America is in the throes of "overcriminalization."
We are making and enforcing far too many criminal laws that create traps for the innocent but unwary -- and threaten to turn otherwise respectable, law-abiding citizens into criminals. Consider a few examples from the new book "One Nation Under Arrest":
· A 12-year old girl arrested and handcuffed for eating a single french fry on the Washington subway system.
· A cancer-ridden grandmother arrested and criminally charged for refusing to trim her hedges the way officials in Palo Alto, Calif., were trying to force her to.
A former high-school science whiz kid sent to prison after initially being arrested by FBI agents clad in SWAT gear for failing to affix a federally mandated sticker to his otherwise legal UPS package.
· A 67-year-old retired husband and grandfather imprisoned because some of the paperwork for his home-based orchid business did not satisfy an international treaty.
I could go on, but all these stories share one thing in common -- they are about typical Americans. Most involve a man or woman who works hard and pays taxes, cares for family members and is a good neighbor. Perhaps above all, this person strives to stay on the right side of the law.
This typical American holds deep and often intuitive beliefs in basic principles about American government, including a belief that, if you do what's right, you have nothing to fear from your own government, and certainly not from the criminal justice system.
But the typical American's deeply held beliefs about the freedoms he cherishes and the fundamental principles of his government are no longer as well-founded as they once were. Today, he is far more vulnerable than ever before to being caught up in a criminal investigation and prosecution -- and to actually being convicted and punished as a criminal -- for having done something he did not even suspect was illegal.
Criminal law has changed in the past 50 years. Once criminal law was about criminal acts that everyone knew were inherently unlawful (like murder, rape and robbery). Limiting criminal punishment to conduct that is inherently wrongful restricted governmental power in two important ways.
First, and most important, it kept the range of governmental power small. Having few criminal laws and a short list of things not to be done limited the scope within which government can exercise its authority.
Second, a limited criminal law served a teaching function. It reflected the beliefs and understandings common to the vast majority of our citizens -- the very citizens who were subject to the criminal law.
Today, the criminal law has grown as broad as the regulatory state in its sheer size and scope. In 1998, an American Bar Association task force estimated that there were more than 3,000 federal criminal offenses scattered throughout the 50 titles of the United States Code.
Just six years later, a leading expert on the overcriminalization problem, Professor John S. Baker Jr., published a study estimating that the number exceeded 4,000. As the ABA task force reported, the body of federal criminal law is "so large ...that there is no conveniently accessible, complete list of federal crimes."
If "ignorance of the law is no excuse," then every American citizen -- literally, every single one -- is ignorant and in peril, for nobody can know all the laws that govern their behavior.
A just criminal justice system, in the best sense of the word "just," has a twofold goal. One is to see that criminals are prosecuted, convicted and appropriately punished. The other is to ensure that those who are innocent are either not prosecuted in the first instance or, if mistakenly prosecuted, are not convicted. Today, our system fails the second of those goals.
Much is at stake for our freedoms and the freedoms of future generations. The problem of overcriminalization merits extensive study and debate by legal experts and policymakers, as well as average Americans, whose fundamental liberty is most at stake. Many constructive changes could make our justice system fairer and more just, and improve its ability to deter wrongdoing and punish real criminals. Taking the steps necessary to ensure that American criminal law once again routinely exemplifies the right principles and purposes will require much work, but the alternative is to distort the American criminal justice system, and jeopardize the American people.
By EDWIN MEESE III, NATIONAL VOICE
April 26, 2010 12:05 AM
Meese, a former U.S. attorney general, is chairman of the Center for Legal and Judicial Studies at The Heritage Foundation.
Tuesday, April 27, 2010
Friday, April 23, 2010
Criminal Justice Reform in South Carolina:
Gov. Mark Sanford formally threw his support behind a far-reaching sentencing reform bill Wednesday, a bill that supporters say will reduce the number of non-violent offenders in prison and save the state millions of dollars. "You can only squeeze so much blood from a turnip," Sanford said. "This really is a taxpayer issue."
The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.
It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.
And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.
"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...
Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago. Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years. He and several supporters talked about this bill being ruled by statistics rather than emotions. "Don't underestimate that first step in this state's history," he said.
The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.
It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.
And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.
"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...
Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago. Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years. He and several supporters talked about this bill being ruled by statistics rather than emotions. "Don't underestimate that first step in this state's history," he said.
Monday, April 12, 2010
Program would stop wasting money, lives
Florida spends more than a billion dollars a year warehousing people with mental illness in prisons, locked forensic treatment facilities and local jails. They are among the most wasteful dollars the state spends. Mentally ill defendants are provided treatment until they are competent to stand trial, then they are typically released only to be arrested again. An effort to change this paradigm has been in the works for years. On Tuesday, a Senate committee is expected to consider a pilot program to bring this population into highly managed community care. This an opportunity to stop wasting moneys and lives.
By using state resources differently, Florida's mentally ill residents can be treated and avoid the revolving door of jail and the streets. Under a plan proposed by the Department of Children and Families, the mentally ill accused of relatively low-level crimes would be diverted into locked community-based residential treatment facilities. Once stabilized, these individuals would be provided a continuum of care and monitoring in community-living settings.
Many mentally ill residents could live law-abiding lives if they had access to regular treatment and services. The DCF program would use case managers and other professionals to track their progress and help them obtain federal benefits to reach some level of self-sufficiency.
But DCF cannot launch its diversion experiment without changes to state law. The department needs the flexibility to shift up to 5 percent of funding from forensic treatment beds. It also needs permission to seek federal Medicaid dollars for indigent mentally ill criminal defendants in the program.
The Senate Criminal Justice Committee on Tuesday will consider a bill, SB 2612, that would create a forensic mental health probation and parole program in the Department of Corrections and authorize mental health courts throughout the state. Its sponsor, Sen. Ronda Storms, R-Brandon, should allow the changes that DCF seeks to be amended into her bill. That would get the pilot program moving this session.
A nudge from Senate President Jeff Atwater of North Palm Beach, who wants to be the state's next chief financial officer, also would help. Allowing this creative experiment would fit in nicely with a candidate for an office that looks out for Florida's long-term fiscal interests.
The mentally ill people who qualify for the diversion program would otherwise land in a state forensic hospital at a cost of more than $60,000. Then they would take a plea agreement — as roughly 80 percent do — and be released without any treatment or services. The sensible choice for Florida is to give the pilot program a try.
A St. Petersburg Times editorial
Published Friday, April 9, 2010
By using state resources differently, Florida's mentally ill residents can be treated and avoid the revolving door of jail and the streets. Under a plan proposed by the Department of Children and Families, the mentally ill accused of relatively low-level crimes would be diverted into locked community-based residential treatment facilities. Once stabilized, these individuals would be provided a continuum of care and monitoring in community-living settings.
Many mentally ill residents could live law-abiding lives if they had access to regular treatment and services. The DCF program would use case managers and other professionals to track their progress and help them obtain federal benefits to reach some level of self-sufficiency.
But DCF cannot launch its diversion experiment without changes to state law. The department needs the flexibility to shift up to 5 percent of funding from forensic treatment beds. It also needs permission to seek federal Medicaid dollars for indigent mentally ill criminal defendants in the program.
The Senate Criminal Justice Committee on Tuesday will consider a bill, SB 2612, that would create a forensic mental health probation and parole program in the Department of Corrections and authorize mental health courts throughout the state. Its sponsor, Sen. Ronda Storms, R-Brandon, should allow the changes that DCF seeks to be amended into her bill. That would get the pilot program moving this session.
A nudge from Senate President Jeff Atwater of North Palm Beach, who wants to be the state's next chief financial officer, also would help. Allowing this creative experiment would fit in nicely with a candidate for an office that looks out for Florida's long-term fiscal interests.
The mentally ill people who qualify for the diversion program would otherwise land in a state forensic hospital at a cost of more than $60,000. Then they would take a plea agreement — as roughly 80 percent do — and be released without any treatment or services. The sensible choice for Florida is to give the pilot program a try.
A St. Petersburg Times editorial
Published Friday, April 9, 2010
Thursday, April 01, 2010
Planted Evidence Results in Conviction
Unfortunately, some law enforcement officers are not satisified with collecting actual evidence in criminal investigations. Recently there has been documentation that evidence planting is a legitimate problem, as is shown in the article found at:
http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-csi-evidence-tampering,0,1982587.story
http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-csi-evidence-tampering,0,1982587.story
Wednesday, March 24, 2010
"Cash Register Justice" in Florida
Florida's practice of financing its criminal justice system with fees from the indigent creates a vicious cycle of debt for ex-offenders that threatens their successful re-entry into society, according to a new Brennan Center report released today.
Since 1996, the study shows, the Sunshine state has added more than 20 new categories of financial obligations to those accused and convicted of a crime. The fees are levied even on those who have no money and cannot pay. Increasingly, the result is a self-perpetuating cycle of debt -- and sometimes further incarceration -- for those re-entering society after prison.
The new study shows that the Florida legislature increasingly relies on "user fees" paid by indigent defendants to finance not just the criminal justice system but other state operations as well.
"As unemployment hovers around 10 percent, it is time to consider whether heaping more debt on those unable to afford it is a sensible and moral approach to financing state functions," said Rebekah Diller, author of The Hidden Costs of Florida's Criminal Justice Fees. "For many reasons, this is simply bad public policy."
The report also raises key questions about the efficiency of the practice. Many of these fees are uncollectible, leaving the court system underfunded. In some places, collection costs are borne partly by counties and court clerks, and the adjudication of fee payments incurs even more costs.
Among the findings:
1. The Florida Legislature has eliminated payment exemptions for the indigent, thus demanding revenue from a population unable to pay;
2. In Leon County, collection practices resulted in more than 800 arrests for failure to appear at debt hearings and more than 20,000 hours of jail time alone in one year.
3. Florida routinely suspends drivers' licenses for failure to make payments, a practice that sets the debtor up for a vicious cycle of "driving with a suspended license" convictions;
4. Florida allows private debt collection firms to add up to a 40 percent surcharge on unpaid debt.
Among the recommendations:
1. The Legislature should exempt those unable to pay criminal justice fees from legal financial obligations;
2. Payment plans should be tailored to an individual's ability to pay, as state law already requires;
3. Florida's Supreme Court should adopt court rules to end the new debtors' prison;
4. Counties can save money by eliminating debt-related arrests for failure to appear and resulting incarceration in already crowded jails.
