Economist: Rough Justice

We Americans look especially ridiculous from across the pond. California even gets a special international shout-out for just how expensive our prison system is…
The Economist, “Crime and Punishment in America: Rough Justice”
http://www.economist.com/node/16640389

America locks up too many people, some for acts that should not even be criminal

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.


Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling (see article). Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

Federal Sentencing Reporter Issue

I’ve just received the February 2010 issue of the Federal Sentencing Reporter, titled “State of Emergency: The California Correctional Crisis.” The articles are short and informative and are all available for download here. Among other topics, you’ll find Joan Petersilia’s analysis of the Schwarzenegger administration’s approach to corrections, Kara Dansky’s piece on a California sentencing commission, Roger Warren’s commentary on probation reform, and Don Specter’s comment on the effects of overcrowding. The editorial comment by Aaron Rappaport and Kara Dansky is very helpful in framing the issue. The entire thing makes for a short read and is highly recommended.

Aaron Vargas and the Limits of Accountability

(image courtesy the San Francisco Chronicle)

Yesterday’s Chron covered the sentencing of Aaron Vargas, convicted of murdering his neighbor, Darrell McNeil. After the murder, allegations surfaced according to which McNeil had abused Vargas since the latter was a young boy. Vargas, who expressed regret about the killing and testified that he did not go into McNeil’s home with the intent to shoot him to death, was supported throughout his trial by family and friends who put together a website and organized a petition on his behalf.

From the Chron piece:

Vargas’ family and defense team had hoped he would be sentenced to the 16 months he has already served in county jail, plus probation, and go free Tuesday. They would have settled for perhaps a five-year sentence.

But they said they never thought he would get anything so close to the maximum 10 years in state prison available under the plea deal the former odd-job worker struck in April with the district attorney in exchange for pleading no contest to voluntary manslaughter. Prosecutors had sought 50 years to life in prison before the plea deal.

. . .

“I’m very satisfied with the sentence,” said Assistant District Attorney Beth Norman. “This was a difficult case, and I don’t think anybody could come away relieved.”

Vargas argued that he hadn’t intended to kill McNeill, just to scare him away from bothering him and his family. Judge Brown bought only part of it.

While expressing little doubt that Vargas was raped by McNeill, Brown said that “to grant probation in this case would put a stamp of approval on the defendant’s actions, which I cannot do.”

“The use of violence to correct a wrong only encourages more violence,” the judge said.

This terrible tragedy raises important and difficult questions, which go to the core of how we define accountability, how we operationalize sympathy, and how we value human lives in comparison to each other. As we know, the establishment of guilt in a criminal trial is a binary decision – guilty/not guilty – and criminal defenses specify very narrow terms under which an otherwise criminal act is justified and excused. Having been abused in the past does not award a defendant a complete carte blanche; to be acquitted for self defense, the danger to the defendant must be immediate and grave. However, with sentencing or charging we can be more flexible and some states are more lenient toward convicted murderers who were abused by their victims in the past. This doctrine was developed as “battered woman syndrome” or PTSD under the umbrella of mental problems that do not amount to a full insanity defense. In this case, the social reaction is rather interesting. It may be that some of the public rage about the sentence has to do with the gender aspects of this case. It is more probable, however, that the broad sympathy for Vargas comes from our antipathy toward the least-liked group of offenders: Child molesters and rapists. It is a difficult question whether we want our criminal law to reflect the idea that a child rapist deserves what he or she gets if murdered by his/her victim. The question of sentencing flexibility is a bit easier: we could still officially condemn murder, and yet find a way, sentence-wise, to not make the murderer pay the price in such situations. But whether we contemplate guilt or sentence, we are still asking, in essence, the same question: Is killing a child molester more understandable than killing someone else? More justified ? Or, for those of us who would punish murderers out of retributivism, is the life of a child molester worth less than the lives of other potential murder victims?

SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender’s 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender (“PD”).

The first panel, “Ordinary Injustice,” offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients’ best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors’ discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose’s defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs’ public relations problem: “Public pretender or public crusader?” Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv’s The Best Defense agreed that the media contributes to misperceptions of the PD’s role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD’s image. Criminal defender Gerald Schwartzbach drew applause for, “You don’t fight crime by cutting social services,” and for, “Putting a black robe on a jackass doesn’t get you a judge,” and for, “The whole criminal defense bar, public and private, needs to circle the wagons” and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution (pdrevolution.blogspot.com) pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center’s Clean Slate program: “There’s not really such a thing as a ‘clean slate’ in California.”

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.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.

Justice Policy Institute Bashes Budget

Today the Justice Policy Institute issued a press release criticizing President Obama’s budget proposal. The new budget would increase funding for law enforcement and prisons, and reduce funding for alternative justice programs. JPI has released a full fact sheet, here. The text of their release follows:

Group Criticizes Obama Administration’s Budget Plan to Increase Policing and Prisons

Justice advocates disturbed by proposed $29 billion for ineffective and unfair policies

Washington, D.C. – The Justice Policy Institute released a factsheet today challenging the Obama administration’s proposed Fiscal Year 2011 Department of Justice budget. The Administration is asking for $29.2 billion, which includes more funding for law enforcement and prisons, and reductions in spending on juvenile justice programs that have been proven to be effective at getting youth back on track for positive life outcomes. A hearing for the proposed budget was scheduled before the Congressional Budget Committee, Subcommittee on Commerce, Justice, and Science on February 11, but was delayed and is in the process of being rescheduled.

