Book Explores Black Culpability in Creating Mass Incarceration

James Forman Jr., a Yale law professor and former public defender in Washington, D.C., explores the culpability of black politicians, criminal justice officials, clergy members, activists and others in creating mass incarceration. His book is “Locking Up Our Own: Crime and Punishment in Black America.”

James Forman Jr., a Yale law professor and former public defender in Washington, D.C., explores the culpability of African Americans in creating mass incarceration in his new book, “Locking Up Our Own: Crime and Punishment in Black America.” The New York Times says the”superb and shattering” book pivots on the question of how people, acting with the finest of intentions and the largest of hearts, could create a problem even more grievous than the one they were trying to solve. Referring to Washington, he writes, “How did a majority-black jurisdiction end up incarcerating so many of its own?”

Forman’s is compassionate. Seldom does he reprimand the actors in this story for the choices they made. When he discusses policy decisions first made in the 1970s, the audience knows what’s eventually coming — that a grossly disproportionate number of African-American men will become ensnared in the criminal justice system — but none of the players do. Not the clergy or the activists; not the police chiefs or the elected officials; not the newspaper columnists or the grieving parents. The legions of African Americans who lobbied for more punitive measures to fight gun violence and drug dealing in their own neighborhoods didn’t know that their real-time responses to crises would result in the inhuman outcome of mass incarceration.


Grassley Meets With Kushner on Sentencing Reform Bill

The measure never reached the Senate floor last year. Attorney General Jeff Sessions opposed it, and President Trump’s stand is not clear.

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) met with White House adviser Jared Kushner about criminal justice reform yesterday, the Associated Press reports. The session gave supporters a small sign of encouragement that the issue could be revived under President Trump. The bipartisan effort would revise 1980s and ’90s-era federal “tough on crime” laws by reducing some mandatory sentences for low-level drug offenders and given judges greater discretion in sentencing.

A bill died in the Senate last year over conservative opposition, and its future is unclear Attorney General Jeff Sessions, then a senator from Alabama, was a fierce opponent. Former President Barack Obama was an enthusiastic backer. Supporters were skeptical that Trump would be as well, after he dubbed himself  a “law-and-order candidate” and talked about with terrorism in big cities and attacks on police. On whether the bill could be revived, Grassley said, “We’re trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year.”



As Death Penalty Loses Favor, Life Without Parole Terms Grow

Life-without-parole sentences have soared to more than 1,000 inmates in Oklahoma, costing a minimum of $17 million a year the Tulsa World finds,

As the death penalty loses favor with juries, life-without-parole sentences have silently soared to more than 1,000 inmates in Oklahoma, costing a minimum of $17 million a year, the Tulsa World reportsOn average since 2000, about 35 inmates each year enter prison for life without parole, while four with the same sentence exit custody, usually by dying. Life without parole was allowed in 1987 as an alternative to the death penalty. While a provision allows for clemency, it does not guarantee the same level of state appeals or any federal appellate oversight as capital punishment. It has also been meted out for nonviolent crimes such as selling drugs.

Lynn Powell, of the nonprofit OK-Cure, a prison watchdog group, says these sentences are now getting a second look nationally. “It’s the death penalty but without an execution date,” she said. “There are groups in other states who are working to have appeals in place to review those cases the same as the death penalty cases. The problem right now is that they don’t all get reviewed, and those aren’t getting applied equally across the state.” The 885 inmates serving life-without-parole sentences represent just 3 percent of the total Oklahoma inmate population, but that figure is certain to grow. Since the number of inmates entering prison with that sentence spiked in the mid-’90s with a crackdown on drug crimes, the annual number receiving life-without-parole terms continues to increase generally.


AZ Abolished Parole; Judges Still Include It in Sentences

For more than two decades, Arizona prosecutors, defense attorneys, and judges have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years, reports the Arizona Republic.

For more than two decades, Arizona prosecutors, defense attorneys, and judges have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years, reports the Arizona Republic.  Some of those deals are about to come due. Danny Valdez was part of a 1995 drug deal that went bad. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and the judge sentenced him to life in prison with a chance of parole after 25 years. The only problem was that parole was abolished in Arizona in 1993. It was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive. Valdez should have been sentenced to “life with chance of release after 25 years.”

