Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing “Obama” with “Schwarzenegger” in this article? Nope, me neither, but it feels good to think about it…]

Obama backing off strict crime policy
by Josh Gerstein

http://www.politico.com/news/stories/0910/42004.html

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, ‘OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.’”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Eight Prisons in the Netherlands Close: Undercrowding

I found this interesting NRC Handelsblad story via the MPP blog:

The Dutch justice ministry has announced it will close eight prisons and cut 1,200 jobs in the prison system.

A decline in crime has left many cells empty.During the 1990s the Netherlands faced a shortage of prison cells, but a decline in crime has since led to overcapacity in the prison system. The country now has capacity for 14,000 prisoners but only 12,000 detainees.

Interestingly, this “crisis” in the Netherlands is to be remedied by outsourcing prisoners from Belgium. I leave the analogies and ironic head-shaking to you, gentle readers.

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Many thanks to Andrea Lobel-Shainblum for the link.

Daedalus Issue on Mass Incarceration

Our readers might be interested in the special issue of Daedalus, the Journal of the American Academy of Arts & Sciences, devoted to mass incarceration. The coverage is quite extensive and includes pieces by the best known names in the field. This might make an excellent read for people interested in more background on the big picture, comparative trends, seeing the incarceration crisis in light of the broader neoliberal picture, etc. We’ll post reviews of selected articles in the volume.

Most Prisoners Come from Few Neighborhoods

GREAT ARTICLE! Check out http://www.sciencenews.org/view/generic/id/62317/title/Most_prisoners_come_from_few_neighborhoods for a write-up, subtitled, “‘Incarceration Hot Spots’ Inculcate a Vicious Brand of Hopelessness,” of this new Harvard sociology paper.

My favorite quotes:

“Mass incarceration in the United States has a deep local concentration in relatively few disadvantaged communities,” Sampson asserted.

Chicago crime data for 1990 to 1995 show that a large majority of prison and jail populations came from two poor, black sections of the city, Sampson and Loeffler found. During that time, overall rates of crime and violence declined in Chicago while incarceration rates rose in those two areas.

Does Felon Disenfranchisement Amount to Discrimination?

This question will be raised soon at the Supreme Court.

As many readers probably know, many U.S. state laws prohibit current inmates, and to differing degrees formerly incarcerated people, from voting. Accepting this as a given situation ignores other countries, in which felons (and, of course, former felons) can and do vote, and can under certain circumtances run for office. The disenfranchisement of felons has actual impact on election results: In a 2001 article, Jeff Manza conducted a fascinating quantitative quasi-experiment, proving that, had felons been allowed to vote, several U.S. senate elections, and at least one presidential election, would have come out differently.

These findings may play an important part in the upcoming discussion at the Supreme Court. SCOTUS will review a First Circuit case, Simmons v. Galvin, in which Massachusetts inmates argued against a 2000 legislative amendment disenfranchising felons. The argument is rather creative, and it goes as follows:

 (1) … the Commonwealth’s disenfranchisement provisions violated the Voting Rights Act (“VRA”) § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state;  and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art.   I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect.   As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters.   All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting.   Theirs is a claim of disparate impact.

The 1st Circuit found that the Voting Rights Act was not violated; that is, that it never intended to prevent states from disenfranchising felons. Citing a 1967 case:

[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.

That said, there is still room to argue that the disenfranchisement of felons, combined with the de facto overrepresentation of minorities, amounts to racial discrimination, which goes against the voting rights act. This is an interesting argument, and I expect it will not be an easy one to raise in the Supreme Court; our approach toward discrimination tends to rely a lot (too much) on questions of intent. In any case, it will be a discussion worth following.

Norwegian Prisons Revealed

The image to the left depicts, believe it or not, a prison yard. A recent story in Time Magazine shows the beautiful and creative surroundings in a Norwegian prison. This penological approach, which characterizes Scandinavia and is very alien to our experiences here in the U.S., raises many questions. Is crime in Norway fundamentally different, so as to require less security and allow for more rehabilitative activities? Or are we more surveillance-and-security oriented, and if so, why?

