Fewer inmates entering Md., Va. prisons

I’m reposting this article from The Washington Examiner because I was intrigued by the connection drawn between international interdiction efforts and local corrections statistics.

By Liz Essley

Special to The Washington Examiner

Maryland and Virginia kept fewer people behind bars last year, in step with a nationwide trend that saw the first drop in states’ prison populations since 1972.

Maryland held 4.6 percent fewer prisoners in 2009 than in 2008 — one of the biggest decreases in the United States — and Virginia held 0.5 percent fewer.

Nationwide, states housed 0.2 percent fewer inmates, though the federal prison population grew by 3.4 percent.

“It absolutely is unprecedented. And that’s what was shocking for us. Within the available data, going back 10 years, [prison population] had gone up for 10 years. The drop is absolutely unprecedented,” said Baron Blakley, an expert with Virginia‘s Department of Criminal Justice Services.

Maryland’s shift — 1,069 fewer prisoners last year, leaving the state with 22,255 inmates — probably reflects new policing policies in Baltimore, said Marty Burns, a spokeswoman for the Baltimore City State’s Attorney’s Office. About 30 percent of the state prison system’s inmates come from Baltimore, he said.

The number of arrests in Baltimore dropped after 2007, when the police commissioner eliminated the city’s “zero-tolerance” crime policy and police started concentrating on violent, repeat offenders, said Anthony Guglielmi, spokesman for the Baltimore Police Department.

In 2008 and 2009, there were 5 percent fewer arrests, Guglielmi said.

“When you’re reducing the amount at the front of the pipeline, that ultimately will have an effect on the pipeline,” Guglielmi said.

Other factors reducing the number of Baltimore arrests could be tighter budgets and fewer officers, Burns said.

In Virginia, experts say a reduction in cocaine availability is decreasing the number of state prisoners.

The state inmate population was 37,633 in May, down from 38,329 in July 2009.

A 30 percent drop in the number of felony drug arrests over the past few years drove the prison population decline, said Meredith Farrar-Owens, a member of the Virginia Criminal Sentencing Commission.

Police are arresting fewer people for felony drug offenses because cocaine has become less available, according to Blakley. The drug war in Mexico, increased coca eradication in Colombia and an expanding cocaine market in Europe mean less cocaine on the streets of Virginia, he said.

Justice Policy Institute release

FOR IMMEDIATE RELEASE:
May 24, 2010

CONTACT: Adam Ratliff, aratliff@justicepolicy.org, (202) 558-7974 x306

Crime report shows crime fell in 2009 as prison growth rates decreased

Drop in crime comes as states seek ways to reduce prison populations and improve savings for state budgets

WASHINGTON, D.C.-Reported violent crime in the United States fell by 5.5 percent and property crime by 4.9 percent in 2009, according to an analysis released today by the Justice Policy Institute (JPI). The analysis, which was based on the FBI’s Preliminary Annual Uniform Crime Report, released earlier today, also found that this drop in crime coincided with decreasing use of prisons from previous years. This corresponds with a national trend of states seeking ways to curtail corrections spending in light of the economic downturn. JPI applauded the news, saying it highlights that states can save money, promote alternatives to incarceration and still maintain public safety.

“Increased incarceration does not increase public safety,” said Tracy Velázquez, executive director of the Justice Policy Institute. “The FBI’s report shows that we can improve public safety and put fewer people in prisons, which means savings for taxpayers in addition to stronger communities. Investments in jobs, education and treatment are areas where states should focus their dollars, as all of these will help reduce crime more effectively and fairly than building more prisons.”

According to the analysis, the 2009 drop in crime came at a time when the prison growth rates fell from previous years. While the number of people in prison is still growing, it is at a slower rate than the last few decades.

“Contrary to the conventional wisdom that locking people up makes communities safer, the data is clearly showing that crime is going down as fewer people are being put in prison,” Velázquez added. “Rather than spending more money unnecessarily on policing and incarceration, we recommend that states increase their investments in people and communities, rather than prisons, as a better way of ensuring that public safety continues to improve.”

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society’s use of incarceration and promoting just and effective social policies.

For a more in-depth analysis of crime trends, and information on effective public safety practices, please visit our website at www.justicepolicy.org.

###

Portugal Decriminalized All Drugs; Drug Use Dropped


As of this week, it’s been one year since the Cato Institute published its land report “Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies,” authored by Glenn Greenwald. The report examines eight years of Portugal’s drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”

However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

Sue Dealers For Selling You Drugs?!

This is more civil justice, but so startling and intriguing I had to say something. According to the The Gadsen Times of Alabama, a state representative there has just introduced a bill that would provide a cause of action “for someone who has lost a loved one due to a drug overdose” against the dealer when “the person who sold the drug has been convicted of distribution, manufacturing an illegal drug, or other similar charge.” The proponents, parents who lost a child to an opiate drug overdose, cite deterrence as their policy motivation.

While I’m sorry for this family’s loss, this argument widely misses its target, even leading aside overarching concerns balancing free will and personal responsibility versus paternalism. As if criminal penalties, the loss of the right to liberty itself, would not deter someone who would be deterred by monetary penalties. Further, under civil asset forfeiture laws, someone already convicted of selling or manufacturing drugs is already potentially liable for basically everything they own. To return to personal responsibility, is our next step start suing alcohol producers for alcohol poisoning or drunk driving fatalities?

Two Bites at the Apple: The Power of Suspending Imposition of a Sentence

Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant’s sentence. Although it was not the subject of the defendant’s appeal, I was fascinated by the process and felt it shed light on a Judge’s role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:

Hypothetical

18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith’s friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer’s vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith’s friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.

On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of “self medication” he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.

Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith’s parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a “bad apple.” To avoid letting him get off “scott free” for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.


Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith’s prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn’t gotten off “scott free” in front of Judge Foltz, and simply received a reduced sentence.

Commentary
It’s easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge’s perception of the defendant’s earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith’s first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.

There’s an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can’t. But a Judge probably cannot escape what he or she knows about the defendant’s subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.

The constitutionality of statutes which authorize judge’s to suspend imposition of a sentence has already been affirmed. Moreover, it’s not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge’s to suspend imposition of a sentence and noted: “If there be any merit in appellant’s argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom– to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable.”

From a Judge’s perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a “career criminal” and a someone who committed a “youthful indiscretion” while preserving the system’s ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.

Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.

It’s unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge’s typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant’s prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.
In any event, it’s a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.