NCAA prohibits athletes from accepting benefits from anyone who is not a family member or legal guardian.

You may also have seen the story about several University of Miami players who were recently suspended for violating the same rule. According to an investigative report by Yahoo Sports, accused Ponzi-schemer and former Miami booster Nevin Shapiro gave dozens of Miami recruits cash, food, and alcohol, threw parties for them on his yacht and even paid for players to visit strip clubs and prostitutes during their visits to “The U.” Or maybe you remember last year’s story about Ohio State players trading memorabilia for tattoos, which led to the resignation of Ohio State Head Football Coach Jim Tressel.

While he technically violated the same NCAA rule as the Miami and Ohio State players, Sharrif Floyd’s experience was much different. In his response to the suspension, University of Florida Head Football Coach Will Muschamp highlighted the distinctions:

Sharrif is what is good about college athletics – his life is about survival, struggle, disappointment and adversity. I have recruited kids that did not know where they would sleep that night or what they would eat. Growing up, Sharrif was one these kids. Sharrif’s life is also about triumph, honesty, integrity, determination, perseverance and character. …

I want to make it clear that this issue is not about sports agents, Florida boosters or his recruitment to Florida or anywhere else. The issue is about his survival and the only reason the NCAA, the SEC and the University of Florida were aware of these issues is because Sharrif brought them to our attention last February. He came forward because, as I said before, he is honest and because of his integrity.

Florida’s Athletic Director, Jeremy Foley, added:

Sharrif grew up in an environment where he didn't have the things most of us take for granted -- food, shelter and clothing. In the absence of parents, there were kind people, in no way affiliated with the University of Florida, who were not boosters or sports agents, that helped him along the way to provide those things that he would otherwise not have had.

Unlike the Miami recruits who partied in South Beach, Floyd accepted about $2,700 in cash over several months from the “Student Athlete Mentoring Foundation,” a nonprofit charity group that provides “support to high school student-athletes in their academic and athletic endeavors.” However, Floyd did technically violate an NCAA rule, and under the rule, Floyd could have been suspended up to four games. But based on Floyd's financial hardship and other mitigating circumstances, the penalty was reduced to two.

On the reduced penalty, Kevin Lennon, the NCAA's vice president of academic and membership affairs, said, "We examine each situation carefully and consider all elements related to a student-athlete's individual circumstances and the violation. This gives us the flexibility to tailor the conditions of reinstatement that take into account all details and are in the best interest of the involved student-athlete."

While Muschamp, Foley and Florida fans agree that suspending Floyd for even two games was too severe (the suspension is subject to appeal), lawmakers should learn from how the NCAA responded to this case. Faced with violations of the same rule, the NCAA recognized that the individual circumstances of Floyd’s case merited a different penalty than that given to Miami and Ohio State players.

Imagine if the NCAA had a “mandatory minimum” four-game suspension for violations of the “no benefit” rule. While it might deter some of the activity that took place at Miami and Ohio State, the NCAA would not be able to factor in relevant information like a player’s background, the source of the illegal benefits, the uses to which money was put, etc. in determining a proper punishment. Players like Floyd would have to serve the same sentence as even the most notorious, intentional offenders.

Similarly, mandatory minimum sentences tie judges’ hands, providing one-size-fits-all punishments that ignore legitimate distinctions among defendants and result all too often in injustices. A better option? Repeal mandatory sentences and restore individualized justice; let the punishment fit the crime and the offender.

If the NCAA can get something right, surely lawmakers can, too.

-- Gregory Newburn, Florida Project Director, FAMM

Michigan: Prisons Closing, Crime Dropping

2011-09-09T11:42:00.001-04:00

Seeing this article in the Detroit Free Press is super-satisfying to FAMM, which spent years working to repeal Michigan's draconian mandatory sentencing laws and win parole eligibility for the people who were sentenced under them. Those reforms are paying off for the state -- prisons are closing, and crime isn't rising.

Yes, folks, it can be done.

