- Nov 2015
Chin, Gabriel J., (2013). Race and the Disappointing Right to Counsel. The Yale Law Journal. Vol. 122(8). P. 2236(24).
“Race and the Disappointing Right to Counsel” by Gabriel J. Chin addresses the insufficient outcome of the Gideon v. Wainwright decision. This asserted that no American can be denied the right to counsel based on class. Essentially, that if you cannot afford an attorney, one will be appointed for you. However, this case also said that the representation you are given must be adequate. According to Chin, Gideon had two purposes: “First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit…The Court’s second goal was to protect African American subject to the Jim Crow system of criminal justice” (Chin, 2013, 2236). Furthermore, Chin goes on to point out that the prison population has become far more racially disproportionate since the Gideon decision. “To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color” (Chin, 2013, 2236).
The Supreme Court has been hearing cases based on racial discrimination in the justice system long before Gideon. The author notes two relevant cases: Walton v. State and Griffin v. State, in which the Supreme Court deemed that the two defendants could not be held accountable for what they were convicted of because they did not understand the laws they violated. This of course set an interesting precedent in our justice system because it asserted that African American defendants couldn’t understand the law- which is not true. It did, however, set precedent for future cases where African American defendants may be treated unfairly based on their race. A more notable case, Brown v. Board of Education was another mentioned by Chin that points out the fact that we need to “craft a criminal justice ‘system in which racial discrimination would be eliminated root and branch” (Chin, 2013, 2239).
Another crucial thing to consider are vagrancy laws. Essentially, they were put into place to further racial oppression by making it illegal for people to loiter or wander. Not only do these laws make little sense, but they made local municipalities money. The author states on page 2245, “For many of these offenses, no bias on the part of judges or juries or inadequacy of counsel was necessary to convict, because any person charges could reasonably be found guilty of, say, being near a building or property without a satisfactory excuse. In many parts of the South, convicting African Americans on vague charges was a profit center for both local governments and local businesses” (Chin, 2013, 2245). Obviously, vagrancy in itself was an attempt to oppress minority populations further.
Plea bargaining is also mentioned by Chin as a consequence of Gideon. Gideon was a case based on the premise that all people have the right to counsel for trial. Plea bargaining completely negates that right, and people are encouraged to stay away from trial because they could be punished more severely. Furthermore, the point of plea bargaining was to help eliminate racial discrimination in sentencing. Yet the prison population has become overwhelmingly disproportionate since the implementation of this practice. According to Chin, “…The federal prison system, like that of the states, has substantial racial disproportionality- Native Americans are approximately 0.9 percent of the population, but 1.8% of federal prison inmates; people of Latino or Hispanic ethnicity are 16.3% of the population, but 34.9% of prisoners; and African Americans account for 37.2% of prisoners, even though they are only 12.6% of the general population. Good counsel alone has not remedied this problem” (Chin, 2013, 2252). Chin does an excellent job pointing out the issue of racial discrimination that is still rampant in our justice system.
Michael Williams POLS 514 Professor Long 17 November 2015
"Obama administration signals support to reduce prison time for nonviolent offenders"
By Mary Clare Jalonick, Associated Press
In her article for U.S. News, Jalonick discusses the Obama administration’s decision to express support for bipartisan Senate legislation that would reduce prison sentences for some nonviolent offenders. Jalonick points out that sentencing reform is a rare issue that attracts agreement from both sides of the political isle (Jalonick, 2015).
Jalonick reports that the bill is aimed to make sentencing fairer, citing that the federal prison population has exploded since 1980. According to Jalonick, this explosion is due largely to mandatory minimum sentencing guidelines.
Jalonick quotes Deputy Attorney General Sally Quillian Yates, who states: “Because our laws cast too broad a net, we have a hard time distinguishing between the cartel leader who needs to be in prison for a long time, and the mope who doesn’t” (pg. 1).
The bill, according to Jalonick, would give judges more discretion in recommending sentences which are less than federal mandatory minimums in some cases, and would eliminate mandatory life sentences for three-time, nonviolent drug-offenders.
Jalonick also reveals that, although support for sentencing reform comes from both sides of the isle, both sides have also had to compromise, and that the bill even has the support of former Attorney General Michael Mukasey (pg. 1).
Some key features of the legislation, according to Jalonick, are that it would require eligible inmates to undergo regular assessments to determine the likelihood to recidivate, and those who are deemed low-risk could spend the last of potentially reduced sentences in supervised, community-based programs (pg. 1).
Jalonick goes on to note that in 1980, the federal prison population was less than 25,000, and today is more than 200,000, prompting agreement from both conservative and civil liberties groups that the current system is broken. Jalonick also notes that, although most members of the Judiciary panel appear to support the bill, Republican Senator from Alabama, Jeff Sessions said mandatory minimums have worked and that scaling them back could reverse progress in reducing crime (pg. 2).
Jalonick’s article is a snapshot of the current political climate surrounding the issue of mandatory minimum sentencing. The article is relevant in that it provides a context by which the history of mandatory minimum sentencing guidelines can be understood. Additionally, the article reveals the slow progress with which hard-line proponents of these sentencing policies have responded to the concentrated efforts of legislators, law enforcement, academics, opposition and other stakeholders in the failed war on drugs.
Harris, A., Evans, H., & Beckett, K. (2010). Drawing Blood from Stones: Monetary Sanctions, Punishment, and Inequality in the Contemporary United States. American Journal of Sociology 115, 1753-1799.