What Inmates Think About Early Releases

This piece is about a week overdue, but I trust our readers will find it interesting. Our friends at PrisonMovement are linking to a New America piece in which two inmates express insightful, grim opinions about the prospect of early releases. One of them, Dwight Abbott, writes:

The facts today are now known by anyone who reads the newspaper; California’s Corrections Administration has always known them. Yet, it took a federal takeover to squeeze out an admission that “there are problems.” This from the same people who immediately after, refused to comply with demands to repair what is broken. All the while, both sides — the courts who have the authority to force the reform, and the state officials not wanting it to — appear to have forgotten the inmates who are continuing to die unnecessarily because of the inhumane conditions being wrangled over… Collateral damage.

End overcrowding? End warehousing and abusing incarcerated juveniles? Compel California to act on previous court orders issued through the years? The Administration has no fear of the courts, with good reason. No person calling the shots in this matter has yet to be charged (much less jailed) for being in contempt of a court mandate after refusing to comply. Until that changes, the children will not be “rehabilitated.” They will not be allowed an education (locked inside a 4’x4’ screened cage five hours a day), participate in therapy, or to partake in vocational training, watched over by an independent watchdog group assuring what is supposed to be happening. The 90% recidivism rate among juvenile offenders will not change. They are fodder to fill the state’s bloated adult prisons.

What programs could be brought to life to change this dismal, unending record of failure? In the long run, only a return to indeterminate sentencing, with built-in incentives (like early release) for prisoners to participate can work to reduce a cycle that no one seems able or willing to break. If prisoners knew that immersing themselves in programs that teach them to read, to address their addictions, to learn violence reduction strategies, to have access to vocational training that actually prepares a prisoner for meaningful employment, you would see a dramatic decline in the worst aspects of prison life, and a dramatic increase in legal and productive behavior when they hit the streets, as almost all will.

What to do right now about overcrowding? Admit parole is a fake! Under California’s sentencing guidelines, those today being paroled have, in reality, completed their sentence. The problem lies with the courts adding on years of parole, to be served after a sentence is completed. Implemented, perhaps, with the best of intentions, in truth, parole only serves a huge number of men and women employed by the state as Parole Officers at a cost of over a billion dollars annually. They in turn guarantee the CDCR its prisons remain overcrowded with “technical parole violators,” which then guarantees prison guards (whose annual salary ranges between $50,000 and $60,000) an opportunity to pad their checks with an additional $100,000+ of taxpayer’s money in overtime pay each year.

What should be obvious to anyone reading this: there is no need to release so much as one convict who has not yet completed his/her sentence. Instead, release those who have, and are presently among the 30,000 “technical” parole violators who, at any given time, languish in California’s overcrowded prisons for up to one year, trapped by a broken system which has recidivism rates of close to 70%, the highest in the United States.

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Props to Jerry Jarvis for the link.

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.

Why Riots? Ingredients for Moral Panic

Many of our readers are probably already abreast of the events in Oakland last night. The Oakland Tribune live blog offered full coverage. The bottom line is that what was a peaceful demonstration in the evening (when I was there, at around 7:30-8:00pm) turned, after sundown, into a looting scene that led to 83 arrests. This, of course, is saddening. Protest over the outcome of Mehserle’s trial should never have turned into an ugly display of property crime. It is important to mention that, in the earlier hours, I heard multiple calls from speakers and community organizers to maintain the peace; that the many hundreds of people who gathered at 14th and Broadway were engaged in a peaceful protest; that displays of verbal violence and incitement were often, according to reports, countered by people from the community discouraging them; and that we have no information on whether the looters arrested were locals or out-of-towners that took advantage of the events to commit ugly and serious property crime. In any case, stealing sneakers from an athletic store is hardly a useful way to make a political statement.

What we can, however, examine, is why riots happen in the first place. While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.

And then, of course, there’s this. The irony, I believe, would be lost on the ABC7 anchorperson.

Another related issue pertains to the safety of Mehserle himself, should he be sentenced to prison time (which he very well might, unless the judge stays the gun enhancement). Regardless of geographical location, I can’t imagine this will be an easy stint in prison. Does any of our readers know how CDCR guarantees the safety of unpopular inmates?