Repealing mandatory minimums can lower prison populations and make room for more effective alternative punishments that actually help people get rehabilitated and become law-abiding citizens. Because every word is worth reading, here it is in its entirety:

Jeff Gerritt: Prison policy changes are working to reduce number of inmates

Maybe you were too busy firing up the grill for the holiday weekend to notice, but Michigan's prison population dropped to the lowest level in 13 years last Friday.

The latest count -- 43,305 -- is 8,000 fewer than in March 2007, when the state locked up a record 51,554 people. Prison admissions are down, parole grants are up, and fewer people are returning to prison. Michigan has closed more than a dozen prisons and camps.

You probably don't feel any less safe, either -- and you shouldn't. Despite the ravings of prosecutors, crime has gone down significantly in recent years, even in the worst economy since the Great Depression.

Truth be told, no one really knows why. Crime rates have bounced around for the last 40 years, while the state's prison population rose steadily from 9,000 to more than 50,000.

Crime rates don't drive prison populations -- public policy does. And for almost four decades, an orgy of failed tough-on-crime measures like mandatory minimum drug sentences has driven incarceration rates here and around the country to insane levels.

Between 1980 and 1990, for example, Michigan's prison population more than doubled from 15,000 to 34,000, while the state's population increased less than 1%. The prison population rose another 40% to 47,700 by 2000. More people weren't necessarily going to prison, but they were staying a lot longer because of decisions made by politicians trying to sound tough instead of smart.

Besides enacting mandatory minimum sentences for drug offenses, the state eliminated good time for prisoners, passed truth-in-sentencing and felony firearms laws, replaced corrections professionals on the state Parole Board with political appointees, and used habitual offender laws more frequently. Michigan prisoners served, on average, 140% of their minimum sentences.

The result: massive increases in the state's prison population that have exacted enormous costs with little, if any, impact on crime rates. Spending nearly $2 billion a year, Corrections now devours 25% of the state's general fund and employs one in three state civil service workers. Michigan is one of only four states that spend more on prisons than higher education.

The news isn't all bad. Since 2005, the Michigan Prisoner Re-Entry Initiative has helped reduced recidivism by connecting parolees with jobs, housing and needed services. The number of parolees returning to prison for new crimes, for example, dropped 18% this year. You don't hear their stories in the media, but their efforts to stay on track in this economy are often nothing short of heroic.

Without changes in public policy, however, Michigan's prison population will probably remain relatively stable for the next few years, said Steve DeBor, administrator of the office of research and planning. Further decreases will take action by the governor and Legislature.

Following other states by restoring good time would be a good start. Other steps include establishing a commission to review sentencing guidelines, repealing Michigan's notorious juvenile lifer law, releasing dying and chronically sick inmates, and creating a temporary parole board to review the cases of hundreds of parolable lifers who now get a review only once every five years.

Legislators should also enact a presumptive parole statute, requiring the parole board to release offenders who have served their minimum sentence, completed recommended programs, maintained good conduct records and don't pose a significant threat to public safety.

Barbara Levine, executive director of the Citizens Alliance on Prisons and Public Spending, estimates those reforms would reduce the state's prison population to 34,000 -- where it stood in 1990 -- within a few years, saving more than $300 million a year.

Michigan cannot save this kind of money by spending less than the $2 a day it now spends on food for each inmate, or cutting the salaries of professional corrections officers. It can do it only by reducing the prison population and closing prisons. Each inmate costs an average of $35,000 a year to incarcerate.

Michigan's prison population has plummeted for the first time in decades while crime rates have fallen. There's a lesson there if politicians have the courage and common sense to see it. Gov. Rick Snyder and legislators must change the policies that still keep Michigan's prison population far higher than it needs to be.

Good and Mad Reading for the Weekend

2011-09-09T11:26:00.001-04:00

For the weekend ahead, we recommend stopping by the Los Angeles Times, which has this excellent article on how California is trying to unpack its prisons (they call it "realignment") by passing the buck to county facilities -- without giving those facilities the bucks they need to pay for it.

