13 December 2012

Too Many People Serve Excessive Prison Time

A Tragic Case Of Excessive Sentencing

The New York Times reminds us of an aspect of what is by far the most serious problem with the American criminal justice system.
Stephanie George and Judge Roger Vinson had quite different opinions about the lockbox seized by the police from her home in Pensacola. She insisted she had no idea that a former boyfriend had hidden it in her attic. Judge Vinson considered the lockbox, containing a half-kilogram of cocaine, to be evidence of her guilt.
But the defendant and the judge fully agreed about the fairness of the sentence he imposed in federal court.
“Even though you have been involved in drugs and drug dealing,” Judge Vinson told Ms. George, “your role has basically been as a girlfriend and bag holder and money holder but not actively involved in the drug dealing, so certainly in my judgment it does not warrant a life sentence.” 
Yet the judge had no other option on that morning 15 years ago. As her stunned family watched, Ms. George, then 27, who had never been accused of violence, was led from the courtroom to serve a sentence of life without parole.
“I remember my mom crying out and asking the Lord why,” said Ms. George, now 42, in an interview at the Federal Correctional Institution in Tallahassee. . . . 
Ms. George was a young single mother when she first got in trouble with drugs and the law. One of her children was fathered by a crack dealer, Michael Dickey, who went to prison in the early 1990s for drug and firearm offenses.         
“When he went away, I was at home with the kids struggling to pay bills,” Ms. George said. “The only way I knew to get money quick was selling crack. I was never a user, but from being around him I pretty much knew how to get it.”         
After the police caught her making crack sales of $40 and $120 — which were counted as separate felonies — she was sentenced, at 23, to nine months in a work-release program. That meant working at her mother’s hair salon in Pensacola during the day and spending nights at the county jail, away from her three young children. . . .        
When Mr. Dickey got out of prison in 1995, she said, she refused to resume their relationship, but she did allow him into her apartment sometimes to see their daughter. One evening, shortly after he had arrived, the police showed up with a search warrant and a ladder. . . .               
Mr. Dickey said he had paid her to store the cocaine at her home. At the trial, other defendants said she was present during drug transactions conducted by Mr. Dickey and other dealers she dated, and sometimes delivered cash or crack for her boyfriends. Ms. George denied those accusations, which her lawyer argued were uncorroborated and self-serving. After the jury convicted her of being part of a conspiracy to distribute cocaine, she told the judge at her sentencing: “I just want to say I didn’t do it. I don’t want to be away from my kids.”         
Whatever the truth of the testimony against her, it certainly benefited the other defendants. Providing evidence to the prosecution is one of the few ways to avoid a mandatory sentence. Because the government formally credited the other defendants with “substantial assistance,” their sentences were all reduced to less than 15 years. Even though Mr. Dickey was the leader of the enterprise and had a much longer criminal record than Ms. George, he was freed five years ago.  
Criminal defendants like Ms. George aren't people who should be serving life in prison terms.  Indeed, it is hard to justify prison terms of more than five or ten years for people in her circumstances period. 

Excessive Sentences Are The Most Important Problem With The Criminal Justice System

State and federal prisons are full of people serving incredibly long prison sentences for relatively minor offenses, while other relatively more serious felons are released after comparatively short prison terms.
The United States has the highest reported rate of incarceration of any country: about one in 100 adults, a total of nearly 2.3 million people in prison or jail. . . . Half a million people are now in prison or jail for drug offenses, about 10 times the number in 1980, and there have been especially sharp increases in incarceration rates for women and for people over 55, long past the peak age for violent crime. In all, about 1.3 million people, more than half of those behind bars, are in prison or jail for nonviolent offenses. . . .
Most other countries do not impose life sentences without parole, and those that do generally reserve it for a few heinous crimes. In England, where it is used only for homicides involving an aggravating factor like child abduction, torture or terrorism, a recent study reported that 41 prisoners were serving life terms without parole. In the United States, some 41,000 are.
In terms of the human suffering and economic waste that problems with our criminal justice system create at a big picture level, the problem of grossly excessive sentences for middling mundane crimes is a far more serious problem than the death penalty, the juvenile life without parole sentencing problem, the degree to which it is hard for innocent defendants to set aside wrongful convictions, and a whole host of other problems with the American criminal justice system.