In “Drawing Blood from Stones: Monetary Sanctions, Punishment, and Inequality in the Contemporary United States,” by Harris, Evans, and Beckett, the issue of legal financial obligations (LFO’s) and their effects on impoverished communities is discussed in detail. The authors begin the article by stating that the US incarceration rate is 6-12 times higher than those in comparable western European countries (Harris, Evans & Beckett, 2010, 1753). The authors also point out that “Between 1980 and 2007, the total number of people under criminal justice supervision- which includes the incarceration and those on probation and parole- jumped from roughly 2 million to over 7 million” (Harris, Evans & Beckett, 2010, 1754). These statistics are important to note, because the amount of LFO’s imposed on defendants who commit crimes, and those who are simply accused of crimes are increasing nationwide.
The method the authors used in their research was to analyze data from the Survey of Inmates in the State and Federal Correctional Facilities and from the Bureau of Justice Statistics data on sentencing. They also drew interviews with 50 Washington State residents living with felony convictions to determine how legal debt affects those who have it (Harris, Evans & Beckett, 210, 1766).
The majority of criminal punishment is concentrated in impoverished urban areas, and nearly 60% of young black men who have not graduated from high school have at some point been behind prison bars (Harris, Evans & Beckett, 2010, 1754). LFO’s are concentrated on poor areas with high populations of minority citizens. The authors state on page 1755,
“…The U.S. penal system is implicated in the accumulation of disadvantage and the reproduction of inequality for a number of reasons: the growing number of (mainly poor) people whose lives it touches, the impact of criminal conviction on employment and earnings…mass incarcerations’ destabilizing effects on families in urban communities, and the widespread imposition of ‘collateral’ or ‘invisible’ sanctions that transform punishment from a temporally limited experience to a long-term status” (Harris, Evans & Beckett, 2010, 1755).
LFO’s not only include general court fees, but fines and restitution orders. Not only is the national average according to the author’s research exceed $7,000 per offender, but all fines are subject to interest, surcharges, and collection fees (Harris, Evans & Beckett, 2010, 1759).
Furthermore, we have even gone so far as to impose fees on those utilizing indigent defense. Meaning, those who need a public defender because they cannot afford a private attorney, must pay a user fee regardless of the Gideon v. Wainwright decision (Harris, Evans & Beckett, 2010, 1758). That was decided in Oregon- a liberal state. Additionally, in Washington, Superior Court judges can now impose up to 17 fees on felony defendants when they are sentenced. In New York, they can impose 19 different fees (Harris, Evans & Beckett, 2010, 1758).
This is all important to the issue of impoverished communities because LFO’s are affecting the innocent sometimes more than those incarcerated or sentenced. This is because most defendants have children, for whom they have been mandated to pay child support for. When they cannot pay because of legal fees, their children and overall family health and structure suffer and deteriorate (Harris, Evans & Beckett, 2010, 1760). This only perpetuates the cycle of poverty and family disenfranchisement that is common in poor urban areas. LFO’s are in essence, helping to keep poor areas poor.
Michael Williams 5 September 2015
"Breaking the cycle: a family-focused approach to criminal sentencing in Illinois"
Lauren Feig (2015) begins her analysis with a statistical overview of the ramifications of mandatory minimum sentencing on the families of incarcerated persons. Feig appropriately terms these ramifications “collateral damage” (pg. 13). According to Feig, more than half of the United States inmate population have children, a figure she reports has increased by 79% between 1991 and 2007. Feig reveals that most of the approximately 90,000 of these are children of nonviolent offenders serving an average of 80 months in facilities over 100 miles away from their families. (pg. 13)
Feig points out that since these children are missing the economic and emotional centers of their lives, they are more likely to experience physical, mental and behavioral problems and, according to recent research, much more likely to offend themselves. Moreover, Besemer et al explain that “parental criminal involvement as “perhaps the strongest predictor of later offending among youth” (as cited in Feig, 2015, pg. 14).
Feig goes on to report that parental incarceration varies as a complex interplay between individual and contextual factors at the relational, community, and societal levels, but contends that identifying “malleable factors associated with child outcomes and implementing interventions to impede risk trajectories” can address consequences of parental incarceration (pg. 14). For example, Feig cites efforts by New Mexico and California to minimize trauma, such as child-sensitive arrest protocols and counseling at the scene of arrest. However, Feig maintains that criminal justice policies which are accountable to children at every stage of the incarceration process are necessary to minimize damage (pg. 14).
With respect to mandatory minimum sentences, Feig highlights the fact that these sentencing policies explicitly forbid judges to consider the interests of children and families in sentencing decisions. Feig goes on to report that, in the face of the collateral costs of severed family-ties, the Department of Justice’s (DOJ) National Institute of Corrections (NIC) has established an interagency group which guides local and state governments mitigating the impacts of these sentencing laws (pg. 16).
The Family-Focused approach to sentencing, according to Feig, facilitates matches the severity of sentencing to the severity of crime and extends beyond the criminal justice systems to other social services and educational systems (pg. 16). Feig points out that, to date, new interventions have reduced recidivism and increased family preservation outcomes. Feig explains that these interventions are strengths-based and data driven, and that emphasis on family factors such as needs and risks are considered in sentencing decisions (pg. 17). Programs such as electronic home monitoring and intensive supervision have proven effective. Feig explains that despite documented successes, resistance to family approaches to sentencing remain. Opponents argue that offenders should not receive special treatment just because they are parents.
Feig closes with recommendations for sentencing reform in Illinois, citing that, despite great strides made by elected officials, expansions are needed. Feig recommends that pre-sentencing investigations include family impact statements, sentencing options should be expanded, and terms of confinement and location of imprisonment should be based on what is best for the children (19).