Note the additional California prison-unpacking coverage in the sidebar:

It's all good stuff on the mechanics of solving an overcrowding crisis. Of course, the best way to avert these mechanics entirely is not to pack the prisons in the first place. Choosing smarter options than mandatory minimum sentencing laws would be a big help in avoiding overstuffed prisons.

Attica's 40th Anniversary

2011-09-09T11:01:00.003-04:00

FORTY years ago today, more than 1,000 inmates at Attica Correctional Facility began a major civil and human rights protest — an uprising that is barely mentioned in textbooks but nevertheless was one of the most important rebellions in American history.

That's the opening salvo of this article, entitled "The Lingering Injustice of Attica," by Temple University history professor Heather Ann Thompson. She tries to set the record straight on what caused the protest, how it was (violently) resolved, and what it means for America in our current era of mass incarceration. Her conclusions:

The portrayal of [Attica] prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was [then-Governor Nelson A.] Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.

As America begins to rethink the wisdom of mass imprisonment, Attica reminds us that prisoners are in fact human beings who will struggle mightily when they are too long oppressed. It shows as well that we all suffer when the state overreacts to cries for reform.

Three Cheers for Two Elected Leaders

2011-09-09T09:22:00.000-04:00

SentenceSpeak salutes two elected officials today for their promotion of justice and common sense in sentencing. One's a Republican, the other a Democrat.

OH Gov. John Kasich

First, Ohio Govenor John Kasich. Earlier this year, he signed a significant prison reform bill that, among other things, will reduce the flow of first-time, non-violent offenders into Ohio's prisons. The bill was a nice win for reformers, but what caught SentenceSpeak's attention was Kasich's heartfelt commitment to preventing mistakes from ruining people's lives. This week, Kasich scored again when he commuted the sentence of a mother who was sent to prison for sending her kids to a better, safer school outside the district in which she lived. Mind you, her sentence was only 10 days in prison, but Kasich understood that a felony charge was too much and would have likely barred her from achieving her goal of becoming a teacher.

In a statement announcing the commutation, Gov. Kasich said:

When I first heard about this situation, it seemed to me that the penalty was excessive for the offense. In addition, the penalty could exclude her from certain economic opportunities for the rest of her life. So, today I’ve reduced those felony convictions to what I think are the more appropriate, first degree misdemeanors. No one should interpret this as a pass—it’s a second chance.

Bully for Governor Kasich!

Second, SentenceSpeak salutes Vermont Senator Patrick Leahy for his continued vigilance in protecting the federal criminal code from new, unnecessary mandatory minimum sentencing laws. This week, Senator Leahy held a hearing in his capacity as chairman of the Senate Judiciary Committee to examine the Obama administration's new cybersecurity proposal. We have no quarrel with the bill's objectives, but object strenuously to the proposed creation of a new three-year mandatory minimum for certain hacking offenses. (FAMM President Julie Stewart submitted testimony in opposition to the new mandatory minimum for the hearing.)

U.S. Sen. Patrick Leahy

According to Washington Internet Daily's coverage of the hearing, "Leahy denounced mandatory minimum sentences for cybercrimes and said he would not include them in his own cybersecurity proposal. "I believe that strong penalties with mandatory minimums are something that can be abused." he said.

Good for you, Senator Leahy - and good for all of us that we have leaders who understand how destructive mandatory minimum and excessive sentencing laws can be.

No, thanks, we're full

2011-09-08T00:29:00.001-04:00

Obama administration: How would you like another one-size-fits-all, mandatory minimum for the crime du jour?

FAMM: No, thanks.

FAMM Joins Krieger Fight

2011-09-08T00:09:00.001-04:00

In yesterday's post, we mentioned the outrageous case of Jennifer Krieger. What we forgot to mention is that FAMM filed an amicus brief urging the U.S. Supreme Court to hear her appeal.

