Category Archives: Mandatory Minimum Sentences

Pew Report: 1 in 100 U.S. Adults Behind Bars in 2008

A Pew report found that 1 in every 100 U.S. adults is now behind bars. The breakdown along racial and ethnic lines is even more disturbing. In the 18 and over age demographic for males, Pew found that 1 in 106 white males are behind bars compared to 1 in 36 for Hispanic males, and 1 in 15 for black males. The most incarcerated group of all is black males from the ages of 20 to 34 with 1 in 9 in this group behind bars.

Pew also found a large gender gap in incarcerations; 1 in 54 all males (18 and over) are behind bars compared to 1 in 265 of all women ages 35 to 69 (“all women 18 and over” must have been too small of a group to measure). The least incarcerated group of all is white women ages 35 to 39 with only 1 in 355.

One would think that based on an adult population of 230 million that with 1 in 100 in jail or prison that our country must be full of murderers, rapists, and thieves. How do we manage to leave our homes without being raped, robbed, or murdered?

Maybe the reason we have so many Americans behind bars has to do with something else: too many “crimes” which do not violate the rights of a non-consenting other. Maybe it is our laws that are the problem.

Gene Healy of the Cato Institute made the following observation in an article he wrote in 2005 called “Criminalization out of Control.”

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress. [Emphasis mine]

And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5-year-old girl.

One of our most destructive overcriminalization binges occurred during the “Just Say No” era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.

This Pew study bears this out as the study states:

In short, experts say, expanding prisons will accomplish less and cost more than it has in the past.

[…]

[W]ith one in 100 adults looking out at this country from behind an expensive wall of bars, the potential of new approaches cannot be ignored.

There is, however, some good news that perhaps some of these new approaches are not being ignored. The report also found that states are learning that incarceration is not always the best answer. Some states are taking another look at their mandatory minimum sentencing statutes and have begun to prioritize the limited space based on violent offenses vs. nonviolent offenses. More states are also giving “drug courts” and treatment programs for nonviolent drug offenders another look as an alternative to incarceration. This could be a big step in the right direction given that drug offenses account for 53.5% of the national prison population.

Still, there is much work to be done in reforming our broken criminal justice system due in large part to the war on (some) drugs and mandatory minimum sentencing.

Hat Tip: Cato Daily Dispatch for February 29, 2008

Two Victories on the Mandatory Minimums Front

WASHINGTON – The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established by the U.S. Sentencing Commission, at Congress’ direction. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences.

In a time when 5-4 Supreme Court rulings are the norm, this 7-2 ruling is a strong signal that the courts should have more discretion when sentencing individuals. Some may call this ruling “judicial activism” and one could probably make that case. But assuming that this is judicial activism, I would argue that the courts are constitutionally held to an even higher duty to make sure the punishment fits the crime; to do justice. When the prescribed punishment violates common sense, then judicial activism is completely appropriate (see my posts about Genarlow Wilson here, here, and here). We cannot reasonably expect the courts to be reasonable if state and federal laws tie the hands of the judges with unreasonable mandatory minimum sentencing laws.

The article continues:

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

Justice Ruth Bader Ginsburg, writing for the majority, said, “A reviewing court could not rationally conclude that it was an abuse of discretion” to cut four years off the guidelines-recommended sentence for Kimbrough.

Justices Samuel Alito and Clarence Thomas dissented.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change.
The commission is scheduled to vote Tuesday afternoon on the retroactive application of the crack cocaine guideline amendment that went into effect on Nov. 1. The commission has estimated 19,500 inmates could apply for sentence reductions under the proposal.

I certainly hope these 19,500 inmates do just that; these 19,500 spots would serve us all better if they were taken by violent criminals who are a genuine threat to the life, liberty, and property of us all.

The Supreme Court also made a ruling on another mandatory minimums case:

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

The sentence was reasonable, Justice John Paul Stevens said in his majority opinion. Alito and Thomas again dissented.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Another case of judicial activism? The court was once again correct to choose probation over prison. Mr. Gall had already taken steps to be a productive, law abiding citizen. What good would come of putting an already rehabilitated individual into the prison system? These are only questions which can be answered by a judge or a jury; not an arbitrary one-size-fits-all mandatory minimum sentencing law.

The Broader Implications of the Genarlow Wilson Verdict

Last week’s 5-4 Georgia Supreme Court ruling in the Genarlow Wilson case is not only great news for Genarlow Wilson but also great news for others who have found themselves in a similar situation. With the ruling being as close as it was it’s clear that the court could have easily ruled the other way.

How is it that 4 of the justices arrived at the conclusion that Genarlow Wilson’s punishment was not cruel and unusual punishment? The dissent written by Justice George Carley explains:

(dissent pages 14-16)

[T]oday’s decision is rare because of its unprecedented disregard for the General Assembly’s constitutional authority to make express provision against the giving of any retroactive effect to its legislative lessening of the punishment for criminal offenses. If, notwithstanding a provision such as § 30 (c), the judiciary is permitted to determine that a formerly authorized harsher sentence nevertheless constitutes cruel and unusual punishment, then it necessarily follows that there are no circumstances in which the General Assembly can insulate its subsequent reduction of a criminal sentence from possible retroactive application by courts.

