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.
“Tough on crime” -> violence -> incarceration
According to this new report from the Urban Health Research Institute, drug prohibition and mandatory minimums lead to violence… even in Canada. This is strong evidence that some Californian attempts to deter crime actually increase crime, worsening the correctional crisis. Even if you don’t have time to read it, I recommend at least checking out their executive summary here.
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/
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?
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.