One doesn't have to be a hard core bleeding heart liberal to understand that a criminal justice system in which the sentences imposed on criminal defendants is roughly proportional to the seriousness of the crime committed is the correct one.

Excessive sentencing for minor crimes needlessly costs immenses sums of money for the public that must be paid for with taxes, wastes and destroys the lives and families of people who could otherwise have made positive contributions to society, and undermines respect for the criminal justice system and governmental authority generally.  Likewise, insufficiently serious sentences for dangerous criminals who have a high risk of recidivism puts the public at risk of being harmed by future criminal acts.

Right now, excessive sentencing in a large number of specific situations that are important in the aggregate are the greater problem and are summarized below as "Hot Issues." 

But, there are some criminal offenses, such as recidivist drunk driving, where the rigor of the sentences may be insufficient. 

Also, American sentencing practices tend to be overly lenient in sentencing defendants with few prior convictions, often imposing no more than probation and a fine for less serious offenses until a breaking point is reached when a very harsh sentence is imposed for the current offense, often taking offenders by surprise, rather than imposing genuine but moderate punishments in a more consistent manner, which is the approach that has been shown to be most effective.

There Are No Meaningful Safety Valves To Address Excessive Sentences

In a series of U.S. Supreme Court cases over the past few decades that have basically gutted the protections of the 8th Amendment, any sentence up to life in prison without possibility of parole (although not the death penalty) by a prior felony offender has been held not to violate the 8th Amendment to the Constitution's protection against cruel and unusual punishment, for anything but the most trivial of petty misdmeanors.

Once upon a time, the power of Governors and the President to commute sentences in the prison systems managed by their respective executive branch subordinates provided a meaningful safety valve in cases where excessive sentences were imposed due to judicial abuses of discretion or a failure to legislatures to understand the practical implications of their criminal statutes as they are applied.  But, use of the the power to commute sentences currently being served as withered to a tiny trickle in almost every state and at the federal level. 

The last significant mass commuation and pardon grant for non-death penalty offenders was when the President of the United States pardoned Vietnam draft dodgers who had emmigrated to Canada or gone underground.

Even when legislatures reform criminal sentences that are excessive relative to the offense in some cases, they frequently do not make these revisions retroactive, something that would be unconstitutional in many countries.

There Is Room To Correct Past Mistakes At A Modest Administrative Or Societal Cost

A reluctance of reopen the process in the case of criminals sentenced to four or five years in prison, for example, may be appropriate.  If the law is corrected going forward, the mistakes of the past will work their way through the system soon enough.  The benefit to society that can be obtained by releasing someone who should have served only a few months in jail from prison when that person is already half way through a four or five year sentence is modest.  But, when people are sentenced to ten, twenty or forty years in prison, or life in prison, and those individuals still have many years left to serve, there is an immense benefit to society that can be enjoyed by revisiting these sentences.

The outrageous point here is that the problem is excessive sentences is one that is capable of being mitigated if elected officials merely develop the necessary political will.  We as a society don't have to keep women sentenced to life in prison without parole for low level drug offenses fifteen years ago in prison for another thirty more years if we choose not to.

The process of systemically identifying large classes of offenders who are likely to have received excessive sentences as a result of flawed sentencing laws, and then of reviewing those cases on a case by case basis, is far more tractable than opponents of this kind of leniency would have you believe.  And, the benefits of doing so, from a public finance perspective, from the standpoint of the overall economic health of the country, and from the perspectives of fairness, justice, humanity and mercy, are great.

But, so far, too few elected officals have been brave enough to commit to addressing this serious social, economic and fiscal problem.

One piece of good news is that the overall problem of excessive incarceration is really the product of a lot of distinct smaller problems, each of which can be beneficially addressed piecemeal, as much as it is the product of one overarching problem. 

There are solutions, like changes in 8th Amendment jurisprudence and commutation and pardon practices (such as institutions like innocnence commissions) could provide systemic overall solutions.  But, overall solutions aren't necessary to solve a large share of the problem.  Case by case instances of politicians developing constitutional fortitude could make a huge difference, particularly at the federal level.