Florida's increasing reliance on fee revenue coincides with a rising concern about policies that affect massive numbers of Floridians with a criminal conviction. Florida has the third-largest prison population of any state. Nearly 90 percent of the more than 100,000 people currently in Florida's state prisons will be released, and, if past trends persist, nearly one-third will be re-incarcerated for a new crime.
The report also offers longer-term reforms, such as reconsidering legal financial obligations in felony cases.
Since 1996, the study shows, the Sunshine state has added more than 20 new categories of financial obligations to those accused and convicted of a crime. The fees are levied even on those who have no money and cannot pay. Increasingly, the result is a self-perpetuating cycle of debt -- and sometimes further incarceration -- for those re-entering society after prison.
The new study shows that the Florida legislature increasingly relies on "user fees" paid by indigent defendants to finance not just the criminal justice system but other state operations as well.
"As unemployment hovers around 10 percent, it is time to consider whether heaping more debt on those unable to afford it is a sensible and moral approach to financing state functions," said Rebekah Diller, author of The Hidden Costs of Florida's Criminal Justice Fees. "For many reasons, this is simply bad public policy."
The report also raises key questions about the efficiency of the practice. Many of these fees are uncollectible, leaving the court system underfunded. In some places, collection costs are borne partly by counties and court clerks, and the adjudication of fee payments incurs even more costs.
Among the findings:
1. The Florida Legislature has eliminated payment exemptions for the indigent, thus demanding revenue from a population unable to pay;
2. In Leon County, collection practices resulted in more than 800 arrests for failure to appear at debt hearings and more than 20,000 hours of jail time alone in one year.
3. Florida routinely suspends drivers' licenses for failure to make payments, a practice that sets the debtor up for a vicious cycle of "driving with a suspended license" convictions;
4. Florida allows private debt collection firms to add up to a 40 percent surcharge on unpaid debt.
Among the recommendations:
1. The Legislature should exempt those unable to pay criminal justice fees from legal financial obligations;
2. Payment plans should be tailored to an individual's ability to pay, as state law already requires;
3. Florida's Supreme Court should adopt court rules to end the new debtors' prison;
4. Counties can save money by eliminating debt-related arrests for failure to appear and resulting incarceration in already crowded jails.
Florida's increasing reliance on fee revenue coincides with a rising concern about policies that affect massive numbers of Floridians with a criminal conviction. Florida has the third-largest prison population of any state. Nearly 90 percent of the more than 100,000 people currently in Florida's state prisons will be released, and, if past trends persist, nearly one-third will be re-incarcerated for a new crime.
The report also offers longer-term reforms, such as reconsidering legal financial obligations in felony cases.
Tuesday, March 09, 2010
Do away with Collections Court
Saturday, February 27, 2010
The role of the Grand Jury in investigating instances of public corruption is frequently overlooked. While the Grand Jury is given instructions by the Court at the beginning of their term, many who serve do not realize that they may investigate wrong-doing, independently, and not just at the direction of the State Attorney. At the link that follows is a great discussion of this issue, out of Broward County, where there have been ongoing problems with potential corruption in local government.
http://jaablog.jaablaw.com/2010/02/25/joe-kollin-on-the-grand-jury.aspx
http://jaablog.jaablaw.com/2010/02/25/joe-kollin-on-the-grand-jury.aspx
Thursday, February 25, 2010
Smart Crimial Justice Reform
Subtitled: "Achieving a safer, more just, and fiscally responsible justice system in Florida." This is must read from the Collins Center for Public Policy.
If the link does not work, copy and paste the following into your browser:
http://www.collinscenter.org/resource/resmgr/smart_justice/justice_report_--_final_edit.pdf
If the link does not work, copy and paste the following into your browser:
http://www.collinscenter.org/resource/resmgr/smart_justice/justice_report_--_final_edit.pdf
Monday, February 15, 2010
True Reform Gains Support in Florida
Gov. Charlie Crist, once known for his support of prison chain gangs, is embracing an inmate rehabilitation effort often seen as "soft on crime."
The new mind-set, also welcomed by top Republican lawmakers, is not a change of heart from the lock-'em-up policies that dominated the past decade. Rather, it indicates how Florida's dire budget situation is making officials rethink the link between crime and punishment.
The shift is notable, given that Republicans are leading the discussion during an election year.
"I think that justice calls for many facets," Crist said Friday. "But I also think if there are individuals who can turn their lives around and get a second chance, especially youth, that's a worthy cause."
Nearly 90 percent of inmates will eventually leave prison, and one in three will commit a new crime within three years. If state prison officials trim recidivism by just 1 percent, they will save $8 million a year.
"Particularly in austere budget times, re-entry (programs) really make good business and public safety sense," Florida Department of Corrections Secretary Walt McNeil said. "It comes from the lock-them-up-and-throw-away-the-key (policies) — the evidence shows it has not been very effective."
As the state's chief warden, McNeil began preaching these reforms years ago.
But the political winds didn't change until June when three former Florida attorneys general, a retired Department of Corrections secretary and the state's powerful business lobby wrote a letter to Crist asking him to halt spending for new prison construction as available dollars grew scarce.
Each inmate costs state taxpayers $20,000 a year, and the prison population now tops 100,000, statistics show. The number of inmates is projected to grow 15 percent in coming years — an unsustainable pace, the group said.
In his executive budget, Crist proposed no money for new prisons and diverted funding for prison work camps to re-entry centers where the state assists inmates' transition into the community through job training and social services.
The thinking is spreading even to the Legislature, which in recent years has approved measures to abolish parole and implement minimum required sentences for offenders.
"The prudence of spending has helped to humanize the issue of incarceration," said state Rep. Darryl Rouson, D-St. Petersburg, a lawyer who is a recovering alcoholic and drug addict.
For years when offenders left prison, the state gave them $100 and a bus ticket. But in recent presentations to lawmakers, state officials tout a program with space for 5,500 inmates that helps them find jobs and learn life skills — both keys to reducing recidivism.
It's about public safety, officials contend, not coddling criminals. And reducing crime means fewer victims in the future.
"We can measure the bad stuff but never capture all the bad things that didn't happen," said Rebecca Wolf-Reynal, a probation supervisor in Pinellas County who organizes re-entry programs.
The corrections agency is expanding these re-entry hubs in each of the state's four regions for inmates who have less than three years left in prison.
The re-entry facilities operate in conjunction with work release centers that help offenders find jobs before they are released.
Once the program reaches full speed, the state will serve nearly 7,000 inmates at any given time, though the agency wants to expand even further.
Gordon Lee Jr. participated in voluntary re-entry classes after serving 18 years in prison for a slew of drug charges. He left prison at age 40 with dim hopes after seeing others released only to return.
"They went back to the same environment with the same things and wound up with the same results," said Lee, now 42 and a supervisor at a car rental agency in Tampa. "But they taught me a lot of life skills. They made me feel like I had a chance."
The agency's new focus on helping offenders is bolstering a broader examination of how the state punishes criminals.
This year, House Bill 23, the "Second Chance for Children in Prison Act" — once deemed dead on arrival — is getting another look.
The legislation would allow the state's parole board to reconsider lengthy prison sentences given to youthful offenders. The sponsor, state Rep. Mike Weinstein, a Jacksonville Republican, is a prosecutor.
The bill also illustrates the difficulty faced by legislation perceived as being lenient on criminals. When Weinstein introduced the bill two years ago, he was labeled a "liberal." In a recent committee hearing, he began with a disclaimer: "This isn't a massive prison release system."
"Republicans worked a long time to do away with parole and some of them were reluctant to even crack the door," Weinstein said. "But the pendulum is coming the other way."
But not all lawmakers are softening their views. Other measures to add to the "hate crimes" statute and enhance the eligibility for the death penalty continue to get broad support.
"The No. 1 priority should always be public safety," said Republican Sandy Adams, the chairwoman of the House criminal justice budget committee and a former sheriff's deputy. "I don't believe we need to let criminals out of institutions just for budget purposes."
A number of law enforcement officials see it differently, including Hillsborough County Sheriff David Gee. "The only way to take (public safety) to the next level is through a good re-entry and recidivism program," he said. "When people listen to the facts, they are starting to understand."
published in the St. Petersburg Times on February 15, 2010
The new mind-set, also welcomed by top Republican lawmakers, is not a change of heart from the lock-'em-up policies that dominated the past decade. Rather, it indicates how Florida's dire budget situation is making officials rethink the link between crime and punishment.
The shift is notable, given that Republicans are leading the discussion during an election year.
"I think that justice calls for many facets," Crist said Friday. "But I also think if there are individuals who can turn their lives around and get a second chance, especially youth, that's a worthy cause."
Nearly 90 percent of inmates will eventually leave prison, and one in three will commit a new crime within three years. If state prison officials trim recidivism by just 1 percent, they will save $8 million a year.
"Particularly in austere budget times, re-entry (programs) really make good business and public safety sense," Florida Department of Corrections Secretary Walt McNeil said. "It comes from the lock-them-up-and-throw-away-the-key (policies) — the evidence shows it has not been very effective."
As the state's chief warden, McNeil began preaching these reforms years ago.
But the political winds didn't change until June when three former Florida attorneys general, a retired Department of Corrections secretary and the state's powerful business lobby wrote a letter to Crist asking him to halt spending for new prison construction as available dollars grew scarce.
Each inmate costs state taxpayers $20,000 a year, and the prison population now tops 100,000, statistics show. The number of inmates is projected to grow 15 percent in coming years — an unsustainable pace, the group said.
In his executive budget, Crist proposed no money for new prisons and diverted funding for prison work camps to re-entry centers where the state assists inmates' transition into the community through job training and social services.
The thinking is spreading even to the Legislature, which in recent years has approved measures to abolish parole and implement minimum required sentences for offenders.
"The prudence of spending has helped to humanize the issue of incarceration," said state Rep. Darryl Rouson, D-St. Petersburg, a lawyer who is a recovering alcoholic and drug addict.
For years when offenders left prison, the state gave them $100 and a bus ticket. But in recent presentations to lawmakers, state officials tout a program with space for 5,500 inmates that helps them find jobs and learn life skills — both keys to reducing recidivism.