“The Administration’s rationale for dumping more money into COPS (the federal Community Oriented Policing Services program) is that we need more police while the economy improves in order to prevent crime,” stated Tracy Velázquez, executive director of JPI. “That doesn’t pass the smell test. Crime rates have been falling for the last few years and we’ve already put a billion stimulus dollars into more policing last year. If the Administration wants to buy jobs that will improve public safety, they should put that $600 million into struggling communities, schools, treatment, and social services.”

Velázquez also noted that the proposed budget will likely result in increased incarceration costs for states, with only marginal public safety benefits. This is at a time when financially-strapped states are trying to downsize prisons through such mechanisms as greater use of community supervision and more diversion programs. While Velázquez praised funding for the Second Chance Act, which helps formerly-incarcerated people with their transition back to the community, she added, “More money should be focused on programs that help to keep people out of the criminal and juvenile justice systems in the first place.” These alternatives include community-based prevention and early intervention programs for youth, education and employment training, and substance abuse and mental health treatment services.

Some of the key findings in the newly-released fact sheet http://www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=87.htm include:

* Byrne Justice Assistance Grants: JPI found that while the $500+ million proposed for this program can be used for prevention and education, in reality most money goes to law enforcement. Research has shown that increased law enforcement results in the least-effective solution-higher drug imprisonment rates-while this money could be more effectively spent on community drug treatment.

* Community Oriented Policing Services (COPS) Funding: The Administration is requesting $600 million in hiring and retention grants for police officers, purportedly anticipating a rise in crime as the economy recovers. Such increased policing is likely to have a concentrated impact on communities of color, who are already disproportionately impacted by the criminal justice system. JPI suggests this money would be better spent on creating jobs, housing, and treatment programs for increased public safety.

* Juvenile Justice Programs: Funding for essential juvenile justice programs has been declining for years, and the Administration is proposing a $133 million decrease this year. Evidence shows that youth who spend time incarcerated have decreased educational and employment opportunities. Currently, there are more than 90,000 youth imprisoned in the United States. Investments in prevention programs, by contrast, are associated with improved public safety and better life outcomes for youth. “At a time when the Administration can’t seem to find the time to hire someone to run the Office of Juvenile Justice and Delinquency Prevention,” stated Velázquez, “this lack of commitment to funding core programs that protect and help youth is discomfiting.”

* Drug Courts: JPI commends the federal government’s interest in pursuing treatment as an option for people with substance abuse problems as an alternative to incarceration. However, drug courts, and the criminal justice system generally, can’t and shouldn’t be used as a substitute for community-based treatment services through the public health system, where it is most effective and appropriate.

* Adam Walsh Act: Having failed to bully states with threats of funding cuts if they fail to comply with the Adam Walsh Act, the federal government is adding a “carrot” to the “stick”: $20 million to help states implement the Sex Offender Registration and Notification Act (SORNA). A number of reports have found little correlation between the use of sex offender registries and keeping children safe. In addition, broad compliance with SORNA will increase the number of people who cannot meet their basic needs (housing, employment), which is a major risk factor for recidivism. Especially hard-hit are youth on registries that may be barred from pro-social activities that can have a positive impact on improving their lives and on public safety.

* Increased Funding for Prisons: Increased funding for prison beds will likely lead to higher prison populations and expenses without significantly improving public safety. In fact, most states are reducing prison populations due to the current economic crisis and are seeking more effective solutions.

“While I hesitate to grade the Administration,” concluded Velázquez, “we certainly were optimistic that it would use the research that groups like JPI have done over the years in developing its justice budget. We hope the Administration will more seriously engage the reform community in the budget process in the future so that budgets and policies will be prioritized to one day allow the United States – land of the free-to leave behind the shameful moniker of being the world’s largest jailor.”

To read JPI’s factsheet: The Obama Administration’s 2011 Budget: More Policing, Prisons, and Punitive Policies, CLICK HERE <http://www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=87.htm> or visit this URL: http://www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=87.htm

The Justice Policy Institute (JPI) is a Washington, D.C.-based research and policy organization that promotes fair and rational justice policies. For more information, please visit www.justicepolicy.org

All’s Well that Ends Well

The Sacramento Bee reports:

Yolo County prosecutors are dropping their bid for a life sentence for a man who put cheese down his pants at a Woodland market.

A new psychological evaluation convinced prosecutors that Robert Preston Ferguson’s most recent convictions for petty theft did not warrant a life sentence under the state’s three-strikes law, said Jonathan Raven, Yolo County’s assistant chief deputy district attorney.

Raven said the district attorney’s office had recently received a psychological report, requested by the public defender’s office, that “shed some light on Ferguson.”

“The district attorney’s office is no longer looking at this as a life case,” Raven said.

I think this one pretty much speaks for itself.
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Props to Noam Finger for the link.

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?