Feig’s analysis of the success of a family based approach to sentencing is significant in that it highlights the counter-narrative propelled by opponents of sensible criminal justice reform. The cost/benefit ratio of the current, archaic policies are ignored in favor of the “tough on crime” narrative, to the detriment of individuals, families, and society at large..
Michael Williams POLS 514 Professor Long 7 November 2015
Chapter 2 of a 2011 U.S. Sentencing Commission report to Congress
“History of Mandatory Minimum Penalties and Statutory Relief Mechanisms”
The authors of this U.S. Sentencing Commission report begin by disclosing that it provides a detailed account of the development and evolution of mandatory minimum penalties. According to the authors, Congress has used mandatory minimum penalties since it enacted the first federal penal laws in the late 18th century, though they were reserved for serious offenses, such as murder and treason. Congress, according to the authors, created the first comprehensive series of federal offenses with the passage of the 1790 Crimes Act (7).
The report notes that the colonies, following a trend in England, had increased the number of capital crimes throughout the 17th and 18th century, but reduced the number following the American Revolution, a move which was spurred by the Enlightenment ideals of utilitarianism and proportionality in punishment (8). Among the punishments debated by Congress was dissection, and among the crimes warranting death was producing counterfeit public sureties. The report reveals that Congress enacted the first mandatory minimum terms in response to strained relations with France. Following the XYZ Affair, Congress imposed terms no less than 6 months in prison for what would amount to espionage today (9). The report also states that a mandatory minimum sentence of 5 years in prison for any citizen bringing slaves into the United States was enacted by the 1807 Act (10).
Replacing the 1790 Crimes Act was the 1825 Crimes Act, which imposed stiffer penalties for counterfeiting sureties and death penalties for crimes such as burning a dwelling on a military post and crimes on the high seas (11). The authors go on to note in section (C.) that Congress enacted mandatory minimum sentences during the Civil War which targeted individuals allied with the Confederacy, mandating death in 1862 for certain Confederate spies (13), as well as mandatory minimum penalties of six months for anyone encouraging desertion or sheltering a deserter (14).
After the Civil War, Congress repealed the death penalty for counterfeiting, but Revised Statutes employed mandatory minimum penalties for crimes such as piracy, forgery, and slave trafficking (17). According to the report, the Revision Commission recommended the abolition of mandatory minimum penalties for many crimes, explaining that statutory sentences embraced the more enlightened practice of fitting the punishment to the criminal (18). Although the Revision Commission report resulted in the repeal of many mandatory minimum penalties, the Volstead Act of 1919 in accordance with prohibition (21).
The report goes on to note that after 1951, Congress used mandatory minimums is three new, significant ways: they enacted more penalties, expanded their use to offenses not traditionally covered by such penalties, and the penalties (used today) are generally lengthier than those in earlier eras. However, by the 1960s, mandatory minimums became increasingly unpopular and nearly all mandatory minimums for controlled substances were repealed in exchange for more “realistic” and “flexible” penalties (22).
The Anti-Drug Abuse Act of 1986 established the basic framework of mandatory minimum penalties currently applicable to federal drug trafficking offenses (23). The act produced the 100:1 cocaine/crack ratio, and the Omnibus Anti-Abuse Act increased the minimum penalty for crack and included conspiracies to commit substantive offenses (25).
The report concludes with descriptions of mandatory minimum penalties for sex crimes and a brief overview of the Fair Sentencing Act of 2010. This report is useful for the explication of a comprehensive history of mandatory minimum sentencing, the path by which the U.S. government has both progressed and regressed with respect to sentencing policy, and the mediating factors and antecedents of sentencing policy along the U.S. judicial timeline.
Crystal S. Yang’s article entitled, "Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing," Yang analyzes the relationship between federal sentencing guidelines, judges, and minority defendants. In Yang’s research study, she was able to conclude that if a defendant was black, they were likely to receive sentences that were two months longer on average than their white counterparts. Yang conducted this research by linking judges to defendants before and after the United States v. Booker Supreme Court case, which struck down mandatory-guidelines sentencing in 2005 (Yang, 2015, 76).
The "Booker" case created dramatic changes in the way defendants are sentences on the basis of race. According to Yang, “…Booker significantly increased racial disparities after controlling for extensive offender and crime characteristics. The black-white sentencing gap increased by two months in the post "Booker" period, a 4 percent increase in the average sentence length and a doubling of the baseline racial gap” (Yang, 2015, 77).
The data collected for this paper was from the USSC, the Transitional Records Access Clearinghouse (TRAC), and the Federal Judicial Center. One major crime Yang focuses on is that of drug trafficking and drug offenses in general. “Racial disparities increased significantly among defendants convicted of drug-trafficking offenses, controlling for primary type of drug… Given that almost 70 percent of drug offenders receive a mandatory minimum sentence, the increase in racial disparities in drug offenses after “Booker” may reflect differential application of mandatory minimum sentences” (Yang, 2015, 95).
Overall, the article is an analysis of sentencing after the “Booker” case was struck down, and how its absence has had detrimental effects on African Americans being charged with crimes. Mandatory minimums and other federal sentencing guidelines were intended to decrease the amount of judicial discretion, and according to Yang, their absence has led to harsher sentences for minorities being charged specifically with drug offenses.
Yang, Crystal S., “Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing. (2015). The Journal of Legal Studies. The University of Chicago Press, Vol. 44. No. 1.