There Are Few Opportunities To Correct Wrongful Convictions

It is also almost impossible to overturn a wrongful conviction that has been affirmed on direct appeal, via post-conviction judicial review, in cases that do not involve the death penalty or DNA evidence that definitively establishes that the wrong person was convicted.  This is true even when new evidence makes the jury's decision, in hindsight, doubtful, when prosecutorial misconduct can be demonstrated, or when a criminal defendant's defense counsel may have seriously failed his or her client.  While perhaps 90% of cases plea bargain, and empirical estimates have put the accuracy of jury verdicts at about 90%, something like one in a hundred criminal convictions are the result of inaccurate jury verdicts and only a modest share of these convictions for offenses other than capital murder or rape are ever set aside.  A wrongful conviction rate of about 1% of criminal cases charged per year doesn't seem like much, until one considers just how many millions of criminal cases are commenced each year.

A large share of all cases where post-conviction mitigation of sentences or convictions are allowed involve death penalty cases, rape cases where there is a DNA based exoneration, mass relief when a corrupt judge is exposed, or mass relief when a large scale pattern of fraud by a small law enforcement unit is discovered.

The Innocence Penalty

A particularly troubling aspect of the extent to which it is hard to review wrongful convictions is that the sentences available to those who plea bargain are generally much shorter than the sentences available to criminal defendants who turn down a plea bargain and are convicted at trial.  The disparity between the sentence available for a defendant who pleas guilty and one who is convicted at trial is generally greatest when the case that the defendant is guilty is weakest.

Yet, empirical studies have determined that defendants who believe themselves to be actually innocent are much more likely to go to trial and trust that they will be aquitted, even when the objective evidence and assessment of the case by people familiar with the workings of the particular court in question suggest otherwise.

Thus, people whose guilty (at least of the offense of conviction, even if they are guilty of something) is debatable who believe themselves to be innocent are systemically most likely to receive the longest sentences of incarceration. 

Of course, in an ideal world, we would like to have institutions that produce the opposite result, with people who believe themselves to be innocent and are found guilty at trial to tend to receive the most lenient, rather than the longest sentences.

Hot Issues In Federal Sentencing

In the federal system, long sentences that are particularly notable fit a few main profiles.

Drug Sentencing

Drug offense sentencing in the federal system (and in state criminal codes modeled on the federal act) bear little connection to the culpability of the offender (focusing instead on the weight of the drugs seized), and have high mandatory minimum sentences in many cases that are far out of proportion to the economic scale of operations implied by a particular quantity of drugs.  Excessive drug sentences are the single greatest factor bloating federal prisons.

Chid Pornography

Child pornography possession cases also low thresholds of culpability proof (possession and the barest minimum of knowledge is sufficient to convict), and often inappropriately involve separately charged offenses for each image that are to be served consecutively rather than concurrently.  Thus, the sentence for possession of twenty child pornography images may be 100 years even though the sentence for possession of one child pornography image may be only 5 years, despite the fact that there is no reason to think that the number of child pornography images in someone's possession has much of anything to do with the seriousness of the offense. 

As a result, otherwise harmless dirty old men who have done nothing more than download sexual pictures of children from the Internet on their private home computers (without even paying for it and hence economically encouraging the trade) often receive child pornography sentences longer than the serial child rapists who make child pornography and personally violently exploit the children depicted.  It is entirely legitimate to conclude that these men should be prosecuted for their criminal offenses and perhaps that some of them should even be subject to sex offender reporting, at least for some period of time, once they are released.  But, it is very hard to see a justification of hard prison time for child pornography offenders who are not involved in the production of child pornography and do not reap material economic gains for any involvement they have in distributing child pornography.

Firearms and White Collar Crime Sentences

Federal sentences for firearms violations involving felons, and large dollar white collar crimes are also very long, but there is more widespread sentiment that the nature of the offenses and the nature of the offenders in these cases more often justify these long sentences. In the case of firearms violations involving felons, the belief that strict enforcement may prevent future crime is understandable. In the case of large dollar white collar crimes, the offenders may not pose much of a threat to the public if allowed to be at large, but the harm caused is so immense that the punishment may fit the crime.

Excessive Leniency Towards Violent Crime In Indian Country

In contrast, sentences for violent offenders like rapists and murders who commit crimes on federal lands and in Indian Territory, often receive astonishingly lenient sentences relative to those sentences imposed for comparable crimes in state courts.  The investigation and prosecution of these crimes is also often indifferent and ineffective.