It's about public safety, officials contend, not coddling criminals. And reducing crime means fewer victims in the future.
"We can measure the bad stuff but never capture all the bad things that didn't happen," said Rebecca Wolf-Reynal, a probation supervisor in Pinellas County who organizes re-entry programs.
The corrections agency is expanding these re-entry hubs in each of the state's four regions for inmates who have less than three years left in prison.
The re-entry facilities operate in conjunction with work release centers that help offenders find jobs before they are released.
Once the program reaches full speed, the state will serve nearly 7,000 inmates at any given time, though the agency wants to expand even further.
Gordon Lee Jr. participated in voluntary re-entry classes after serving 18 years in prison for a slew of drug charges. He left prison at age 40 with dim hopes after seeing others released only to return.
"They went back to the same environment with the same things and wound up with the same results," said Lee, now 42 and a supervisor at a car rental agency in Tampa. "But they taught me a lot of life skills. They made me feel like I had a chance."
The agency's new focus on helping offenders is bolstering a broader examination of how the state punishes criminals.
This year, House Bill 23, the "Second Chance for Children in Prison Act" — once deemed dead on arrival — is getting another look.
The legislation would allow the state's parole board to reconsider lengthy prison sentences given to youthful offenders. The sponsor, state Rep. Mike Weinstein, a Jacksonville Republican, is a prosecutor.
The bill also illustrates the difficulty faced by legislation perceived as being lenient on criminals. When Weinstein introduced the bill two years ago, he was labeled a "liberal." In a recent committee hearing, he began with a disclaimer: "This isn't a massive prison release system."
"Republicans worked a long time to do away with parole and some of them were reluctant to even crack the door," Weinstein said. "But the pendulum is coming the other way."
But not all lawmakers are softening their views. Other measures to add to the "hate crimes" statute and enhance the eligibility for the death penalty continue to get broad support.
"The No. 1 priority should always be public safety," said Republican Sandy Adams, the chairwoman of the House criminal justice budget committee and a former sheriff's deputy. "I don't believe we need to let criminals out of institutions just for budget purposes."
A number of law enforcement officials see it differently, including Hillsborough County Sheriff David Gee. "The only way to take (public safety) to the next level is through a good re-entry and recidivism program," he said. "When people listen to the facts, they are starting to understand."
published in the St. Petersburg Times on February 15, 2010
Sunday, January 10, 2010
Prisoners of Parole:
IN 2004, STEVEN ALM, a state trial judge in Hawaii, was frustrated with the cases on his docket. Nearly half of the people appearing before him were convicted offenders with drug problems who had been sentenced to probation rather than prison and then repeatedly violated the terms of that probation by missing appointments or testing positive for drugs. Whether out of neglect or leniency, probation officers would tend to overlook a probationer’s first 5 or 10 violations, giving the offender the impression that he could ignore the rules. But eventually, the officers would get fed up and recommend that Alm revoke probation and send the offender to jail to serve out his sentence. That struck Alm as too harsh, but the alternative — winking at probation violations — struck him as too soft. “I thought, This is crazy, this is a crazy way to change people’s behavior,” he told me recently.
So Alm decided to try something different. He reasoned that if the offenders knew that a probation violation would lead immediately to some certain punishment, they might shape up. “I thought, What did I do when my son was young?” he recalled. “If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.” Working with U.S. marshals and local police, Alm arranged for a new procedure: if offenders tested positive for drugs or missed an appointment, they would be arrested within hours and most would have a hearing within 72 hours. Those who were found to have violated probation would be quickly sentenced to a short jail term proportionate to the severity of the violation — typically a few days.
Alm mentioned his plan to the public defender, who suggested that it was only fair to warn probationers that the rules were going to be strictly enforced for the first time. Alm agreed, and on Oct. 1, 2004, he held a hearing for 18 sex offenders, followed by another one for 16 drug offenders. Brandishing a laminated “Wanted” poster, he told them: “I can guarantee that everyone in this courtroom wants you to succeed on probation, but you have not been cutting it. From now on, you’re going to follow all the rules of probation, and if you don’t, you’re going to be arrested on the spot and spend some time in jail right away.” He called the program HOPE, for Hawaii’s Opportunity Probation With Enforcement, and prepared himself for a flood of violation hearings.
But they never materialized. There were only three hearings in the first week, two in the second week and none in the third. The HOPE program was so successful that it inspired scholars to evaluate its methods. Within a six-month period, the rate of positive drug tests fell by 93 percent for HOPE probationers, compared with a fall of 14 percent for probationers in a comparison group.
Alm had stumbled onto an effective strategy for keeping people out of prison, one that puts a fresh twist on some venerable ideas about deterrence. Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is. In the course of implementing HOPE, Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”
Judge Alm’s story is an example of a new approach to keeping people out of prison that is being championed by some of the most innovative scholars studying deterrence today. At its core, the approach focuses on establishing the legitimacy of the criminal-justice system in the eyes of those who have run afoul of it or are likely to. Promising less crime and less punishment, this approach includes elements that should appeal to liberals (it doesn’t rely on draconian prison sentences) and to conservatives (it stresses individual choice and moral accountability). But at a time when the size of the U.S. prison population is increasingly seen as unsustainable for both budgetary and moral reasons — the United States represents 5 percent of the world’s population and nearly 25 percent of the world’s prison population — the fact that this approach seems to work may be its biggest draw.
The HOPE program, if widely adopted as a model for probation and parole reform, could make a surprisingly large contribution to reducing the prison population. In many states, the majority of prison admissions come not from arrests for new crimes, as you might think, but from probation and parole violations. Nationwide, roughly two-thirds of parolees fail to complete parole successfully. Todd Clear, a professor at John Jay College of Criminal Justice in New York, estimates that by eliminating imprisonment across the nation for technical parole violations, reducing the length of parole supervision and ratcheting back prison sentences to their 1988 levels, the United States could reduce its prison population by 50 percent.
Some in government are beginning to take notice. In November, invoking the HOPE program as a model, the Democratic congressman Adam Schiff of California and his Republican colleague Ted Poe of Texas introduced legislation in the House that would create federal grants for states to experiment with courts that deliver swift, predictable and moderate punishment for those who violate probation.
There also appears to be a national audience for a broader conversation about new ways to shrink the prison population. Last year, a three-judge panel in California ordered the overcrowded state prison system — the largest in the country, with more than 170,000 prisoners at its peak — to reduce the inmate population by tens of thousands of prisoners within two years in order to comply with constitutional standards for medical and mental health care. Facing a tightening budget crisis in September, California legislators added to the pressure by demanding a reduction in the prison budget of $1.2 billion. In the U.S. Senate, Jim Webb of Virginia is leading a crusade for prison reform, insisting that fewer jail terms for nonviolent offenders can make America safer and more humane, while also saving money. And in the Obama administration, Attorney General Eric Holder is questioning the value of relentlessly expanding prisons. In July, he declared that “high rates of incarceration have tremendous social costs” and “diminishing marginal returns.”
The most effective way to shrink the prison population, of course, is not just to reform probation and parole but also to deter groups of potential lawbreakers from committing crimes in the first place. If, in addition to bringing down the numbers of probation and parole revocations, police officers and judges could also address the core problems of drug arrests and street violence, the United States might even be said to have solved its notorious prison problem. Is such an ambitious goal possible? While it might sound too good to be true, the HOPE-style thinking about deterrence offers a promising road map for addressing all these challenges.
ALTHOUGH HE ACTED on his own, Judge Alm did not design the HOPE program without inspiration. In the mid-1990s, when he was a U.S. attorney in Hawaii, Alm heard a presentation by David M. Kennedy, who is considered the patron saint of the new thinking about deterrence. Kennedy, who now teaches at John Jay College of Criminal Justice, spoke about Operation Ceasefire, a program he was designing to reduce youth violence in Boston. Along with his colleagues Anne M. Piehl and Anthony Braga, Kennedy worked with the head of the Youth Violence Strike Force, a division of the Boston Police Department. The police officer explained that while conventional deterrence hadn’t worked, he had begun to persuade gangs to behave by issuing a credible threat: namely, that when a gang attracted attention with notorious acts of violence, the entire gang — all of whose members likely had outstanding warrants or probation, parole or traffic violations — would be rounded up.
Kennedy recalls this today as a breakthrough moment in his thinking. Ever since the days of Cesare Beccaria, the 18th-century philosopher and death-penalty opponent, classical deterrence theorists had focused on credibly threatening individuals; Kennedy’s first innovation was to focus on increasing the legitimacy of law enforcement in the eyes of groups. “The legitimacy element has risen in my mind from being an important element of the strategy to the most important element,” Kennedy told me. Convinced that the best way to increase legitimacy was to enlist what he calls the “community’s moral voice,” Kennedy set out to deter the most dangerous young gang members by persuading their friends and neighbors to pressure them into obeying the law.
In May 1996, Kennedy, Piehl and Braga helped to design the first of what came to be known as “call-in” sessions, intended to put gangs on notice that they would face swift and certain punishments. Working with Kennedy, probation and parole officers ordered gang members to attend face-to-face meetings with the police. The gang members were given three warnings. First, they were told that if anyone in their group killed someone, the entire group would suffer consequences. Second, the gang members were told that if they want to escape from street life, they could get help and job training from social service agencies and churches. And finally, they heard from members of their community that violence was wrong and it had to stop. The results of the forums were striking and immediate. Within two years, youth violence in Boston fell by two-thirds and city homicide rates by about half.
Why was Operation Ceasefire so effective? One reason was that the warning hearings gave the gang members a sense of what to expect. Increasingly draconian sentences don’t always reduce crime, and sometimes increase it. (After increasing in the 1980s, crime fell by 25 percent in the 1990s, but states that put more people in jail had a smaller decline than states that imprisoned fewer.) In part, this is because many people actually don’t know the punishments they face.