Michael Williams Professor Long 1 November 2015 "Mandatory Minimum Sentencing: A Failed Policy"
By Robert Batey
Batey’s article provides a general, retrospective overview of the failures of mandatory minimum sentencing policies, as well as a cursory glance at the efforts of interest group opposition to these policies.
He begins by stating that these policies began a generation ago as a result of federal and state legislatures thinking they could “get tough on crime” (25). He also states that the major component of the overall failure of these policies was the removal of judicial discretion.
Batey points out that the Rockefeller drug laws of 1973 had an idea of the drug pusher as a professional drug dealer who lived off the misery of the addicted. Batey cites the case of Angela Thompson, a seventeen-year-old recruited by her uncle to sell cocaine as just one example of the reality of who suffers from mandatory minimum sentencing policies—how they sweep minor criminals along with the “kingpins” they are designed to target. Batey points out that “kingpins” take advantage of prosecutorial discretion by informing on underlings, resulting in the wrong people going to jail for trafficking crimes.
Among the unintended consequences, Batey notes, is the racial disparities resulting from the continued policies. Batey notes the inflammatory nature of the hundred-to-one disparity for crack-cocaine vs. powder cocaine sentencing guidelines, and the inaccuracies of perceptions concerning drug use by race. Batey explains that the resulting glut of prisoners has changed everything in the United States, including politics and race relations (26).
Batey goes on to discuss opposition to mandatory minimum sentencing policy and reform groups such as Families Against Mandatory Minimums (FAMM). FAMM began in 1991 and have since led a movement that resulted in the repeal of one of the harshest mandatory minimum sentencing provisions in the country. FAMM, according to Batey, has been successful at the federal level as well, noting they were instrumental in the passage of the “safety valve” legislation, which frees some nonviolent first-time federal drug offenders from otherwise applicable mandatory minimum sentences (27). Batey concludes by revealing that he has been involved with FAMM as a local coordinator since 1995 and closes with a call to action for those interested in becoming involved in the organization.
Batey’s article is relevant to policy analysis in that it exemplifies interest group response to failed policy, as well as the path-dependence of criminal justice policymakers. Despite the empirical evidence of the failure of mandatory minimum sentencing guidelines, FAMM has been active since 1995 with modest success.
- Oct 2015
Shimica Gaskin’s article, “Women of Circumstance’ – The Effects of Mandatory Minimum Sentencing on Women Minimally Involves in Drug Crimes,” the rising issue of women minimally convicted on drug charges. An interesting type of drug conviction has begun to emerge: women whose partners’ traffic drugs being convicted alongside of them. More importantly, the disproportionate sentencing of these women. Federal conspiracy laws are cited as a leading cause of these unfair sentences being granted to bystanders. Simply the presence of a woman in the same house as here partner who is directly involved in drug crime can result in a conspiracy charge (Gaskin, 2004).
According to Gaskin, “A figurative triangle links women of circumstance, the male drug dealers they are romantically involved with, and the drugs themselves. The complicated relationships that create this triangle also lead to the conviction of many desperate, unsuspecting or coerced women who often have no prior criminal history” (Gaskin, 2004).
Gaskin goes on to point out that often times, the women involved with drug dealers play minimal roles in any drug trafficking activity, yet receive conspiracy charges nonetheless. It is also of critical importance to note the coercion that is often involved in these relationships. It is likely- according to Gaskin- that some women may be coerced into different activities by the drug-involved male partner. This is not taken into account when it is time for sentencing. Mandatory minimums also expel the opportunity for sentence reductions (Gaskin, 2004).
Furthermore, the requirements for federal conspiracy sentences are unnecessarily harsh. According to Gaskin, “…Merely permitting drugs in the home, answering the door, or answering the telephone could establish that the wife or girlfriend was a knowing member of the conspiracy” (Gaskin, 2004). This doesn’t make sense considering the coercive nature of many relationships, as well as the fact that answering your front door makes you eligible for a conspiracy charge.
In terms of mandatory minimums, prosecutorial discretion is not permitted in mandatory minimum sentencing, yet the frequency and intensity of conspiracy sentencing has increased among prosecutors. The purpose of mandatory minimums therefore has not necessarily been achieved due to conspiracy charges. Furthermore, mandatory minimums have made the punishments for women associated with drug traffickers harsher. According to Gaskin,
“Mandatory minimums require the courts to determine the sentences by the quantity of drugs and the size of the conspiracy, rather than the offender's role in the conspiracy. If a young woman with no prior criminal history is arrested for delivering to an undercover officer forty-eight bags of cocaine base totaling 6.854 grams, the Sentencing Guidelines imprisonment range would be anywhere from fifty-one to sixty-three months, which can be reduced by the judge. n70 However, mandatory minimum sentencing would subject that young woman to a minimum term of five years because the weight of the drugs serves as the basis for computing the sentence” (Gaskin, 2004).
Overall, this article was extremely insightful, because it shed light on an interesting aspect of mandatory minimums that is rarely discussed. It also talked in detail about conspiracy laws and their relation to women charged with drug related crimes.
Gaskin, Shimica (2004). “Women of Circumstance: The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crime.” American Criminal Law Review. Vol.41(4), p.1533(21).
Johnson, Carrie, “No. 2 at justice warns growing prison budget detracts from public safety” NPR. www.npr.org
In her 2015 article, Carrie Johnson profiles Deputy Attorney General Sally Yates and reports on the growing public safety threat growing prison budgets pose to the United States. Johnson begins by citing racial disparities and huge costs as the main reasons government officials are calling for a new approach to sentencing.
Johnson quotes Yates, who says she has been “at [prosecution] for 27 years . . . I believe that it’s really imperative that [officials] do everything we can to keep our communities safe, but to do that in a way that is just and fair.”