Parole was something that could be granted by judgment of a parole board, based on the prisoner’s behavior and rehabilitation, without the approval of a politician. Release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn’t existed in Arizona since 1994. Even if a judge’s sentence includes parole, it still won’t happen. Yet since then, hundreds of defendants have been sentenced to life with chance of parole. Valdez has served 22 years of his sentence. No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing. He found out when he received a letter last December from The Republic.



Drug Cases Lead Federal Offenses, Sentencing Panel Says

The average length of imprisonment increased slightly from fiscal 2015 in cases involving methamphetamines, from 87 months to 90 months, but decreased in marijuana cases, from 32 months to 28 months, says the U.S. Sentencing Commission.

Drug cases accounted for the largest single group of federal offenses in fiscal year 2016, comprising 31.6 percent of all reported cases, the United States Sentencing Commission says in its annual report. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 81.6 percent of all cases reported.

The total number of federal criminal cases dropped last year by 3,261 to 67,742, the commission said. The race of offenders was largely unchanged, with 53.3 percent of all offenders were Hispanic, 22.3 percent white, 20.4 percent black, and 4.0 percent of another race. Non-U.S. citizens accounted for 41.7 percent of all offenders. Among drug cases, offenses involving methamphetamine were most common, accounting for 30.8 percent of cases. Drug sentences remained relatively stable across all drug types. The average length of imprisonment increased slightly from fiscal 2015 in cases involving methamphetamines, from 87 months to 90 months, but decreased in marijuana cases, from 32 months to 28 months. In fiscal 2016, 44.5 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty, compared to 62.2 percent of drug offenders in fiscal year 2013 – the year that the U.S. Attorney General directed all U. S. Attorneys to change their sentencing practices.



Feeling ‘Dirty’ About Sentencing

Retired Federal Judge Schira Scheindlin has said mandatory-minimum requirements made her feel “dirty.” Other judges have joined the chorus of justice reformers who complain rigorous sentencing guidelines are unfair. But are they addressing the wrong problem?

Last month, retired federal judge Shira A. Scheindlin shared her experiences imposing mandatory minimum sentences in a Washington Post “Perspective” piece.

“Mandatory minimums were almost always excessive,” she wrote, “and they made me feel unethical, even dirty.”

According to Judge Scheindlin, “The fact that the United States, with less than 5 percent of the world’s population, incarcerates 25 percent of the world’s prisoners is largely due to mandatory minimum sentences.”

Scheindlin describes encounters with a series of prisoners she was forced to sentence to minimums, each crushed under the wheels of “our laws.”

It turns out that the judges are blameless in this process—although Judge Scheindlin apparently feels even more blameless than the others.  What, after all, could judges do in the face of the statutes?

Judge Scheindlin joins a swelling chorus of ex-presidents, retired judges, and remorseful former prosecutors who agree that we have a mass incarceration disaster on our hands.

Despite its diversity, the choir sings the same hymn: “The Law Made Us Do It!”

No it didn’t.

“The Law” gave criminal justice practitioners the tools to do it with, but they chose to pick up the tools and to use them.

Unless we all face up to that fact and understand why the choices these actors made seemed like good ideas to them at the time, they (or their successors) will, after a decorous interval, just do it again,  whether there are mandatory minimums in place or not.

The fact is, in every one of the cases Judge Scheindlin describes—and in the 1,715 cases that ultimately won commutations from President Obama because he decided the sentences were extreme—there was a moment when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke.

They could have zigged, but they chose to zag.

Much of the punditry on the “criminal justice reform” issue is based on a false understanding—or at least one so radically incomplete that it might as well be false— of the sources of distended sentences and warped racial impact.

This dominant explanation of the roots of mass incarceration imagines that some legislator, prosecutor or judge sat and pondered the interaction of various substantive criminal law goals such as punishment, deterrence, incapacitation, and rehabilitation, and decided on a legislative scheme, a prosecutorial strategy or a sentence.

Next, they picked a number based on a careful policy calculation.

Our predecessors miscalculated. So, we will simply find a new, better number: change the statute, rewrite the Guideline.

This top-down approach—the one that Judge Scheindlin’s piece exemplifies—obscures the actual problem.