Immigration Crimes

Federal criminal sentences for the lowest level federal immigration offenses aren't particularly long when the individual offense is weighed against the length of the sentence, at least compared to other outrageous federal sentencing issues.  But, while historically almost everyone to be found to be present in the United States illegally was simply deported (which is a civil matter), the recent trend has been to incarcerate a large proportion of people who have previously been deported pursuant to a criminal conviction before deporting them.  The sheer volume of relatively minor criminal immigration cases has caused these cases to have a major impact on incarceration costs and to heavily burden criminal justice system resources without providing much discernable impact on the likelihood that people will illegally immigrate to the U.S.

Hot Issues In State Sentencing

On average, the proportion of all state court imposed prison sentences in the United States that are excesssive isn't quite as great, but there are still a great many of them.

Three Strikes And Recidivist Sentencing

One of the most egregious group of inmates serving excessive sentences for relatively minor, non-violent offenses involves individuals sentenced under California's Three Strikes law which California voters repealed at the ballot box last month. Under that law, offenders with three prior non-violent felonies have been sentenced to life in prison without parole for offenses as minor as petty shoplifting and the courts have upheld those sentences in the face of 8th Amendment challenges.

Recidivist sentences also lead to excessive sentences compared to the offense, even allowing for the need for meaningfully longer sentences for recidivist offenders, in many other states. 

Typical problems with recidivist sentencing statutes include counting very stale convictions of offenders who have spent many, many years living as law abiding citizens, allowing relatively minor felonies to be considered in three strikes kinds of statutes rather than limiting these serious habitual offender sentences to repeat serious felons, treating crimes that would otherwise be misdemeanors as felonies when committed by recidvists, allowing offenses for which the defendant was not convicted at the time a new offense was committed to count as "strikes" under recidivist statutes, and abandoning any effort to relate a recidivist sentence to the seriousness of current crime of conviction.

Colorado is, on the whole, a fairly reasonable state by all of these measures, and with one notable exception in the case of a particular suburban prosecutor who has been forced from her office by term limits, prosecutors in the state generally invoke their full power to secure recidivist sentences sparingly, despite the fact that the amount of additional proof required to secure these immense sentence enhancements is trivial.

Drug Offenses

Many states, like the federal government, have extreme sentences for drug offenses, for essentially the same reasons.

Child Pornography

Excessive child pornography sentences are almost as common in state courts as they are in the federal courts.


Most states have a crime known as "felony murder" that exposes criminal defendants to the same sentences as other forms of first degree murder (typically life in prison without parole or the death penalty), even if the individual convicted merely played a minor role within a group of people carrying out a burglary, or car theft, or robbery, and that individual did not participate in any way in killing someone (indeed, even if the individual urged the persons who did kill someone not to do so), did not organize or lead the group, and had not set out at the time that felony-murder liability attached to commit any crime that would result in someone's death.  The minimum level of culpability for a felony-murder offense is simply intent to participate in some felony such as burglary or theft.

The U.S. Supreme Court has upheld even death sentences for even the least culpable adults on felony murder charges against 8th Amendment challenges, although the requirement that a sentencing jury make a death penalty v. life in prison without parole determination, and the exercise of discretion by prosecutors, means that minor participants in felony-murder cases overwhelmingly are sentenced to extremely long prison terms that far exceed that of other defendants with similar levels of culpability, rather than the death penalty.

Neo-Natal Homicides And Some Child Abuse Sentences

Many states sometimes impose very excessive sentences on women whose babies die while they are in the throes of child birth away from hospitals or other support.  Colorado and some other states, more generally, impose sentences that are far out of proportion to the sentences that would be imposed if a similarly culpable crime was committed against a stranger, for child abuse offenses.

Stacking Sentences From Multiple Counts

Excessive sentences arising from concurrent sentences for many counts of guilt for relatively minor felonies is also a common fact pattern for excessive state sentences in a wide variety of circumstances.

Parole Violations

Disporportionate incaraceration consequences for relatively minor parole violations is also a widespread problem in state criminal justice systems, although several states have recently addressed this issue.

can’t believe myself it could happen in America.”

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