Johnson reports that Yates, who was recently confirmed Deputy Attorney General by the Senate, is using her platform to warn about the public safety threat imposed by the expanding prison budget, for which $7 billion a year has gone to incarcerate 200,000 inmates. Yates reveals that a 40 percent reduction in grant money for cops on the street has been an unintended consequence of rising incarceration costs, and, according to Justice Department estimates, the situation will only get worse over the next decade.
According to Johnson, Yates wants members of Congress to “dial back” long mandatory prison sentences for nonviolent drug offenders. She reports that pushes at reform have become bipartisan, and that a left-right coalition from the ACLU to Koch Industries is “advocating for a smarter approach at the federal level.”
Johnson reports that Formal Attorney General Eric Holder agrees with the Obama administration’s claims that the violent crime and number of people going to prison has reduced.
This article is significant in that it reports very recent efforts and gains made toward reducing the harmful consequences of mandatory minimums. Additionally, this article reveals the significant damage to the economy mandatory minimum sentences have caused, as well as the potential for devastating consequences if no reforms are made to the current system. This new prevalence of the term “low level drug offender” in the mainstream media is also significant in that it evidences a shift in the “tough on crime” narrative, and suggests a new social construction in the criminal justice and economic arena.
In John Crank’s book "Imagining Justice," there is a section entitled "Ethnicity, Crime, and the Criminal Justice System," which explores the issue of injustices throughout the criminal justice system that emerge on the basis of race. Crank starts off the section by immediately stating the contemporary issues surrounding this topic. On criminality and immigration, he states “When criminality among immigrants are examined, no clear pattern of behavior emerges. Criminal behavior, when identified, appears to be contextualized by the process of immigration and resettlement” (Crank, 2003, 261). Crank goes on to suggest that the reasons for someone’s immigration can play a role in determining whether or not people will commit crimes.
Crank goes on to explain that generalizations are made about immigrant populations and how they have adapted to American culture. Crank attributes the emergence and desistence of crime to three factors: the age structure, the loss of traditional authority, and the degree of social cohesion (Crank, 2003, 262). The age structure refers to the fact that there are a high proportion of immigrant youth to each immigrant adult which can mean that high rates of youth may be predisposed to crime during their socialization. The loss of traditional authority refers to a parent’s inability to maintain control within the adaptation process- which is difficult because it is a challenge to traditional norms for them. And third, the degree of social cohesion, refers to the availability of community resources within immigrant communities that allow youth and immigrant adults to ease into their communities while being able to practice traditional norms (Crank, 2003, 262). All of these factors play an important role in adaptability for immigrant populations according to Crank.
Without proper modes of adaptation, Crank argues, criminal activity emerges. One interesting fact found in this section in relation to sentencing, is when Crank states, “Seemingly neutral case processing practices, especially concerning pretrial confinement decisions and sentence reductions for guilty pleas, operate to the systematic disadvantage of members of minority groups” (Crank, 2003, 265). Crank lists these disadvantages as, “pretrial confinement is typically aimed at those least likely to appear for trial. Those least likely to appear are those who lead unsettled lives, lack permanent residents and stable jobs. This falls disproportionately on disadvantaged minority groups” (Crank, 2003, 265). Lastly and most relevantly, “minority members are less likely to receive favorable sentence reductions for guilty pleas. Tonry suggests that this may stem from the distrust minorities have a country’s justice system and a belief that they are treated unfairly… This means that defendants who plead guilty earlier in justice proceedings receive shorter sentences” (Crank, 2003, 265).
Crank goes on to discuss the false assumptions surrounding immigrants in the US. For example, there is the misconception that all Latin Americans are Mexican. This is of course not true, and there is a very diverse groups of Latino/a immigrants in the US. Crank states, “Mexicans make up 61.2 percent of the Latino population in the United States. However, only about 33 percent of Mexicans are foreign born- most are resident United States citizens” (Crank, 2003, 266). Crank goes on to discuss the political ideologies surrounding assimilation and immigration. There is an ongoing attempt to learn how to adjust and assimilate in a new society. I think this- the difficulty of adaptation- is the main point of this section, and this is Crank’s argument for why and how the justice system affects immigrants. This was an interesting section, although I am not sure it adequately discusses how unfairly immigrants are treated by our criminal justice system- particularly in terms of sentencing measures.
Crank, John P. “Imagining Justice” (2003). Pages 261-276. Anderson Publishing Co. Cincinatti, OH. Print.
“The Rise and Fall of the Indeterminate Sentencing Ideal” from "But They All Come Back: Facing the Challenges of Prisoner Reentry" by Jeremy Travis. Pages 7-20, 2005.
Chapter 1 of "But They All Come Back" by Jeremy Travis discusses indeterminate and determinate sentencing in great detail. It discusses its origin, its purpose, and its effect on the criminal justice system. Discretion being the main element of indeterminate sentencing- its role and legitimacy is often questioned. When judges determine a sentence for a person who has been convicted of a crime, they are supposed to take several things into account under this lens. “…the crime’s severity, the extent of any prior criminal convictions, the offender’s family circumstances, and his or her prospects for rehabilitation” (Travis, 2005, 15). Parole boards and parole officers are also supposed to take such factors into consideration when determining what the offender requires and needs after incarceration or custody.
The author goes on to discuss the purpose of the criminal sanction. Travis argues that the main point of a sanction is in fact rehabilitation rather than the commonly presumed punishment. However, Travis goes on to say that under indeterminate sentencing, rehabilitation is difficult to achieve because indeterminate sentencing requires that judges decide how an offender will be rehabilitated as well as parole boards and officers.