In addition to offering knowledge, Operation Ceasefire provided certainty. The small numbers of gang members singled out meant they could trust that the police would be able to follow through on their threats. “If you can get people to behave by threatening them credibly, you’ll need less actual punishment than if you let them run wild and punish only occasionally,” says Mark A. R. Kleiman, author of the new book “When Brute Force Fails: How to Have Less Crime and Less Punishment.” Kleiman, whom Alm consulted soon after initiating the HOPE program, became interested in swift, certain and moderate punishment when he was a colleague of Kennedy’s years before. Lastly, Operation Ceasefire gave gang members an incentive to obey the law by promising that they would get positive reinforcement from their families and neighbors for changing their behavior.
In all of this, Kennedy’s insights were supported by a variety of recent research suggesting that people are more likely to obey the law when they view law enforcement as fair and legitimate. Tom Tyler, a psychology professor at New York University, has found that compliance with court orders is highest for offenders who perceive that they have experienced a fair process. And in a recent book, “American Homicide,” the Ohio State University historian Randolph Roth argues that throughout American history, the homicide rate has decreased when people trust that the government is stable and unbiased and believe in the legitimacy of the officials who run it. Similarly, the legal scholar Paul Butler argues in his new book, “Let’s Get Free: A Hip-Hop Theory of Justice,” that widespread incarceration in the 1980s and ’90s undermined the legitimacy of law enforcement in the eyes of the affected communities by converting a prison term into something heroic rather than stigmatic.
After Operation Ceasefire, Kennedy turned his attention from gangs to open-air drug markets. He set out to change how the criminal-justice system was viewed from the perspective of the offenders and their communities — and how the offenders and their communities were viewed by the police. As Kennedy told me, “I saw law enforcement believing plausible but untrue things about the communities they police” — namely, that the communities were corrupt and didn’t care about the violence that was destroying them — “and the communities believing untrue things about the police” — namely, that the cops were part of a racist conspiracy to lock up black offenders while overlooking white ones.
To correct what he calls a “corrosive and tragic mistake,” Kennedy came up with the idea of a kind of truth-and-reconciliation commission in which offenders would talk to the police accompanied by the people they trusted the most: their mothers. In 2003, working with James Fealy, the police chief in High Point, N.C., Kennedy arranged some preliminary meetings. Although Fealy had been shocked to learn that the community thought he and his officers were almost as bad as the drug dealers, Fealy, in turn, surprised community members by declaring that no one in law enforcement thought the drug war could be won.
These meetings prepared the groundwork for the strategy that followed. After identifying 16 active drug dealers, Fealy arrested four and then prepared warrants for the other 12 that could be signed whenever the police chose. He then called in the other dealers, nine of whom arrived accompanied by their mothers and other “influentials” like grandmothers, and delivered the following message to them as a group: “You could be in jail tonight. We don’t want to do that, we want to help you succeed, but you are out of the drug business.” The mothers and grandmothers, seemingly impressed by the decision not to arrest, cheered on the police. In subsequent meetings, the “influentials” shouted down naysayers, including a conspiracymonger who accused the C.I.A. of having created the crack epidemic to oppress black people. The drug market in the area dried up.
IN ADDITION TO influencing Judge Alm’s probation reform, Kennedy’s efforts to rethink deterrence have also inspired one of the most powerful recent models for national parole reform, which comes from Tracey Meares, a law professor at Yale. (Unlike probation, which involves a sentence instead of prison, parole involves supervision after part of the prison sentence has been served.) In 2002, Meares, who was then a law professor at the University of Chicago, was asked by the U.S. attorney in Chicago, Patrick Fitzgerald, to analyze how best to address crime in the city. She concluded that they should begin on the West Side, in West Garfield Park and the surrounding area, where rates of murder and gun violence were more than four times the city average. Fitzgerald suggested that they might implement a version of Project Exile, a controversial program in Virginia that sought to deter gun violence by threatening federal prosecutions — and a five-year mandatory minimum sentence — for repeat offenders convicted of illegal gun possession. But Project Exile had experienced only mixed success: federal prosecutors could prosecute only a small proportion of the gun cases submitted by the Richmond police. The threat of a severe sentence was, in effect, something of a bluff.
Meares told Fitzgerald that threats of zero tolerance wouldn’t work because they simply weren’t credible. Instead, Meares argued that law-enforcement officials should concentrate on specific groups of wrongdoers in ways they could accept as both reasonable and fair. Using Operation Ceasefire in Boston as a model, Meares identified everyone who had committed violent or gun-related crimes and had been released from prison and recently assigned to parole. She gathered them in random groups of no more than 20 for call-in sessions in what Meares calls “places of civic importance” — park buildings, local schools and libraries — where they sat at the same table as the police in order to create an egalitarian, nonconfrontational atmosphere. They then heard a version of Kennedy’s three-part presentation. The results of the program were drastic: there was a 37 percent drop in the average monthly homicide rate — the largest drop of any neighborhood in the city. Violent crime in Chicago today is at a 30 year low. “All these strategies are a way of signaling to groups of people that government agents view them with dignity, neutrality and trust, which is the best way of convincing them that the government has the right to hold them accountable for their behavior,” Meares told me.
From Kennedy and Kleiman to Alm and Meares, the judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets. But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical. Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.
A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step. The relative simplicity of the solutions, it turns out, is at the core of their radical potential.
by Jeffrey Rosen, a law professor at George Washington University, who is a frequent contributor to theNew York Times magazine. He is at work on a book about Louis Brandeis. Published 1/10/10
So Alm decided to try something different. He reasoned that if the offenders knew that a probation violation would lead immediately to some certain punishment, they might shape up. “I thought, What did I do when my son was young?” he recalled. “If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.” Working with U.S. marshals and local police, Alm arranged for a new procedure: if offenders tested positive for drugs or missed an appointment, they would be arrested within hours and most would have a hearing within 72 hours. Those who were found to have violated probation would be quickly sentenced to a short jail term proportionate to the severity of the violation — typically a few days.
Alm mentioned his plan to the public defender, who suggested that it was only fair to warn probationers that the rules were going to be strictly enforced for the first time. Alm agreed, and on Oct. 1, 2004, he held a hearing for 18 sex offenders, followed by another one for 16 drug offenders. Brandishing a laminated “Wanted” poster, he told them: “I can guarantee that everyone in this courtroom wants you to succeed on probation, but you have not been cutting it. From now on, you’re going to follow all the rules of probation, and if you don’t, you’re going to be arrested on the spot and spend some time in jail right away.” He called the program HOPE, for Hawaii’s Opportunity Probation With Enforcement, and prepared himself for a flood of violation hearings.
But they never materialized. There were only three hearings in the first week, two in the second week and none in the third. The HOPE program was so successful that it inspired scholars to evaluate its methods. Within a six-month period, the rate of positive drug tests fell by 93 percent for HOPE probationers, compared with a fall of 14 percent for probationers in a comparison group.
Alm had stumbled onto an effective strategy for keeping people out of prison, one that puts a fresh twist on some venerable ideas about deterrence. Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is. In the course of implementing HOPE, Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”
Judge Alm’s story is an example of a new approach to keeping people out of prison that is being championed by some of the most innovative scholars studying deterrence today. At its core, the approach focuses on establishing the legitimacy of the criminal-justice system in the eyes of those who have run afoul of it or are likely to. Promising less crime and less punishment, this approach includes elements that should appeal to liberals (it doesn’t rely on draconian prison sentences) and to conservatives (it stresses individual choice and moral accountability). But at a time when the size of the U.S. prison population is increasingly seen as unsustainable for both budgetary and moral reasons — the United States represents 5 percent of the world’s population and nearly 25 percent of the world’s prison population — the fact that this approach seems to work may be its biggest draw.
The HOPE program, if widely adopted as a model for probation and parole reform, could make a surprisingly large contribution to reducing the prison population. In many states, the majority of prison admissions come not from arrests for new crimes, as you might think, but from probation and parole violations. Nationwide, roughly two-thirds of parolees fail to complete parole successfully. Todd Clear, a professor at John Jay College of Criminal Justice in New York, estimates that by eliminating imprisonment across the nation for technical parole violations, reducing the length of parole supervision and ratcheting back prison sentences to their 1988 levels, the United States could reduce its prison population by 50 percent.
Some in government are beginning to take notice. In November, invoking the HOPE program as a model, the Democratic congressman Adam Schiff of California and his Republican colleague Ted Poe of Texas introduced legislation in the House that would create federal grants for states to experiment with courts that deliver swift, predictable and moderate punishment for those who violate probation.
There also appears to be a national audience for a broader conversation about new ways to shrink the prison population. Last year, a three-judge panel in California ordered the overcrowded state prison system — the largest in the country, with more than 170,000 prisoners at its peak — to reduce the inmate population by tens of thousands of prisoners within two years in order to comply with constitutional standards for medical and mental health care. Facing a tightening budget crisis in September, California legislators added to the pressure by demanding a reduction in the prison budget of $1.2 billion. In the U.S. Senate, Jim Webb of Virginia is leading a crusade for prison reform, insisting that fewer jail terms for nonviolent offenders can make America safer and more humane, while also saving money. And in the Obama administration, Attorney General Eric Holder is questioning the value of relentlessly expanding prisons. In July, he declared that “high rates of incarceration have tremendous social costs” and “diminishing marginal returns.”
The most effective way to shrink the prison population, of course, is not just to reform probation and parole but also to deter groups of potential lawbreakers from committing crimes in the first place. If, in addition to bringing down the numbers of probation and parole revocations, police officers and judges could also address the core problems of drug arrests and street violence, the United States might even be said to have solved its notorious prison problem. Is such an ambitious goal possible? While it might sound too good to be true, the HOPE-style thinking about deterrence offers a promising road map for addressing all these challenges.
ALTHOUGH HE ACTED on his own, Judge Alm did not design the HOPE program without inspiration. In the mid-1990s, when he was a U.S. attorney in Hawaii, Alm heard a presentation by David M. Kennedy, who is considered the patron saint of the new thinking about deterrence. Kennedy, who now teaches at John Jay College of Criminal Justice, spoke about Operation Ceasefire, a program he was designing to reduce youth violence in Boston. Along with his colleagues Anne M. Piehl and Anthony Braga, Kennedy worked with the head of the Youth Violence Strike Force, a division of the Boston Police Department. The police officer explained that while conventional deterrence hadn’t worked, he had begun to persuade gangs to behave by issuing a credible threat: namely, that when a gang attracted attention with notorious acts of violence, the entire gang — all of whose members likely had outstanding warrants or probation, parole or traffic violations — would be rounded up.