Even Reasonable-Sounding Mandatory Minimums Don't Work

2011-09-06T11:27:00.002-04:00

Some mandatory minimums are objectionable on their face. Think of the long, mandatory sentences that, until very recently, were imposed on those involved with very small amounts of crack cocaine. Other mandatory minimums, however, do not seem as noxious at first glance. Consider: Under current law, a person convicted of distributing an illicit drug (a.k.a. a schedule I or II controlled substance other than marijuana) ordinarily is subject to up to 20 years in prison. But “if death or serious bodily injury results from the use of such substance,” the distributer faces a mandatory minimum of 20 years. To be sure, 20 years is a long time, but we are talking about feeding others drugs that kill or seriously harm them. Surely this mandatory sentence will ensnare only the worst of the worst, right?

Wrong.

Meet Jennifer Krieger. Ms. Krieger is a single mother who suffers from severe and chronic pain as a result of several medical conditions, including spinal cord defects and a brain deformity known as Arnold-Chiari malformation. Her doctor prescribed Krieger the pain medication fentanyl to manage the pain.

One night Jennifer went out with a friend, Jennifer Curry, with whom she occasionally used drugs. Krieger gave Curry one of her pain medication patches before they went out for the evening. At midnight, Krieger left her friend at a bar. The next morning, Curry was found dead on her parent's couch. Traces of the Krieger's pain medication were found in her blood as well as many other drugs, including cocaine and oxycodone. There was nothing to suggest that the death was intentional.

Jennifer Krieger, who had no prior criminal record, was charged with and pled guilty to distribution of a controlled substance. The charged offense carried no mandatory minimum and a statutory maximum of 20 years. The presentencing report recommended a sentencing range of 10-16 months. The government objected to the recommendation and argued instead that Ms. Krieger should be sentenced to a minimum of 20 years because her provision of the pain medication path to her friend “resulted in” death.

The judge who sentenced Ms. Krieger stated that he believed she deserved a significant sentence, but not 20 years. He said, “Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide.” The judge made it clear that he was sentencing Ms. Krieger to twenty years because he felt he had no choice or discretion, but specifically noted that he otherwise would have been inclined to issue a shorter sentence. To support his view, the judge pointed out that the average length of incarceration for defendants convicted for distributing the same drug Ms. Krieger gave her friend (where death did not result) was just seven months.

Ms. Krieger lost her appeal before the 7th Circuit Court of Appeals and is now waiting to hear whether the U.S. Supreme Court will hear her case. We hope so. Mandatory minimums do not work, even the reasonable sounding ones.

The War on Drugs: At Least it's Green

2011-09-02T17:37:00.003-04:00

That could be one message you take away from this so-fun-I-simply-must-blog-about-it post on National Geographic's website, entitled "The Energy Drain of Recreational Drugs." The gist: drug production is bad for the environment. The worst culprit: marijuana.

Here's the tantalizing opener:

Drug use can lead to dangerous addiction, crime and other societal ills, but another big downside goes relatively unrecognized: Drugs drain resources. The production and trafficking of controlled substances consumes not just money, but energy, water, and forests as well. From cannabis, cocaine, and heroin to methamphetamine and the leafy drug khat, chewed for its mild buzz in parts of Africa and the Middle East, humans' pursuit of an unnatural high is anything but green.

Among the many descriptors one can use to label the War on Drugs, "green" (as in eco-friendly) certainly hasn't been thrown around much. Might appealing to a person's eco-awareness level be a way to stop/prevent drug use?

Happy Friday and Happy Labor Day weekend!

-- Stowe

Mom Gets 12 Years in Prison for $31 of Pot

2011-09-01T10:53:00.001-04:00

You didn't read that wrong. That's the story in this article (plus some video) from the Tulsa World, detailing one case in which justice seems to have gone far, far off the tracks:

Patricia M. Spottedcrow, 26, received a 12-year prison sentence last October for selling a total of $31 in marijuana to a police informant in December 2009 and January 2010. Her mother, Delita Starr, 51, was also charged.

In blind guilty pleas before a judge, Spottedcrow received prison time, and her mother received a 30-year suspended sentence. Neither had prior criminal convictions. ...