Furthermore, Travis discusses the criticism of indeterminate sentencing. These include racial discrimination, too much reliance on judicial discretion and much more. Specifically, “The practice of assigning significant sentencing responsibilities to the judicial branch was criticized as an inappropriate exercise of unchecked, unguided, and unreviewable power” (Travis, 2005, 17). Alternatively, “…the goal of rehabilitation was roundly characterized as tantamount to coddling criminals” (Travis, 2005, 17). The author goes on to cite the “Nothing Works!” report as a reason for the collapse of the rehabilitative ideal when relating to prisons.
Travis ends the chapter by stating there has been no new framework proposed, and “A number of states have enacted laws imposing mandatory minimum sentences, thereby depriving judges of the community supervision option and generally increasing the size of the prison population” (Travis, 2005, 20). This chapter have an interesting background on indeterminate sentencing, as well as granted insight into the rise of mandatory minimum sentences.
“But They All Come Back: Facing the Challenges of Prisoner Reentry” by Jeremy Travis. 2005. The Urban Institute Press. Washington D.C. 1st Edition. Pages 7-20. Print.
"Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums)" by Paul G. Cassell
In the article "Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums)," author Paul Cassell attempts to shed light on whether or not an argument of undue severity can be made against mandatory minimums. According to Cassell, this is an argument that has not been made, although I would beg to differ. However, Cassell claims the guidelines associated with federal sentencing guidelines are not too severe because they fit social norms as prescribes by the public, as well as provide deterrence benefits and have “strong potential for being cost-effective crime control measures” (Cassell, 2004, 1018).
Cassell begins his argument by addressing a speech given by Supreme Court Justice Anthony Kennedy, which prompted a nationwide discussion about the severity and the need for a reduction in mandatory minimums across the board. The author does note before going into methods and literature, this his approach will not fully delve into the issue of all discretionary sentencing measures. He posits that it is “fair to say that some calls for more “discretion” are, in truth, calls for lower sentences” (Cassell, 2004, 1019).
Crime control and just deserts have been known to be the purpose of punishment and adjudication in the criminal justice field. Cassell aims to assess these elements of sentencing as a way to measure punishment severity. The author goes on to present a table that shows the federal sentencing guidelines for crimes seen more frequently in court versus what the public feels the penalty should be. Most of them were fairly consistent. However, the public generally has a “tough on crime” approach to all things criminal justice, which implies that the federal government maintains the same way of thinking since their answers were almost identical.
An interesting part of this article however, is when Cassell states how many cases end up with a lesser sentence due to pleading down. “According to a recent General Accounting Office Study of downward departures, 36% of all federal sentenced involved a downward departure, including 44% of all drug sentences. While most of these departures are apparently for “substantial assistance” to government prosecutors or for the “fast tracking” of immigration offenses… the great bulk of federal cases (more than 95%) are resolved by a plea arrangement…” (Cassell, 2004, 1029). Here, the Cassell is positing that discretionary sentencing is making it so those on trial do not have to accept full responsibility- which is determined by the federal government sentencing guidelines.
This article was good in that it presented a point of view that is not seen very often in criminal justice: that mandatory minimums and discretionary sentencing are soft on sentencing. Cassell presented a lot of interesting data, and I think the argument is interesting.
Stanford Law Review Vol. 56, No. 5, 2004 Stanford Law Review Symposium: Punishment and Its Purposes (Apr., 2004), pp. 1017-1048
Michael Williams POLS 514 Professor Long 21 October 2015
"Drugs and Drug Policy" by Clayton Mosher and Scott M. Akins
Chapter 11 (Mandatory Minimum Sentences Section)
Drugs and Drug Policy, by Clayton Mosher and Scott M. Akins examines the Drug War in its entirety, from the overtly extreme beginnings, to the more subtle, systemic consequences of the present. Throughout the book, Mosher and Akins dissect everything from the Crack “epidemic” to performance enhancing drugs. With each chapter, Mosher and Akins reveal the mismeasurement, misinformation, and misguided policies that have contributed to—and perpetuate—America’s War on Drugs.
In Chapter 11, Mosher and Akins put mandatory minimum sentencing under the microscope. They begin with an anecdote that, according to many, is an all too common scenario in the criminal justice system. The anecdote compares the consequences faced by a young African American convicted of the sale of two-tenths of a gram of crack cocaine to those of a Caucasian robber who takes property by force. The African American’s mandatory sentencing range is 45-51 months, compared to the Caucasian’s 12-14 months (453).
Mosher and Akins go on to explain that mandatory minimum sentences have been a part of criminal laws since 1790, but have had the greatest impact on society in only the last three decades. They reveal that in the 1970s, the mandatory minimum laws were repealed, but, prompted by the crack cocaine “epidemic,” mandatory minimums were enacted in many states in 1980, and at the federal level in 1986 with the passing of the Anti-Drug Abuse Act. (454)
Congress, according to Mosher and Akins, largely ignored the fact that crack and powder cocaine are essentially the same substance and failed to offer any rationale for the selection of the 100:1 sentencing ratio in amounts of powder vs. crack. (454)
The authors explain that African Americans were far more likely to be arrested and prosecuted under federal crack cocaine statutes than whites and cite a 1992 study by the U.S. Sentencing Commission which found that in 16 states, not a single white person had been prosecuted under federal crack laws. They report that the Sentencing Commission also found that it was only after nine years since the crack/powder distinction was enacted that a white person had been formally charged with crack possession. Mosher and Akins go on to reveal that the Sentencing Commission officially recommended the 100:1 sentencing ratio be reduced to 1:1 in 1997, but the recommendation was rejected Congress and President Clinton. (455)
An increasing number of judges subsequently became upset at having to invoke mandatory minimum sentencing laws, and, as Mosher and Akins note, one Superior Court judge in California stated:
“[O]ur system has arrested, imprisoned, and eliminated from the [drug] market the stupid, unorganized, and less violent drug traffickers and smugglers, thus leaving behind the phenomenally lucrative market open to offenders who are smarter, better organized, and more violent.” (458)
This, Mosher and Akin note, is among the many other blowbacks and unintended consequences of mandatory minimum sentencing.