Kennedy recalls this today as a breakthrough moment in his thinking. Ever since the days of Cesare Beccaria, the 18th-century philosopher and death-penalty opponent, classical deterrence theorists had focused on credibly threatening individuals; Kennedy’s first innovation was to focus on increasing the legitimacy of law enforcement in the eyes of groups. “The legitimacy element has risen in my mind from being an important element of the strategy to the most important element,” Kennedy told me. Convinced that the best way to increase legitimacy was to enlist what he calls the “community’s moral voice,” Kennedy set out to deter the most dangerous young gang members by persuading their friends and neighbors to pressure them into obeying the law.
In May 1996, Kennedy, Piehl and Braga helped to design the first of what came to be known as “call-in” sessions, intended to put gangs on notice that they would face swift and certain punishments. Working with Kennedy, probation and parole officers ordered gang members to attend face-to-face meetings with the police. The gang members were given three warnings. First, they were told that if anyone in their group killed someone, the entire group would suffer consequences. Second, the gang members were told that if they want to escape from street life, they could get help and job training from social service agencies and churches. And finally, they heard from members of their community that violence was wrong and it had to stop. The results of the forums were striking and immediate. Within two years, youth violence in Boston fell by two-thirds and city homicide rates by about half.
Why was Operation Ceasefire so effective? One reason was that the warning hearings gave the gang members a sense of what to expect. Increasingly draconian sentences don’t always reduce crime, and sometimes increase it. (After increasing in the 1980s, crime fell by 25 percent in the 1990s, but states that put more people in jail had a smaller decline than states that imprisoned fewer.) In part, this is because many people actually don’t know the punishments they face.
In addition to offering knowledge, Operation Ceasefire provided certainty. The small numbers of gang members singled out meant they could trust that the police would be able to follow through on their threats. “If you can get people to behave by threatening them credibly, you’ll need less actual punishment than if you let them run wild and punish only occasionally,” says Mark A. R. Kleiman, author of the new book “When Brute Force Fails: How to Have Less Crime and Less Punishment.” Kleiman, whom Alm consulted soon after initiating the HOPE program, became interested in swift, certain and moderate punishment when he was a colleague of Kennedy’s years before. Lastly, Operation Ceasefire gave gang members an incentive to obey the law by promising that they would get positive reinforcement from their families and neighbors for changing their behavior.
In all of this, Kennedy’s insights were supported by a variety of recent research suggesting that people are more likely to obey the law when they view law enforcement as fair and legitimate. Tom Tyler, a psychology professor at New York University, has found that compliance with court orders is highest for offenders who perceive that they have experienced a fair process. And in a recent book, “American Homicide,” the Ohio State University historian Randolph Roth argues that throughout American history, the homicide rate has decreased when people trust that the government is stable and unbiased and believe in the legitimacy of the officials who run it. Similarly, the legal scholar Paul Butler argues in his new book, “Let’s Get Free: A Hip-Hop Theory of Justice,” that widespread incarceration in the 1980s and ’90s undermined the legitimacy of law enforcement in the eyes of the affected communities by converting a prison term into something heroic rather than stigmatic.
After Operation Ceasefire, Kennedy turned his attention from gangs to open-air drug markets. He set out to change how the criminal-justice system was viewed from the perspective of the offenders and their communities — and how the offenders and their communities were viewed by the police. As Kennedy told me, “I saw law enforcement believing plausible but untrue things about the communities they police” — namely, that the communities were corrupt and didn’t care about the violence that was destroying them — “and the communities believing untrue things about the police” — namely, that the cops were part of a racist conspiracy to lock up black offenders while overlooking white ones.
To correct what he calls a “corrosive and tragic mistake,” Kennedy came up with the idea of a kind of truth-and-reconciliation commission in which offenders would talk to the police accompanied by the people they trusted the most: their mothers. In 2003, working with James Fealy, the police chief in High Point, N.C., Kennedy arranged some preliminary meetings. Although Fealy had been shocked to learn that the community thought he and his officers were almost as bad as the drug dealers, Fealy, in turn, surprised community members by declaring that no one in law enforcement thought the drug war could be won.
These meetings prepared the groundwork for the strategy that followed. After identifying 16 active drug dealers, Fealy arrested four and then prepared warrants for the other 12 that could be signed whenever the police chose. He then called in the other dealers, nine of whom arrived accompanied by their mothers and other “influentials” like grandmothers, and delivered the following message to them as a group: “You could be in jail tonight. We don’t want to do that, we want to help you succeed, but you are out of the drug business.” The mothers and grandmothers, seemingly impressed by the decision not to arrest, cheered on the police. In subsequent meetings, the “influentials” shouted down naysayers, including a conspiracymonger who accused the C.I.A. of having created the crack epidemic to oppress black people. The drug market in the area dried up.
IN ADDITION TO influencing Judge Alm’s probation reform, Kennedy’s efforts to rethink deterrence have also inspired one of the most powerful recent models for national parole reform, which comes from Tracey Meares, a law professor at Yale. (Unlike probation, which involves a sentence instead of prison, parole involves supervision after part of the prison sentence has been served.) In 2002, Meares, who was then a law professor at the University of Chicago, was asked by the U.S. attorney in Chicago, Patrick Fitzgerald, to analyze how best to address crime in the city. She concluded that they should begin on the West Side, in West Garfield Park and the surrounding area, where rates of murder and gun violence were more than four times the city average. Fitzgerald suggested that they might implement a version of Project Exile, a controversial program in Virginia that sought to deter gun violence by threatening federal prosecutions — and a five-year mandatory minimum sentence — for repeat offenders convicted of illegal gun possession. But Project Exile had experienced only mixed success: federal prosecutors could prosecute only a small proportion of the gun cases submitted by the Richmond police. The threat of a severe sentence was, in effect, something of a bluff.
Meares told Fitzgerald that threats of zero tolerance wouldn’t work because they simply weren’t credible. Instead, Meares argued that law-enforcement officials should concentrate on specific groups of wrongdoers in ways they could accept as both reasonable and fair. Using Operation Ceasefire in Boston as a model, Meares identified everyone who had committed violent or gun-related crimes and had been released from prison and recently assigned to parole. She gathered them in random groups of no more than 20 for call-in sessions in what Meares calls “places of civic importance” — park buildings, local schools and libraries — where they sat at the same table as the police in order to create an egalitarian, nonconfrontational atmosphere. They then heard a version of Kennedy’s three-part presentation. The results of the program were drastic: there was a 37 percent drop in the average monthly homicide rate — the largest drop of any neighborhood in the city. Violent crime in Chicago today is at a 30 year low. “All these strategies are a way of signaling to groups of people that government agents view them with dignity, neutrality and trust, which is the best way of convincing them that the government has the right to hold them accountable for their behavior,” Meares told me.
From Kennedy and Kleiman to Alm and Meares, the judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets. But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical. Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.
A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step. The relative simplicity of the solutions, it turns out, is at the core of their radical potential.
by Jeffrey Rosen, a law professor at George Washington University, who is a frequent contributor to theNew York Times magazine. He is at work on a book about Louis Brandeis. Published 1/10/10
Saturday, January 09, 2010
Fatal wounds for the death penalty:
People tend to have hardened views about the death penalty. Me, I'm opposed to it and always have been. But I ask the indulgence of those of you who favor the death penalty to give this a read and see what you think.
The death penalty costs a lot to implement, a side issue to be sure but in these tough fiscal times, a consideration. Florida, for instance, spends about $51 million a year on its death penalty system or about $24 million for each execution. While another broke state, California, spends an estimated $137 million. The high cost is largely driven by the layers of additional court proceedings intended to make sure that due process has been afforded the accused and a guilty person is being executed.
I can hear the cries of "who cares what it costs?" or "let's make it cheaper by cutting out all those extra legal steps." But what should concern capital punishment proponents is that the system, even with these expensive safeguards, gets it wrong. Executing the innocent is a distinct possibility.
Nine men in 2009 who had been convicted and sentenced to death were exonerated of their crimes and freed. The total now stands at 139 since 1973. According to the Death Penalty Information Center, those nine men served a combined 121 years between the time they were sentenced to death and their exonerations, which means that all that extra due process and all the system's delays that pandering politicians always caterwaul about were necessary to avert a tragedy.
And then there are the cases where a convict's innocence emerged too late. In a 2006 case concerning the death penalty law in Kansas, Supreme Court Justice Antonin Scalia wrote with his typical crowing arrogance that there has not been "a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."
Scalia's misguided confidence is troubling considering the infamous Florida case of Frank Lee Smith whose death warrant was signed in 1989 for a rape and murder. It wasn't until after Smith died of cancer while awaiting execution that a DNA test in 2000 proved his innocence and implicated a convicted rapist and murderer.
And there is also Cameron Todd Willingham of Texas who was convicted of killing his three young daughters by arson and executed in 2004. Forensic experts who have reviewed the case, including one enlisted by the Texas Forensic Science Commission, say there is no scientific basis to conclude that the fire that swept through Willingham's home was arson. The original fire investigators, according to these later experts, had no comprehension of fire dynamics.
By all rights this should be the first case where a state formally exonerates a convict after putting him to death. Republican Gov. Rick Perry, a man in a pitched primary battle to win another term against Sen. Kay Bailey Hutchison, refused to grant Willingham a stay of execution even though Perry had before him new scientific evidence disputing the arson.
Perry has so little interest in doing what is right in this case that he's gone out of his way to hamper the work of the Texas Forensic Science Commission. Perry denies this. But after Perry replaced three members of the commission including its chair for no apparent reason the commission quickly put on hold further review of Willingham's case.
Another fairly recent action should jar death penalty supporters. The very group that laid out the modern framework for the implementation of capital punishment has now declared that the system is wholly unworkable and broken. In October the American Law Institute voted to repudiate the legal structure it had created in 1962 for death penalty cases as part of a Model Penal Code. According to the group, decades of experience tells us that there is no way to ensure "a minimally adequate system for administering capital punishment."
What we have now is not adequate while being extremely pricey. It is likely at least one innocent man has died and probably numbers more. This is why we should abolish the death penalty.