It seems that the main complaint by the court’s minority is that the court usurped the state’s legislative authority; perhaps the minority has a point. Justice Carley cites language from the 2006 bill which plainly states that individuals charged prior to the bill’s effective date of July 1, 2006 would be punished according to the old law (this would include Genarlow Wilson).

Regardless of the legislative intent, this seems unjust. Why should an individual who was charged the day before the law’s effective date be subject to a 10 year sentence while another individual commits the same exact crime one day later be sentenced to perhaps a year? Cruel and unusual punishment is prohibited by both the Georgia State Constitution and the U.S. Constitution. At some point or another, these justices each undertook an oath to defend these constitutions. While the minority can make the case that they upheld their oath by recognizing the separation of powers, the majority could make the argument that they upheld their oaths by their interpretation of what constitutes cruel and unusual punishment despite the intentions of the Georgia Assembly.

As a lay person, I cannot say which side is technically correct; one side is likely in error. But in cases where there is a grey area in the law, judges should err on the side of common sense, liberty, and justice. This is the side the court’s majority came down on.

Wilson is certainly not the only defendant convicted of aggravated child molestation who benefits at the expense of today’s judicial reduction of the General Assembly’s power to legislate. At present, any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to Wilson are, as a matter of law, entitled to be completely discharged from lawful custody even though the General Assembly expressly provided that their status as convicted felons would not be affected by the very statute upon which the majority relies to free them. […] Moreover, nothing in today’s decision limits its application to cases involving minors who engage in voluntary sexual acts. Any defendant who was ever convicted in this state for the commission of any crime for which the sentence was subsequently reduced is now entitled to claim that his harsher sentence, though authorized under the statute in effect at the time it was imposed, has since become cruel and unusual and that, as a consequence, he is not only entitled to the benefit of the more lenient sentence, but should be released entirely from incarceration. […]Accordingly, as a result of this “rare case,” the superior courts should be prepared for a flood of habeas corpus petitions filed by prisoners who seek to be freed from imprisonment because of a subsequent reduction in the applicable sentences for the crimes for which they were convicted.

Others who have been convicted and punished in circumstances similar to that of Genarlow Wilson will seek to overturn their convictions as well? I should hope so! Maybe the minority should think about the overall intent of both the old and the new laws: to protect children from child molesters. How is imprisoning teenagers who engage in sexual acts with other teenagers protecting children? What would be the benefit of registering Genarlow Wilson as a sex offender? As a parent of three small children, I want only the real predators to be registered. I don’t want to look at a neighborhood sex offender map on the internet and wonder which predators are real and which ones made typical bad choices when they were teenagers.

The effect of registering sex offenders (legitimately or not) has other negative consequences as well. Registered sex offenders have difficulty finding employment, housing, and many other freedoms we take for granted. What happens to an individual who cannot find work or a home? The likelihood is s/he engages in other dangerous criminal activity for sustenance such as burglary, drug trafficking, and/or prostitution (the latter 2 should not be crimes and have similar consequences which lead to real crimes).

This isn’t to say that I want to make life easy for genuine sex offenders – far from it. The answer is not the one-size-fits-all mandatory minimum sentencing laws but to punish offenders of each case based on the facts of each case using common sense. If a judge or jury finds that an individual is one who will likely offend again, then there should be no discussions of registration but incarceration. It should be extremely difficult if not impossible for a child molester to ever re-enter society.

Hopefully, this case surrounding Genarlow Wilson will start a discussion around the country about mandatory minimum sentences and the way we have chosen to deal with sex offenders. Its time to take a step back and examine our emotional response to these issues and search for more reasonable policies.

Bill O’Reilly’s Ignorance on Display

This 5 minute video clip from Bill O’Reilly’s The O’Reilly Factor is a little old but I just discovered it at the Reason.tv website. In this clip, O’Reilly confronts Reason Magazine’s Jacob Sullum who just wrote the book Saying Yes: In Defense of Drug Use. While don’t agree that recreational drug use is a positive thing, Sullum makes other very good points regarding the problems associated with the war on (some) drugs (I also suspect Sullum chose this provocative title to bait the media into bringing attention to his book. Good move!)

Anyone else notice how Mr. O’Reilly cut off Sullum when he had a valid point or would simply dismiss it as “spin”? I would so love to see O’Reilly debate Sullum or someone else who has a firm grasp of the issue in an Oxford style debate (such as NPR does in its Intelligence Squared program). In a format where O’Reilly cannot shout down, cut the mic, or interrupt his opponent, he would be torn to shreds by someone like Sullum (and thus very entertaining to observe).