The judge, who is now retired, said in a previous interview that Spottedcrow's decade-long sentence was imposed because her four young children were in the home at the time of the drug buys. She said first-time offenders usually do not go to prison and alternatives including treatment are typically sought.

When Spottedcrow was booked into the jail after sentencing, some marijuana was found in a jacket she was wearing. She pleaded guilty to a drug possession charge and was given a two-year sentence to run concurrent with her other sentence.

The judge said she gave Starr a suspended sentence so she could care for Spottedcrow's children, who are now 10, 5, 3 and 2.

A couple of thoughts:

Should having kids in the home at the time of a drug deal justify a (much) harsher sentence? Our hunch is that in-home drug dealing is pretty common, and kids are bound to see it. If every sentence got enhanced for in-front-of-the-kids conduct, imagine the impact it would have on our already packed prisons.
Should judges be required to give at least one caregiver a suspended sentence/probation in family drug conspiracies? Think of the savings to the state: no prison expenses for incarcerating the caregiver, the kids don't go to foster care, the long-term benefits of kids staying with at least some family. There are likely quite a few families engaged in drug trafficking -- should someone always get left behind to care for the kids of those who don't? How would the judge pick the caregiver? Should he be allowed to?

Thoughts (besides the obvious, which is that this sentence is absurd)?

Ending the Misery in Missouri

2011-08-31T13:30:00.000-04:00

That could be the end result if Missouri continues down the path of rethinking its "lock 'em up" approach to criminal justice. This editorial in the Columbia Daily Tribune describes the first important steps the state is taking:

... last month the Missouri Department of Corrections said 30,771 inmates are in jail, and the department is budgeted for $660 million in the coming fiscal year.

Supreme Court Chief Justice Ray Price Jr. recently said we must get over the idea long jail time makes the offender better. “It doesn’t. We have to be smarter about what we are doing.”

To that end, Gov. Jay Nixon this week highlighted the formation of the Missouri Working Group on Sentencing and Corrections, co-chaired by Rep. Chris Kelly, D-Columbia, and Sen. Jack Goodman, R-Mount Vernon. Nixon said the task force is looking at all aspects of the criminal justice system in an effort to reduce costs and hold offenders responsible for their actions. The working group, which has been meeting since June, is expected to complete a report in time for lawmakers to act on it during the 2012 legislative session.

It's easy to think, "Oh, it's just another working group and just another report" about these kinds of situations, but we're encouraged. In many, many places, harsh sentences and mandatory minimum punishments were enacted willy-nilly, in response to high profile crimes, with little or no rational thought or study beforehand. Taxpayers have ended up stuck with these nonsensical punishments for decades -- partly because policymakers wouldn't slow down and study the problem first.

Studying sentences before we create them stops stupidity before it starts.

Good and Mad Reading for the Weekend

2011-08-26T11:55:00.001-04:00

We missed this excellent article from The New York Times last weekend, called "Sex Offenders: The Last Pariahs," by Roger Lancaster.

The article will make you second-guess everything you think you know about sex offenders. Take this disturbing excerpt:

Sexual predators play a lead role in the production of a modern culture of fear.

In fact, the crimes that most spur public outrage — the abduction, rape and murder of children — are exceedingly rare. Statistically, a child’s risk of being killed by a sexual predator who is a stranger is comparable to the chance of being struck by lightning. The reported incidence of most forms of child abduction, including the most serious, has declined since the 1980s.

Or how about this paragraph, which shoots holes in the idea the notion that "sex offender = repeat offender":

Advocates for laws to register, publicize and monitor sex offenders after their release from custody typically assert that those convicted of sex crimes pose a high risk of sex crime recidivism. But studies by the Justice Department and other organizations show that recidivism rates are significantly lower for convicted sex offenders than for burglars, robbers, thieves, drug offenders and other convicts.

Only a tiny proportion of sex crimes are committed by repeat offenders, which suggests that current laws are misdirected and ineffective.