By Robyn E. Blumner,St. Petersburg Times Columnist
Published Thursday, January 7, 2010
The death penalty costs a lot to implement, a side issue to be sure but in these tough fiscal times, a consideration. Florida, for instance, spends about $51 million a year on its death penalty system or about $24 million for each execution. While another broke state, California, spends an estimated $137 million. The high cost is largely driven by the layers of additional court proceedings intended to make sure that due process has been afforded the accused and a guilty person is being executed.
I can hear the cries of "who cares what it costs?" or "let's make it cheaper by cutting out all those extra legal steps." But what should concern capital punishment proponents is that the system, even with these expensive safeguards, gets it wrong. Executing the innocent is a distinct possibility.
Nine men in 2009 who had been convicted and sentenced to death were exonerated of their crimes and freed. The total now stands at 139 since 1973. According to the Death Penalty Information Center, those nine men served a combined 121 years between the time they were sentenced to death and their exonerations, which means that all that extra due process and all the system's delays that pandering politicians always caterwaul about were necessary to avert a tragedy.
And then there are the cases where a convict's innocence emerged too late. In a 2006 case concerning the death penalty law in Kansas, Supreme Court Justice Antonin Scalia wrote with his typical crowing arrogance that there has not been "a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."
Scalia's misguided confidence is troubling considering the infamous Florida case of Frank Lee Smith whose death warrant was signed in 1989 for a rape and murder. It wasn't until after Smith died of cancer while awaiting execution that a DNA test in 2000 proved his innocence and implicated a convicted rapist and murderer.
And there is also Cameron Todd Willingham of Texas who was convicted of killing his three young daughters by arson and executed in 2004. Forensic experts who have reviewed the case, including one enlisted by the Texas Forensic Science Commission, say there is no scientific basis to conclude that the fire that swept through Willingham's home was arson. The original fire investigators, according to these later experts, had no comprehension of fire dynamics.
By all rights this should be the first case where a state formally exonerates a convict after putting him to death. Republican Gov. Rick Perry, a man in a pitched primary battle to win another term against Sen. Kay Bailey Hutchison, refused to grant Willingham a stay of execution even though Perry had before him new scientific evidence disputing the arson.
Perry has so little interest in doing what is right in this case that he's gone out of his way to hamper the work of the Texas Forensic Science Commission. Perry denies this. But after Perry replaced three members of the commission including its chair for no apparent reason the commission quickly put on hold further review of Willingham's case.
Another fairly recent action should jar death penalty supporters. The very group that laid out the modern framework for the implementation of capital punishment has now declared that the system is wholly unworkable and broken. In October the American Law Institute voted to repudiate the legal structure it had created in 1962 for death penalty cases as part of a Model Penal Code. According to the group, decades of experience tells us that there is no way to ensure "a minimally adequate system for administering capital punishment."
What we have now is not adequate while being extremely pricey. It is likely at least one innocent man has died and probably numbers more. This is why we should abolish the death penalty.
By Robyn E. Blumner,St. Petersburg Times Columnist
Published Thursday, January 7, 2010
Wednesday, January 06, 2010
Prisons and Budgets
The United States, which has less than 5 percent of the world’s population, has about one-quarter of its prisoners. But the relentless rise in the nation’s prison population has suddenly slowed as many states discover that it is simply too expensive to overincarcerate.
Between 1987 and 2007 the prison population nearly tripled, from 585,000 to almost 1.6 million. Much of that increase occurred in states — many with falling crime rates — that had adopted overly harsh punishment policies, such as the “three strikes and you’re out” rule and drug laws requiring that nonviolent drug offenders be locked away.
These policies have been hugely costly. According to the Pew Center on the States, state spending from general funds on corrections increased from $10.6 billion in 1987 to more than $44 billion in 2007, a 127 percent increase in inflation-adjusted dollars. In the same period, adjusted spending on higher education increased only 21 percent.
In 2008, the explosion of the prison population ground to a near halt, according to data released last month by the Bureau of Justice Statistics. About 739,000 inmates were admitted to federal and state facilities, only about 3,500 more than were released.
One factor seems to be tight budgets as states decide to release nonviolent offenders early. This can not only save money. If done correctly, it can also be very sound social policy. Many nonviolent offenders can be dealt with more effectively and more cheaply through treatment and jobs programs.
Michigan, which has been hard hit by the recession, has done a particularly good job of releasing people who do not need to be in prison. As the American Civil Liberties Union’s National Prison Project details in a new report, Michigan reduced its prison population by about 8 percent between March 2007 and November 2009 by taking smart steps, notably doing more to get nonviolent drug offenders out, while helping in their transition to a productive, and crime-free, life.
Not every state has gotten the message. Florida, for example, has a state law mandating that all prisoners serve a high percentage of their sentence, which is both dubious corrections policy and terrible fiscal policy.
For many years, driving up prison populations has been an easy thing for elected officials to do, popular with voters and powerful corrections officer unions. The new incarceration figures suggest, however, that in the current hard economic times, strapped states are beginning to realize that they do not have the money to keep people in prison who do not need to be there.
A New York Times Editorial published January 5, 2010
Between 1987 and 2007 the prison population nearly tripled, from 585,000 to almost 1.6 million. Much of that increase occurred in states — many with falling crime rates — that had adopted overly harsh punishment policies, such as the “three strikes and you’re out” rule and drug laws requiring that nonviolent drug offenders be locked away.
These policies have been hugely costly. According to the Pew Center on the States, state spending from general funds on corrections increased from $10.6 billion in 1987 to more than $44 billion in 2007, a 127 percent increase in inflation-adjusted dollars. In the same period, adjusted spending on higher education increased only 21 percent.
In 2008, the explosion of the prison population ground to a near halt, according to data released last month by the Bureau of Justice Statistics. About 739,000 inmates were admitted to federal and state facilities, only about 3,500 more than were released.
One factor seems to be tight budgets as states decide to release nonviolent offenders early. This can not only save money. If done correctly, it can also be very sound social policy. Many nonviolent offenders can be dealt with more effectively and more cheaply through treatment and jobs programs.
Michigan, which has been hard hit by the recession, has done a particularly good job of releasing people who do not need to be in prison. As the American Civil Liberties Union’s National Prison Project details in a new report, Michigan reduced its prison population by about 8 percent between March 2007 and November 2009 by taking smart steps, notably doing more to get nonviolent drug offenders out, while helping in their transition to a productive, and crime-free, life.
Not every state has gotten the message. Florida, for example, has a state law mandating that all prisoners serve a high percentage of their sentence, which is both dubious corrections policy and terrible fiscal policy.
For many years, driving up prison populations has been an easy thing for elected officials to do, popular with voters and powerful corrections officer unions. The new incarceration figures suggest, however, that in the current hard economic times, strapped states are beginning to realize that they do not have the money to keep people in prison who do not need to be there.
A New York Times Editorial published January 5, 2010
Friday, January 01, 2010
"Judges Consider New Factor at Sentencing: Military Service"
The title of this post is the headline of this new article in today's Wall Street Journal. Here are excerpts from the effective piece:
A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.
As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.
That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.
Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.
Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.
There are no special courts for veterans in the federal court system.... But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.
The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing. After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....
Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service. "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"...
Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.
Sympathy for new veterans aided John Brownfield of Cañon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.
The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.
In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision. The Brownfield opinion can be accessed at this link, and it starts this way:
I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006). This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).
A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.
As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.
That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.
Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.
Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.
There are no special courts for veterans in the federal court system.... But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.
The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing. After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....
Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service. "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"...
Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.
Sympathy for new veterans aided John Brownfield of Cañon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.
The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.
In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision. The Brownfield opinion can be accessed at this link, and it starts this way:
I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006). This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).
Tuesday, December 29, 2009
Overtime served: Reforming Florida's violent incarceration mentality
Like other law enforcement officials in the state, Volusia County Sheriff Ben Johnson is sowing undue fear and misinformation about legislative proposals that would reform the state's overly harsh and unsustainably costly prison system. Johnson is following the lead of Brevard County Sheriff Jack Parker, who claims -- wrongly -- that "Florida is funding prisons less and less" while preparing to release offenders early.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
An Editorial from the Daytona News Journal published 12/29/09
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
An Editorial from the Daytona News Journal published 12/29/09
Overtime served Reforming Florida's violent incarceration mentality
Like other law enforcement officials in the state, Volusia County Sheriff Ben Johnson is sowing undue fear and misinformation about legislative proposals that would reform the state's overly harsh and unsustainably costly prison system. Johnson is following the lead of Brevard County Sheriff Jack Parker, who claims -- wrongly -- that "Florida is funding prisons less and less" while preparing to release offenders early.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
Since 2001, when it was at $1.62 billion, the Department of Corrections' budget has increased by 50 percent. It's at $2.43 billion today, a 5.7 percent increase over last year's $2.3 billion. The department's budget devours almost 10 percent of the state's general revenue to maintain a total payroll of 30,500 that keeps 100,000 inmates in prison -- a 3-to-1 per-inmate ratio. That's about eight times better than the state's teacher-pupil ratio. Despite a crime rate that has fallen steadily through the decade, the inmate population has risen 46 percent since 2001.
Criminals aren't getting more violent or committing more crimes. The state's incarceration laws have been made harsher since the mid-1980s (when Florida abolished parole) and the 1990s (when Florida harshed up mandatory sentences on adults and youthful offenders and ended the release of any state prison inmate before he or she serves at least 85 percent of a sentence). Yet, criminologists cast serious doubt on the effectiveness of harsher sentences, which contradict the principle of rehabilitation. It's called a department of corrections, not a department of punishment.
At its current pace, the Florida prison system will need to build, at least, 15 more prisons in the next five years, a $2 billion expense before the cost of running them kicks in. It would be folly. Legislators are looking for a better way. Texas is their example. Texas sentences mirrored Florida's. So did its exploding population. So, Texas changed its corrections approach, focusing especially on drug rehabilitation and education for inmates and sustained rehabilitation programs after release. (Criminologists point to drug rehab's effectiveness: Just 6 percent of violent offenders who have undergone rehab recommit crimes after their release, compared with 33 percent of those who don't get rehab. Yet, in Florida this year, the prison system's drug-treatment programs were cut by $6.2 million, education programs by $3.4 million.)