"The inadequacy of fiscal constraints as a substitute for proportionality review."
Elizabeth Napier Dewar
By Michael Williams
In her article for the Yale Law Journal, Dewar presents a legislation comment which critiques Supreme Court Justice Scalia’s claim that the cost of incarceration, rather than proportional reviews, act as viable check on the length of prison terms (Dewar pg. 1177). Dewar goes on to analyze what she terms as a “typical response to rising prison costs” (pg.1178): the Act Concerning Prison Overcrowding, which was passed in Connecticut in 2004. According to Dewar, the Act trims small amounts of time for a large number of people without altering the statutory penalty for any particular crime (pg. 1178).
Dewar notes that the Framers of the constitution, according to Scalia, did not include the guarantee against disproportionate sentences in Cruel and Unusual Punishments Clause of the Eighth Amendment, but points out that some State Constitutions do (pg. 1178). Scalia’s interpretation of the Eighth Amendment posits that since it makes sense to scrutinize the government more closely when the State stands to benefit, than it makes sense to give no scrutiny to the length of prison sentences, since the State loses money (pg. 1179). This point is significant in that it highlights the way in which Federalism affects the perpetuation of states’ mandatory minimum sentencing policies.
Dewar explains that while states have passed legislation (largely due to budget constraints), most, like Connecticut, have only cut at the level of probation and administration, with only a few states repealing mandatory minimum sentencing laws (pg. 1180). Dewar highlights that Connecticut’s Act Concerning Prison Overcrowding was styled as a budgetary measure, and excludes any “consideration of the sentences for individual crimes” (ph. 1181). Dewar points out that, although the Act also calls for a reduction in incarceration, the provision only focuses on those incarcerated for probation and parole violation, rather than any change to sentencing guidelines. This, according to Dewar, is counter-intuitive to any long term cost saving measure (pg. 1183).
An all-out reduction of criminal sentences, according to Dewar, carries a high political cost, which deters legislators from reducing prison sentences in general. Accordingly, she points out that the Connecticut’s Act was justified by severe budget constraints (pg. 1183).
Dewar’s analysis of Connecticut’s Act Concerning Prison Overcrowding is important in that it exemplifies the way in which the social construction of the "dangerous criminal" is so deeply rooted that even reasonable, efficient cost-cutting policies are not enough to justify repealing mandatory minimum sentencing guidelines, and that State legislatures' need to appear “tough on crime” overpowers the financial interests of their state.
The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review Elizabeth Napier Dewar The Yale Law Journal Vol. 114, No. 5 (Mar., 2005) , pp. 1177-1184 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/4135704
Michael Williams Dr. Long
“Tough on crime or tough luck for the incarcerated? Exploring the adverse psychological impacts of mandatory minimum sentences and pushing for action”
Robert C. NeSmith
NeSmith (2015) begins his article with a brief overview of the history, political intent, implications and subsequent complications of mandatory minimum sentencing, but his note largely focuses on the psychological consequences these sentencing policies have on prisoners, their families, and their communities. NeSmith also highlights recent attempts at sentencing reform policy and emphasizes recommendations for further, sensible criminal justice reform with respect to mandatory minimum sentencing.
NeSmith explains that the US has spent more than $1 trillion on the War on Drugs. He reveals that mandatory minimums, a large consequence of the War on Drugs, found their roots in the Nixon administration when, contrary to his initial embrace of ‘greater investment in rehab and public health,’ launched a campaign to eradicate illicit drug use. This campaign, NeSmith explains, was in response to public fears of wide spread drug use resulting from events like Woodstock and the war in Vietnam (pg. 255).
These policies were increased and expanded when Reagan took office and launched his own campaign to get “tough on crime,” resulting in the creation of the US Sentencing Commission. These policies removed judicial discretion and implemented standardized sentencing guidelines, which became applicable to low-level drug offenders and violent offenders across the board.
The psychological, social, economic and familial consequences of these policies, as NeSmith reports, have been enormous. As a result of mandatory minimum sentencing, prisoners develop patterns of thinking and behavior that make successful reentry extremely challenging. He explains that the constant environment of fear and danger, along with a significant decrease in self-autonomy, affects the prisoner’s ability to direct themselves upon release, which can result in high recidivism and a reliance on institutional direction. Moreover, prisoners are denied political involvement, employment opportunities, pell grants, and civil and military opportunities, which also has adverse affects on both their families and their communities. Prisoners are subsequently unable to provide for their children (who are often traumatized due to their parents' incarceration), both emotionally and economically.
NeSmith goes on to report recent strides toward viable criminal justice reform, citing US Attorney General Eric Holder’s championship of “smart on crime” approach. NeSmith discusses recent pending legislation such as the Smarter Sentencing Act, which aims at modernizing drug sentencing, and the Recidivism Reduction and Public Safety Act, which expands prison jobs, academic classes, and drug treatment programs.