And did you know that the "sex offenders" who are given harsh sentences, lifetime registration requirements, and a host of living restrictions may not be the terrifying people we think they are?

Contrary to the common belief that burgeoning registries provide lists of child molesters, the victim need not have been a child and the perpetrator need not have been an adult. Child abusers may be minors themselves. Statutory rapists — a loose category that includes some offenses involving neither coercion nor violence — are covered in some states. Some states require exhibitionists and “peeping Toms” to register; Louisiana compelled some prostitutes to do so. Two-thirds of the North Carolina registrants sampled in a 2007 study by Human Rights Watch had been convicted of the nonviolent crime of “indecent liberties with a minor,” which does not necessarily involve physical contact.

And yet sex offenses are the new "crime du jour": prime candidates for lengthy, one-size-fits-all mandatory minimum sentences, registries, and residency restrictions.

All mandatory minimums are bad justice, because every offense and every offender -- even a sex offense and a sex offender -- is unique. We simply cannot simplify justice, especially in cases that involve something as complicated as sex.

For more excellent coverage of the unintended absurdities of harsh sex offender laws, read this piece from Reason.

Florida: Prison Privatization Won't Cut It

2011-08-25T13:38:00.001-04:00

That's the message of this excellent editorial from the Orlando Sentinel this week, as Florida continues plans to turn prisons over to private management to save money. Here's the whole thing, because it's so good:

Seek Savings Beyond Privatizing Prisons

In preparing a massive change to shave $22 million from its prison budget, the state is overlooking other reforms that could save plenty more money.

The state Department of Corrections is readying to complete the largest prison privatization project in the country. On Jan. 1, if all goes according to schedule, 29 state prisons in 18 Florida counties will be operated by private companies.

The operative word is scheduled.

Already the plan's bleeding $25 million in red ink, according to an internal email between Department of Corrections officials. The additional cost owes to compensatory time and vacation and sick leave the state would have to shell out for some 4,000 prison workers who lose their jobs.

Concurrently, DOC put the kibosh on seeking bids to privatize prison health-care services statewide. And the process could be halted by a lawsuit filed by the Florida Police Benevolent Association on behalf of unionized prison guards.

Privatizing prisons won't be the end of the world. The state has already privatized seven facilities.

Our concern is that this next, much larger stage of privatization has eclipsed and shelved potentially more fruitful, cost-effective changes. One of those is sentencing reform.

Florida has an inmate population of 102,000 men and women locked up in 144 facilities. It costs, on average, $19,469 per year to house an inmate. The corrections budget is $2.3 billion.

Advocates and lawmakers have argued — convincingly — that the state judiciary has been required to lock up many non-violent drug users when cheaper alternatives could have been employed. It makes sense that a pain pill addict caught buying or in possession of 24 grams of pills might fare better — and at much less expense to taxpayers — in drug treatment than in a 15-year sentence.

But good luck trying to convince lawmakers jittery about being labeled as soft on crime.

Just this past legislative session, state Sen. Ellyn Bogdanoff, R-Fort Lauderdale, and state Rep. Ari Porth, D-Coral Springs, offered a proposal to give judges more leeway in fashioning sentences to fit an offense. Ed Buss, the head of the Department of Corrections, was on record saying he supported giving judges more discretion.

Yet, the legislation failed.

And so, now, the state is planning a massive hand-over of prison management to save money. Sounds to us like a better option would be to let judges do the job they are best suited for: dispensing justice.

International Overdose Awareness Day is August 31!

2011-08-25T13:31:00.002-04:00

Just in case you didn't know it (and I didn't), International Overdose Awareness Day is August 31 -- next week.

FAMM board member Jason Flom has a thoughtful op-ed in The Huffington Post asking what his industry -- the music business -- can do to start talking about and raising awareness of drug overdoses and how to prevent them. Here's one of his many interesting suggestions:

We cannot forget the lives that have been lost, nor can we allow this catastrophe to continue. I'm calling on radio stations everywhere to help spread the word on International Overdose Awareness Day by playing music created by bands that have lost a member to a drug overdose, like Sublime, Blind Melon, Hole, Alice in Chains, the Red Hot Chili Peppers and the Ramones. Music by legends like Jim Morrison and Janis Joplin. I hope that the radio stations will mention Overdose Awareness Day and to give out the website www.drugpolicy.org/overdose so listeners can learn more about how to reduce overdose deaths.