Texas' new approach worked. The state's prison population steadied. So did the corrections budget. The state's crime rate didn't spike. Florida lawmakers are introducing bills that would replicate some of those approaches, although the focus is more on reversing harsh sentences (still a worthy objective) than funding rehab programs.
Writing on the Sheriff's Office's Web site, Johnson wants residents to oppose "a particularly bad proposal that would grant early release to certain inmates 50-years-old or older as long as they have already served at least 25 years of their sentence." He is also building opposition to another proposal that "would reduce the sentence of dangerous youthful offenders under certain circumstances" -- offenders 15 or younger who were convicted as adults.
Johnson makes it sound as if violent offenders are never released (or should never be released) from prison. He should have a look at Department of Corrections reports. Better yet, he should encourage his readers to do so. Last August alone, 3,073 offenders were released from Florida prisons. Of those, 814, or 26.5 percent, were violent offenders. On average, those violent offenders served 53 months. Johnson says, "This is not the type of person we want roaming our streets again." But every prison system in the nation eventually releases a portion of its violent offenders for the obvious reason that life terms are rare. Johnson also makes it sound as if the proposals, if enacted, would result in immediate releases. Not so. Prisoners would have to petition for their release and have their cases reviewed one by one. It's a restoration of parole by other means.
The question isn't whether they should be released, but when. For two decades Florida opted for longer sentences and fewer second chances, without appreciable results. Those laws are finally coming in for their own corrections.
Sunday, December 13, 2009
Why are innocent persons sentenced to prison?
It took 35 years for the criminal justice system to face the fact that it had wronged James Bain, a man convicted of the heinous crime of raping a 9-year-old boy in Lake Wales and sentenced to a lifetime behind bars. For nearly a decade Bain was denied requests for a DNA test on the evidence. It took a state attorney finally agreeing this year for the test to be done. The results ruled Bain out as the perpetrator.
Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years. The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.
On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.
Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.
An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)
The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.
Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.
Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.
When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.
A St. Petersburg Times Editorial Dec 09
Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years. The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.
On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.
Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.
An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)
The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.
Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.
Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.
When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.
A St. Petersburg Times Editorial Dec 09
Justice for mentally ill must evolve:
It shouldn't require a hero to fix this.
Judge Steven Leifman certainly qualifies for the appellation, leading (or, more accurately, dragging) Miami-Dade away from ineffective, costly, cruel policies that turned the Miami-Dade County jail into the nation's second-largest mental-health ward (after the Los Angeles County Jail) .
Judge Leifman spoke at a symposium Wednesday morning about considerable progress that Miami-Dade has made these past few years, diverting the mentally ill, many of them serial recidivists, out of the criminal justice system.
Miami Police Lt. Jeff Locke talked about the evolution of police policies toward psychotic behavior. Before 1999, police essentially acted as ``goons'' when they dealt with mentally ill transgressors, he said, ready to answer violence with violence. And sometimes deadly force. ``I was one of those cops.''
A BETTER APPROACH
Locke now trains local police officers in crisis intervention. Most police agencies in Miami-Dade County now have trained squads dedicated to defusing these confrontations. Judge Leifman talked about results: Half the subjects of police calls involving psychotic episodes are now diverted into treatment programs.
But it never should have come down to cops and jailers and a heroic judge to fix this medieval system. Leifman and Locke and the criminal justice system have been forced to deal with a massive community failure, 40 years in the making. As Florida closed its mental hospitals, most for good reason, the state failed to provide the outreach to keep the mentally ill treated, sheltered and safe.
We left them to their own devices. Until they became a police problem.
Here's what neglect got us: Some 125,000 of our mentally ill will take up space in Florida's jails and prisons this year, most for minor transgressions. Leifman said that on any given day, Florida houses 17,000 mentally ill prisoners in the state correctional system, another 15,000 in local lock-ups. Yet another 40,000 are on community control, and given the paucity of treatment, twice as likely to flunk probation.
THE FINANCIAL TOLL
Treatment costs behind bars devour budgets. Jails make for massively expensive, utterly ineffective mental hospitals. But for 40 years, Florida has cycled the mentally ill from the streets to jail to the streets to jail. With in-jail treatment mostly consisting of a regime of pills designed to keep them placid, not manage their illness.
Leifman said Wednesday that the fastest growing sub-set of prisoners in the state's corrections system are mentally ill defendants sent to a state institution until they're deemed competent to stand trial. He pointed out that competency training is not about treatment, but only about meeting the legal threshold necessary to try a prisoner. The overwhelming majority (currently occupying about 17,000 beds) finally will be hauled into court, then turned loose, sentenced to time served. And they'll be back.
In the next 10 years, Leifman said, their number will double to 35,000. They'll require 10 new prisons and an annual budget of $3.5 billion in a state that's going broke. ``It's insane,'' the judge said.
Yet a bill to divert these prisoners into community-based managed care, at a fraction of the cost, has languished for two years in the Legislature.
It shouldn't take a hero to fix this.
Posted on Wed, Dec. 09, 2009
By FRED GRIMM
fgrimm@MiamiHerald.com
Judge Steven Leifman certainly qualifies for the appellation, leading (or, more accurately, dragging) Miami-Dade away from ineffective, costly, cruel policies that turned the Miami-Dade County jail into the nation's second-largest mental-health ward (after the Los Angeles County Jail) .
Judge Leifman spoke at a symposium Wednesday morning about considerable progress that Miami-Dade has made these past few years, diverting the mentally ill, many of them serial recidivists, out of the criminal justice system.
Miami Police Lt. Jeff Locke talked about the evolution of police policies toward psychotic behavior. Before 1999, police essentially acted as ``goons'' when they dealt with mentally ill transgressors, he said, ready to answer violence with violence. And sometimes deadly force. ``I was one of those cops.''
A BETTER APPROACH
Locke now trains local police officers in crisis intervention. Most police agencies in Miami-Dade County now have trained squads dedicated to defusing these confrontations. Judge Leifman talked about results: Half the subjects of police calls involving psychotic episodes are now diverted into treatment programs.
But it never should have come down to cops and jailers and a heroic judge to fix this medieval system. Leifman and Locke and the criminal justice system have been forced to deal with a massive community failure, 40 years in the making. As Florida closed its mental hospitals, most for good reason, the state failed to provide the outreach to keep the mentally ill treated, sheltered and safe.
We left them to their own devices. Until they became a police problem.
Here's what neglect got us: Some 125,000 of our mentally ill will take up space in Florida's jails and prisons this year, most for minor transgressions. Leifman said that on any given day, Florida houses 17,000 mentally ill prisoners in the state correctional system, another 15,000 in local lock-ups. Yet another 40,000 are on community control, and given the paucity of treatment, twice as likely to flunk probation.
THE FINANCIAL TOLL
Treatment costs behind bars devour budgets. Jails make for massively expensive, utterly ineffective mental hospitals. But for 40 years, Florida has cycled the mentally ill from the streets to jail to the streets to jail. With in-jail treatment mostly consisting of a regime of pills designed to keep them placid, not manage their illness.
Leifman said Wednesday that the fastest growing sub-set of prisoners in the state's corrections system are mentally ill defendants sent to a state institution until they're deemed competent to stand trial. He pointed out that competency training is not about treatment, but only about meeting the legal threshold necessary to try a prisoner. The overwhelming majority (currently occupying about 17,000 beds) finally will be hauled into court, then turned loose, sentenced to time served. And they'll be back.
In the next 10 years, Leifman said, their number will double to 35,000. They'll require 10 new prisons and an annual budget of $3.5 billion in a state that's going broke. ``It's insane,'' the judge said.
Yet a bill to divert these prisoners into community-based managed care, at a fraction of the cost, has languished for two years in the Legislature.
It shouldn't take a hero to fix this.
Posted on Wed, Dec. 09, 2009
By FRED GRIMM
fgrimm@MiamiHerald.com
Thursday, December 10, 2009
Right and Left Join Forces on Criminal Justice:
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”
Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.
“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”
In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”
There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.
“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”
Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”
The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”
Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.
In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.
Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.
“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.
Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.
“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.
The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.
“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.
The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.
The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.
Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.
“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”
Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”
By ADAM LIPTAK New York Times
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”
Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.
“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”
In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”
There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.
“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”
Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”
The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”
Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.
In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.
Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.
“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.
Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.
“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.
The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.
“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.
The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.
The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.
Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.
“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”
Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”
By ADAM LIPTAK New York Times
Saturday, November 28, 2009
Instead of more prisons, less crime:
One of the more encouraging things happening in Florida is the movement for "smart justice." The goal is to reduce the number of repeat offenses by ex-inmates.
This would be a good idea.
No, it would be a great idea.
As matters stand now, almost exactly 33 percent of those released from Florida prison are back behind bars within three years.
This means the population keeps growing, and we have to keep building prisons. They cost $100 million a pop to build, and $25 million a year to run.
We just passed 100,000 inmates in the state prison system. Last year the whole shebang cost us $2.4 billion.
So …
What if we could turn out inmates who were less likely to re-offend? We would save tax dollars, reduce future crime, and maybe even salvage some lives.
There's no single magic wand to do this. But there are several tools that seem to be working, such as:
• "Re-entry" programs that begin to prepare inmates for their return to society as the end of their sentence approaches.
• Treatment for mental health issues or substance abuse, which affect a large percentage of the prison population. This might be the best money spent ever — some programs have dramatically cut that 33 percent, three-year recidivism rate.
• "Character-based" programs based on broad networks of community volunteers working with inmates in a structured curriculum.
You will not be surprised to learn that the Florida Legislature has declined to expand or has even cut some programs in recent years, especially in substance abuse treatment.
This brings us to the group called the "Coalition for Smart Justice," which held a "justice summit" on Monday and Tuesday in Tampa. About 300 people attended.
The coalition has a fascinating array of signers: past state attorneys general and corrections secretaries, social and political leaders, law enforcement and prosecutors.
It's interesting that some of the backers are business groups: Florida TaxWatch, the Florida Chamber of Commerce Foundation, Associated Industries of Florida.
"If we're going to be taxed," Associated Industries chief Barney Bishop told the audience during a panel discussion, "we want to get the most bang for the buck."
Three department heads under Gov. Charlie Crist were there: Walt McNeil of Corrections, George Sheldon of Children and Families, and Frank Peterman of Juvenile Justice.