I was also very annoyed when he described Mr. Sullum as “libertine” even as Mr. Sullum explained that liberty and responsibility for one’s own actions are inseparable. It seemed to me that they actually agreed that individuals should be free to do as they wish, provided that they do not infringe on the life, liberty, or property of others (though I think this was lost on O’Reilly).

Would you like some “no spin” facts regarding the war on (some) drugs Mr. O’Reilly? Here’s some statistics from the Federal Bureau of Prisons on the makeup of the prison population. You tell me if drug prohibition has not contributed to our problem of overcrowded prisons.

Types of Offenses

Drug Offenses: 98,675 (53.5 %)

Weapons, Explosives, Arson: 26,676 (14.5 %)

Immigration: 19,589 (10.6 %)

Robbery: 9,405 (5.1 %)

Burglary, Larceny, Property Offenses: 6,836 (3.7 %)

Extortion, Fraud, Bribery: 8,201 (4.5 %)

Homicide, Aggravated Assault, and Kidnapping Offenses: 5,580 (3.0 %)

Miscellaneous: 2,082 (1.1 %)

Sex Offenses: 4,835 (2.6 %)

Banking and Insurance, Counterfeit, Embezzlement: 987 (0.5 %)

Courts or Corrections: 753 (0.4 %)

Continuing Criminal Enterprise: 572 (0.3 %)

National Security: 99 (0.1 %)

A Small Victory

If anyone has any doubts about whether or not the war on (some) drugs and mandatory minimum sentencing guidelines turn otherwise law abiding citizens into criminals, look no further than the injustice Richard Paey suffered in the State of Florida. To make a long story short: Paey received serious injuries in a car accident, his doctor prescribed pain medication, Paey moves to Florida, Paey could not find a doctor who would renew his prescriptions, Paey forges prescriptions to relieve his pain, Paey is arrested, convicted, and receives a mandatory minimum sentence of 25 ½ years.

Here’s the real kicker:

Everyone, including judges, acknowledged the traffic accident victim was using the pills for debilitating pain. And since his incarceration, prison doctors have hooked him up to a morphine drip, which delivers more narcotics in about two days than he was convicted of trafficking.

That’s right: the mandatory minimum sentencing guidelines for “drug trafficking” tied the judges’ hands. A strict interpretation of the Florida law meant this wheelchair bound “criminal” required this harsh sentence. The only hope for Richard Paey would be to receive a commuted sentence or a pardon from the governor; a very unlikely scenario.

http://i1.wp.com/media.miamiherald.com/smedia/2007/09/20/21/849-PAEYStory.embedded.prod_affiliate.56.jpg?w=860

But that unlikely scenario became a reality today when Florida Governor Charlie Crist gave Richard Paey a full pardon—a development which went beyond his own legal team’s request to commute his sentence. Richard Paey was wheeled out of prison by a prison guard a free man with all of his civil rights restored!

The state’s parole commission recommended denying clemency for Paey, who was only seeking to have his prison sentence commuted. But after his lawyer, wife and four children wept and pleaded for Paey’s release, Crist and the Cabinet went further than Paey expected by unanimously agreeing to grant him a full pardon — meaning he’ll have the right to vote and carry firearms.

They also acknowledged that the state’s drug laws might be unfair.

”This is not a pleasant case,” said Attorney General Bill McCollum, who noted that he supported mandatory-minimum sentences when he was in Congress. “Our laws are very much to blame.”

The state’s drug laws might be unfair? Gee, do ya think! Hopefully the AG’s realization of these unfair laws will extend to Florida legislators and legislators throughout the country. No fair human being could suggest that Richard Paey should serve hard time for merely relieving his pain.

But so are the prosecutors in Pasco County [to blame], said Paey’s wife, Linda Paey, who said she couldn’t understand why they zealously pursued her husband through three trials despite the widespread acknowledgement that he was a pain victim and not a drug dealer.

”I’ve changed. I no longer trust the police. I don’t trust the justice system,” she said. “Only the media got our case right.”

Crist, too, took a swipe at the prosecutors, saying the war on drugs itself isn’t just to blame in cases such as this. ”If they’re prosecuted appropriately, then justice will be done,” he said. “Obviously, this case cries out for a review of that process.”

Crist may be right in blaming the prosecutors for their overzealousness. After all, where was this overzealousness whenever former Florida Governor Jeb Bush’s daughter was busted for a similar crime? Noelle Bush received nowhere near the punishment as did Richard Paey (Oh, I forgot; politicians and their families play by different rules). But prosecutorial overzealousness not withstanding; these mandatory minimum sentencing laws are subject to interpretation both by judges and prosecutors. One prosecutor might decide to file the mandatory minimum charges while another might decide not to. If the law is a bad law, there will be prosecutors who will bring the charges and judges who will rule based on their understanding of the law. Crist can further help right this wrong by pushing the Florida legislature to repeal these draconian laws.

While we may have to contend with this mandatory minimums madness for at least a little while longer, at least for one man the nightmare is over…hopefully.

Hat tip: Radley Balko

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