Judge Scheindlin’s preoccupation with the subjective personal discomfort experienced by sentencing judges may seem strange to readers more impressed by the horrific impact of the sentences imposed on the defendants and their families, who might understandably respond,  “Who cares what you feel?”

But, in fact, Judge Scheindlin’s discomfort  provides an important clue to what is really happening.

What we confront here is not a dispute among mandarins about sentencing philosophy that can be permanently resolved by legislative amendments on high.

What we actually face is a population of cops, lawyers, probation officers, and judges trying to get through their days. They are not driven by ideological commitments or racist theories. But they are under pressure, from the political and media climates, their caseloads, the docket lists, their peers, and the administrators who thirst for “outputs.”

No one sets out to do extraordinary harm to individual minority defendants; it’s worse than that. The fact is,  most of the frontline actors don’t know enough about any individual minority defendant to target one.

They barely take time to see them.

These players are seeking their own comfort and safety as much as they are seeking anything, and their strongest allegiance is to the path of least resistance.

They want to get rid of the damned case without a trial, and to move on to the next one. Then, tomorrow, they will be able to handle the next next case in the same way as long as they manage to preserve the “going rate” today.  Long sentences are a weapon in their struggle, not their ultimate goal.

Their decisions may be incorrect, and they may not be exactly admirable; but they are rational. They solve their personal local problem, at least for a moment.

Eliminating some mandatory minimum sentences was a step in the right direction; there are many more we can and should eliminate.  (A significant  point that Judge Scheindlin does not address is that the threat of mandatory sentences provides a powerful plea bargaining  weapon that is almost as distorting as  as the executed sentences themselves.)

But eliminating mandatory minimum sentences is not a magical cure.  The social science research of scholars such as Fordham’s John Pfaff tells us that our promiscuous use of prison time is only marginally a question of the length of mandatory sentences.

The perspectives of the frontline operators would tell us the same thing if our op ed columns were open to them as well as to judges.

The core of Judge Scheindlin’s essay is her lament that “While I bore the title ‘Honorable Judge,’ I felt less than honorable and more like a complicit tool of an unjust system.”

The strange thing is that Judge Scheindlin shrinks from the implications of  her own observation.  Yes,  she’s right, the distended sentences she decries are system errors. They are not the result of legislative blunders.

The answer to the question “Who is responsible for this grotesque result?” is: “Everyone involved, to one degree or another, if not by making a bad choice, then by failing to anticipate and intercept or discourage someone else’s.”

Sure, “everyone” does include legislators and Sentencing Commission members, but they do not act alone, and they couldn’t have created the results by themselves.

They needed cops, probation officers, prosecutors, defenders and, yes, judges.   (This same logic applies just as fully to sentences that are too short:  for example, to the release of manifestly dangerous individuals who could have been kept off the streets.)

Maybe Judge Schiendlin is wrong to feel “dirty.”

But none of us who have been involved in the American criminal justice system over the last quarter century should feel too clean either.  Our collective impact has been too devastating; its racial biases too stark.

Preventing mass incarceration depends on understanding where mass incarceration really came from—charge by charge, case by case, sentence by sentence.

Judges don’t have to resign to protest the sentencing laws in order to be effective in bending the future in the right direction.  (Although one, John S. Martin of the Southern District of New York, did resign, and his resignation amplified his eloquent statements on the issue.)

The judiciary could take the lead by issuing a call to convene the careful all-stakeholders examination of the system’s operation in (for example) any one of the 1,715 federal sentencings that drew President Obama’s attention—an examination that is not aimed at blame but at understanding and prevention.

They could call everyone to the table—and include the members of the communities where sentences impact safety in the conversation.

Blaming the appalling aggregated numbers on the statutes, and then strenuously washing our hands won’t work very well.

But if we take a measured look at why we all did what we did, and to whom we did it, we might all start feeling a little cleaner together.

James Doyle is a Boston defense lawyer and author, and a  frequent contributor to The Crime Report.  He welcomes  readers’  comments.



















FL Panel: End Mandatory Terms in Nonviolent Cases

Florida Senate committee approves measure that the Miami Herald calls “a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.”

Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration in Florida costs taxpayers $18,064 per year — or $451,600 by the time she is released in 2023. The Florida Senate Criminal Justice Committee concluded this week that’s money poorly spent, the Miami Herald reports. It voted unanimously for a bill that would end minimum mandatory sentences for nonviolent offenses like Powell’s. The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.

The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said the sponsor, Sen. Daryl Rouson. It would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers. It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violent offense is not eligible for leniency. Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, committee chairman.


Dallas Surgeon Gets Life Term for Botched Surgeries

A Dallas jury sentenced neurosurgeon Christopher Duntsch to life in prison after they heard from patient after patient who testified that he seriously maimed them while they were under his knife.

A Dallas jury sentenced a neurosurgeon to life in prison after they heard from patient after patient who testified Christopher Duntsch seriously maimed them while they were under his knife, reports the Dallas Morning News. Duntsch, 46, was accused of crippling four patients and causing the death of two between July 2012 and June 2013. His 13-day trial focused only on a charge of injury to an elderly individual, a first-degree felony where someone “intentionally, knowingly, recklessly, or with criminal negligence” injures an elderly person.

Mary Efurd, was 74 in 2012 when she went under Duntsch’s knife and lost a third of her blood and the full use of her legs. “I trusted him,” Efurd testified. “I trusted that he would do what was right.” A doctor who treated Efurd after her botched surgery said Duntsch had “done virtually everything wrong.” Dr. Robert Henderson found implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated. “It’s as egregious as you can imagine,” Henderson said. Jurors heard from patient after patient who sought surgery from Duntsch to fix back problems, only to be left disfigured or immobilized and in excruciating pain.


FAMM Broadens Mission to Take on Prison Reform

With prospects for sentencing reform dimmer in Congress, the new leader of Families Against Mandatory Minimums, Kevin Ring, will pursue improvements in inmate rehabilitation. Ring formerly worked for Republicans, has served a prison term himself for white-collar crime.

Under the new leadership of Kevin Ring, Families Against Mandatory Minimums plans to broaden its mission beyond sentencing reform to include prison reform broadly, including everything from in-prison education to mental health, the Wall Street Journal reports. The group hopes such efforts could appeal to tough-on-crime legislators eager to reduce repeat offenses. After Donald Trump won the presidency, FAMM told donors that the prospects in Congress for sentencing reform “certainly have decreased.”

Ring may be well-positioned to make that case because he is well-known to Capitol Hill Republicans. “People can’t say he’s some left-wing crazy,” said Pat Nolan of the American Conservative Union Foundation. In 1998, working for then-Sen. John Ashcroft (R-MO) Ring pushed a bill imposing harsher sentences on methamphetamine trafficking. he now deeply regrets. He then worked for Republican lobbyist Jack Abramoff, and in 2011 Ring was sentenced to 20 months in prison for his role in a bribery scheme to provide officials perks including vacations, meals and event tickets. In prison, he was struck by how unprepared his fellow inmates were to re-enter society.


Mauer ‘Not Overly Optimistic’ About Sessions on Sentencing

With support from some Republicans at the state level, reform there “will continue to a significant extent,” says Marc Mauer, director of The Sentencing Project. In D.C., whether Sessions ” “makes this a priority issue or lets his GOP colleagues on Capitol Hill take the lead will tell us a lot about the prospects.”

“I’m not overly optimistic’ about the prospects for federal sentencing reform under Attorney General Jeff Sessions, Marc Mauer of The Sentencing Project tells AlterNet. He notes that the Alabama senator has backed “some criminal justice reform in the past, most notably the Fair Sentencing Act and the Prison Rape Elimination Act … but in other areas, he’s pretty much a hardliner. He was one of a handful of Republicans who vocally opposed sentencing reform legislation that was moving through Congress last year.”

Mauer says that whether Sessions “makes this a priority issue or lets his GOP colleagues on Capitol Hill take the lead will tell us a lot about the prospects.” With support from some Republicans at the state level, reform there “will continue to a significant extent,” Mauer predicts, noting that “by now, a number of states have had good experiences with reducing prison populations, with no adverse effects on public safety. The public has been supportive, or at least not opposed.” His conclusion is that “criminal justice reform has never been easy … but it’s come to the point where the public environment has been shifting in a more rational, compassionate direction.”