McNeil said he hopes that by expanding these efforts, Florida can reduce its 33 percent rate by 18 to 20 percentage points by 2014.
The main challenge to the Coalition for Smart Justice is political. It has to prove to the Legislature that reducing future crime is actually more "conservative" than just building prison after prison.
Nobody is talking about throwing open prison doors.
Nobody is talking about hand-holding, mollycoddling or feeling sorry for criminals.
Most of all, nobody is talking about not sending to prison the people who ought to be there.
What they are talking about is whether we can keep more of them from coming back.
Learn more about the Coalition for Smart Justice on the Web site of the Collins Center for Public Policy at Florida State University:
www.collinscenter.org.
By Howard Troxler, St. Petersburg Times Columnist
Published Wednesday, November 18, 2009
This would be a good idea.
No, it would be a great idea.
As matters stand now, almost exactly 33 percent of those released from Florida prison are back behind bars within three years.
This means the population keeps growing, and we have to keep building prisons. They cost $100 million a pop to build, and $25 million a year to run.
We just passed 100,000 inmates in the state prison system. Last year the whole shebang cost us $2.4 billion.
So …
What if we could turn out inmates who were less likely to re-offend? We would save tax dollars, reduce future crime, and maybe even salvage some lives.
There's no single magic wand to do this. But there are several tools that seem to be working, such as:
• "Re-entry" programs that begin to prepare inmates for their return to society as the end of their sentence approaches.
• Treatment for mental health issues or substance abuse, which affect a large percentage of the prison population. This might be the best money spent ever — some programs have dramatically cut that 33 percent, three-year recidivism rate.
• "Character-based" programs based on broad networks of community volunteers working with inmates in a structured curriculum.
You will not be surprised to learn that the Florida Legislature has declined to expand or has even cut some programs in recent years, especially in substance abuse treatment.
This brings us to the group called the "Coalition for Smart Justice," which held a "justice summit" on Monday and Tuesday in Tampa. About 300 people attended.
The coalition has a fascinating array of signers: past state attorneys general and corrections secretaries, social and political leaders, law enforcement and prosecutors.
It's interesting that some of the backers are business groups: Florida TaxWatch, the Florida Chamber of Commerce Foundation, Associated Industries of Florida.
"If we're going to be taxed," Associated Industries chief Barney Bishop told the audience during a panel discussion, "we want to get the most bang for the buck."
Three department heads under Gov. Charlie Crist were there: Walt McNeil of Corrections, George Sheldon of Children and Families, and Frank Peterman of Juvenile Justice.
McNeil said he hopes that by expanding these efforts, Florida can reduce its 33 percent rate by 18 to 20 percentage points by 2014.
The main challenge to the Coalition for Smart Justice is political. It has to prove to the Legislature that reducing future crime is actually more "conservative" than just building prison after prison.
Nobody is talking about throwing open prison doors.
Nobody is talking about hand-holding, mollycoddling or feeling sorry for criminals.
Most of all, nobody is talking about not sending to prison the people who ought to be there.
What they are talking about is whether we can keep more of them from coming back.
Learn more about the Coalition for Smart Justice on the Web site of the Collins Center for Public Policy at Florida State University:
www.collinscenter.org.
By Howard Troxler, St. Petersburg Times Columnist
Published Wednesday, November 18, 2009
Saturday, November 21, 2009
Do justice like Texas. Really
For two days, conservatives and liberals told each other how much they agree on one of Florida's most important issues.
That issue is criminal justice, and the new choir sang Monday and Tuesday in Tampa at Justice Summit 2009. Sponsored by the Collins Center for Public Policy and the Annie E. Casey Foundation, the gathering amounted to a pep rally for change that the state has needed for two decades.
What's different? The issues now include money, and Florida's leading business groups care.
For 25 years, Florida's criminal justice policy has been to lock up as many people as possible for as long as possible. The Legislature has approved sentencing guidelines and minimum mandatory sentences. The Legislature has required inmates to serve at least 85 percent of their sentences. Even Pinellas County State Attorney Bernie McCabe, one of Florida's most hard-line prosecutors, says, "We take away a driver's license for durned near everything."
It's the easy political call. No one ever lost an election by being "tough on crime." As more states are learning, however, it's more important to be smart on crime. Lock up only the dangerous. Try to rehabilitate the others. Don't criminalize mental illness or addiction. Treat it. Help ex-offenders reenter society. Turn around a person's life, and you prevent a crime. Smarter. Cheaper. Safer.
Sure, Florida's crime rate is down 16 percent in the past 10 years. But Florida's incarceration rate is up 47 percent, crime has decreased nationally and the tough-on-crime tab has come just when Florida is tapped out.
This year, the Department of Corrections informed the Legislature that Florida would need 19 new prisons. Each would cost about $100 million to build and $25 million to operate. Every year. At $3 billion, the DOC is the third-largest part of the budget. So the big news was that the Legislature approved no new prisons. The Legislature passed no laws that affect who goes to prison or for how long. The price tag was a show-stopper. DOC Secretary Walter McNeil, a former police chief, supports reform.
Most of those in Tampa had seen each other at similar rallies. They run the not-for-profit substance-abuse treatment centers. They serve on the boards of agencies that work to change lives. They minister in faith-based prisons, where the rate of inmates who return to prison — known as recidivism — is lower than for traditional prisons.
The new participants were representatives of the Florida Chamber and Associated Industries of Florida. As speaker after speaker noted, the Legislature, especially the House, listens first to business. AIF President Barney Bishop told the do-gooders not to sound like do-gooders when they lobby legislators next year: "You're business people. You have numbers to show that your business works."
Other numbers show that the status quo doesn't work. One-third of the 30,000-plus inmates released each year go back to prison within two years. Think of all those victims. Think of all that wasted human potential. We could spend a whole other column on the need to keep the Department of Juvenile Justice from becoming just a farm system for the Department of Corrections.
The real star of the show in Tampa was not someone from Florida. It was Jerry Madden, a self-described "hard-line conservative" Texas legislator who sponsored the bill in 2007 that shifted his state away from incarceration at all costs to rehabilitation and treatment where appropriate. "My god, Texas," exclaimed Vickie Lopez Lukis, a Republican who chaired the Governor's Ex-Offender Task Force in 2006. If Texas can be smart on crime, why not Florida?
As Rep. Madden explained: "We didn't touch any sentencing laws. We just started shifting money." In 2008, he survived a primary challenge from a Republican who charged that Rep. Madden was "soft on crime." In 2009, he fought off attempts to undercut the reforms. He's going to run once more in 2010 "because by 2011, we'll have all the numbers to show that it really works."
Florida hasn't done smart for a long time. Here's a good place to start.
By RANDY SCHULTZ Palm Beach Post
Published Friday, Nov. 20, 2009
Randy Schultz is the editor of the editorial page of The Palm Beach Post. His e-mail address is Schultz@pbpost.com
That issue is criminal justice, and the new choir sang Monday and Tuesday in Tampa at Justice Summit 2009. Sponsored by the Collins Center for Public Policy and the Annie E. Casey Foundation, the gathering amounted to a pep rally for change that the state has needed for two decades.
What's different? The issues now include money, and Florida's leading business groups care.
For 25 years, Florida's criminal justice policy has been to lock up as many people as possible for as long as possible. The Legislature has approved sentencing guidelines and minimum mandatory sentences. The Legislature has required inmates to serve at least 85 percent of their sentences. Even Pinellas County State Attorney Bernie McCabe, one of Florida's most hard-line prosecutors, says, "We take away a driver's license for durned near everything."
It's the easy political call. No one ever lost an election by being "tough on crime." As more states are learning, however, it's more important to be smart on crime. Lock up only the dangerous. Try to rehabilitate the others. Don't criminalize mental illness or addiction. Treat it. Help ex-offenders reenter society. Turn around a person's life, and you prevent a crime. Smarter. Cheaper. Safer.
Sure, Florida's crime rate is down 16 percent in the past 10 years. But Florida's incarceration rate is up 47 percent, crime has decreased nationally and the tough-on-crime tab has come just when Florida is tapped out.
This year, the Department of Corrections informed the Legislature that Florida would need 19 new prisons. Each would cost about $100 million to build and $25 million to operate. Every year. At $3 billion, the DOC is the third-largest part of the budget. So the big news was that the Legislature approved no new prisons. The Legislature passed no laws that affect who goes to prison or for how long. The price tag was a show-stopper. DOC Secretary Walter McNeil, a former police chief, supports reform.
Most of those in Tampa had seen each other at similar rallies. They run the not-for-profit substance-abuse treatment centers. They serve on the boards of agencies that work to change lives. They minister in faith-based prisons, where the rate of inmates who return to prison — known as recidivism — is lower than for traditional prisons.
The new participants were representatives of the Florida Chamber and Associated Industries of Florida. As speaker after speaker noted, the Legislature, especially the House, listens first to business. AIF President Barney Bishop told the do-gooders not to sound like do-gooders when they lobby legislators next year: "You're business people. You have numbers to show that your business works."
Other numbers show that the status quo doesn't work. One-third of the 30,000-plus inmates released each year go back to prison within two years. Think of all those victims. Think of all that wasted human potential. We could spend a whole other column on the need to keep the Department of Juvenile Justice from becoming just a farm system for the Department of Corrections.
The real star of the show in Tampa was not someone from Florida. It was Jerry Madden, a self-described "hard-line conservative" Texas legislator who sponsored the bill in 2007 that shifted his state away from incarceration at all costs to rehabilitation and treatment where appropriate. "My god, Texas," exclaimed Vickie Lopez Lukis, a Republican who chaired the Governor's Ex-Offender Task Force in 2006. If Texas can be smart on crime, why not Florida?
As Rep. Madden explained: "We didn't touch any sentencing laws. We just started shifting money." In 2008, he survived a primary challenge from a Republican who charged that Rep. Madden was "soft on crime." In 2009, he fought off attempts to undercut the reforms. He's going to run once more in 2010 "because by 2011, we'll have all the numbers to show that it really works."
Florida hasn't done smart for a long time. Here's a good place to start.
By RANDY SCHULTZ Palm Beach Post
Published Friday, Nov. 20, 2009
Randy Schultz is the editor of the editorial page of The Palm Beach Post. His e-mail address is Schultz@pbpost.com
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