Check it out and spread the word.

-- Stowe

How the Justice Department Can Really Save Us $$$

2011-08-24T16:46:00.000-04:00

With budget-crunching all the rage in Washington, DC, government agencies have been asked to look at regulations and find out where money can be saved. The Department of Justice -- which runs the federal prison system -- did an investigation and reported that it could save $60,000.

You read that right: thousand. Not million. Not billion.

Those savings are small potatoes, certainly not enough to dig us out of our deficit or satisfy the Tea Party crowd and liberals and conservatives alike who are calling for a leaner, meaner government machine.

Here's how the Justice Department could really save taxpayers some money: stop prosecuting low-level offenders.

It's not codified into a law or a regulation, but every day, Justice Department prosecutors from coast to coast decide who to charge, who to try, who to convict, and how long to sentence them to federal prison (thanks to mandatory minimum sentencing laws, which tie sentences to charges and tie judges' hands).

Those decisions literally cost taxpayers billions every year.

Over half the people in federal prisons -- to the tune of $28,000+ per prisoner, per year -- are there for a drug offense. The federal government doesn't have to prosecute these drug offenders or put them in federal prisons. All 50 states have their own laws against drug possession and trafficking, and the states are perfectly competent and capable of hauling in drug dealers off their own streets, prosecuting them in their own state (not federal) courts, and sending them to their own state (not federal) prisons (if necessary). And many states, unlike the federal system, have begun using smarter, cheaper alternatives to prison such as drug and mental health courts to help offenders get clean, get jobs, and get past their illegal behavior.

Once upon a time, the people who founded our wonderful country gave a name to this division of labor between the states and the federal government: "federalism." But the Department of Justice often seems to forget that (1) it can't do everything, and (2) it shouldn't do everything -- especially when there is a state on hand to do it for them (and do it better and cheaper).

To be fair, there are some drug offenders that the federal government is better-equipped to track down, capture, and prosecute -- for example, people "Miami Vice"-ing giant boatloads of cocaine into Florida ports, or Mexican cartel kingpins that Texas's finest can't just hop the border and arrest. But your average federal drug offender isn't one of these. Read stories like those of Sabrina Giles, Derrick Caine, and Darlene Eckles if you don't believe us. No international, fat-cat dealers there.

Federal prisons are expensive -- and overflowing. They serve a purpose, and it's federal prosecutors who control who goes there (and, often, for how long). If the Justice Department really wants to save taxpayers some money and help reduce our budget, they should begin by taking a good, long, hard look at who their prosecutors charge -- and by adopting charging policies that honor the principle of federalism.

What "Inside" Means

2011-08-23T12:59:00.000-04:00

This short segment from NPR explores one consequence of California's prison overcrowding: what to do with prisoners who officials determine are too dangerous to be with the rest of the prison population?

In California, those prisoners go to the "Secure Housing Unit (SHU)," long-term solitary confinement at the remote Pelican Bay prison near the Oregon border.

To get out of the SHU, a prisoner has to snitch — and that's one reason why California legislators are looking to make a change. Hundreds of inmates in solitary confinement won't do it and remain isolated for years.

"What that means in California is that you accumulate these men in Special Housing Units, and when Pelican Bay filled up, then it was necessary to build more of them," says David Ward, a retired criminologist who has studied California's prison system extensively.

So even California's solution for its most dangerous offenders is overcrowded.

This is the first blog post in a series we're calling What "Inside" Means. One of the dangers of America's love affair with incarceration is that we forget what being in prison -- being "inside" -- really means and actually entails. This series will highlight stories that remind us of what prison is really like -- and why we must be wise, compassionate, thrifty, and cautious about who goes there and how long they stay.