Ultimately, NeSmith focuses on the need to implement rehabilitative, as opposed to retributive, criminal justice policy. NeSmith’s commentary underscores the severe, negative impact that mandatory minimum sentencing policy outputs have had on municipal, state, and federal policy inputs: the more incarcerated individuals, the more unnecessary adverse public health, economic, and social consequences. NeSmith also highlights, however, a positive shift in the national mood toward “tough on crime” policies, but astutely contends that the US has a long way to go to enact real, effective change.
- Sep 2015
In the article "Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences" by Jeffrey Ulmer, Megan Kurlychek, and John Kramer, the prosecutorial discretion in the courtroom and its effects on sentencing outcomes is discussed. This article emerged out of the "Journal of Research in Crime and Delinquency" in 2007. The article begins by discussing the popular and abrupt trend of distrust in judges which caused the emergence of mandatory minimums. This then led to the ultimate trust in prosecutors (Ulmer, Kurlychek and Kramer, 2007, 427). Overall, this article is a summary and analysis of what it means for a prosecutor to not only act as a judge, but to apply mandatory minimum sentencing eligibility to different kinds of offenders.
The findings of the article were not entirely surprising. Based on the author’s multivariate analysis, prosecutors granted more mandatory minimums far less often to those who “negotiated guilty pleas in the full sample and drug subsample and substantially less often to those with non-negotiated guilty pleas in the three-strikes subsample” (Ulmer, Kurlychek and Kramer, 2007, 448). Furthermore, the findings suggest that prosecutors may use the “threat of applying longer mandatory sentence as a key piece of leverage to obtain guilty pleas… and thus more certain convictions (Ulmer, Kurlychek and Kramer, 2007, 448). It is also interesting to note that those who enter into a non-negotiated plea are far less likely to receive mandatory imposition (Ulmer, Kurlychek and Kramer, 2007, 448). According to the authors, this is due to the fact that it may look remorseful and can look like the start of rehabilitation if the offender automatically accepts a “guilty” plea because it shows they are taking responsibility.
In terms of the offender’s race playing a role in the type of sentencing they received, there was little data found that suggested being Black increased the chances of receiving a mandatory minimum. However, Hispanic people were more likely to receive mandatory minimums. Males are also more likely than women to receive mandatory minimums because they are seen as less blameworthy and dangerous (Ulmer, Kurlychek and Kramer, 2007, 451).
The article ends with a general discussion about how mandatory minimums are not necessarily mandatory at all considering how prosecutors pick and choose who receives them. When other factors than the actual offense are considered, like race and gender, it becomes increasingly clear that prosecutors are given substantial unilateral authority in determining sentences for people who have in some cases committed the same crimes. Overall, I feel the theme of this article was that the need for expediency and quick justice is getting in the way of judicial discretion and fairer outcomes.
Ulmer, J. T., M. C. Kurlychek, and J. H. Kramer. 2007. "Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences." Journal of Research in Crime and Delinquency 44.4: 427-58. Web.
Article: Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining? by Besiki Luka Kutateladze, Nancy R. Andiloro & Brian D. Johnson
"Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?" Is an article that was published in Justice Quarterly in May 2015, which examines a possible cause of minority overrepresentation in prisons. Specifically, how the discretionary nature of plea bargains leads to mass incarceration of minority populations- particularly African Americans. The authors go on to define plea bargaining as a defendant agreeing to plea guilty for the benefit of the prosecutor in return for a lesser sentence (Kutateladze, Andiloro & Johnson, 2014). The article goes on to mention a few troubling facts about plea bargaining that are not commonly known. For example, plea bargaining is not legally binding. According to the authors, this can lead to a degree of inconsistency and bias in sentencing on the part of the prosecutor because they are only expected to follow a set of loosely defined guidelines when proposing a plea bargain. The individual bias of the prosecutor is able to play a significant role in determining the sentence for each defendant because there is no streamlined standard for every crime when it comes to discretionary sentencing.
Implicit Bias is also an important element in plea bargaining, because it is the main factor in discretion of the prosecutor or court official making sentencing decisions. As Banaji and Greenwald (2013) put it, “Implicit bias involves cognitive decision-making processes in which ascriptive offender characteristics affect court actor judgments, often in automatic and unintentional ways “ (Kutateladze, Andiloro & Johnson, 2014). It is natural for all people to have certain biases due to societal cues and subtle messages intended to make people think certain ways. Everyone has bias whether or not they want to admit it. The point of the authors here is exactly that: prosecutors are just as susceptible to these biases as anyone else. That is why plea bargaining and other determinate sentencing methods should not be based on the discretion of court officials.
Even more troubling are caseloads of prosecutors and public defenders. With ever-increasing arrests and criminal caseloads, prosecutors are less likely to be adequately thorough in determining sentences for those they are prosecuting. As stated by the authors, “Given their often heavy caseloads, court actors may rely on mental shortcuts, or schemas… Such schemas often involve defendant traits, such as race and ethnicity, which subsequently shape future interactions and decision-making outcomes” (Kutateladze, Andiloro & Johnson, 2014). Because the primary purpose of plea bargaining is expediency, it is likely that there will be shortcomings on the part of the prosecutors. This however, entirely negates the purpose of the trial in the criminal process. In fact, defendants are now essentially afraid of trials because they feel they will get an unfair or harsher sentence.
The data from this research was gathered through working closely with the New York County District Attorney’s Office to collect and analyze date in the prosecution of drug cases (Kutateladze, Andiloro & Johnson, 2014). The research findings were that minority offenders who were being charged with drug offenses- many for marijuana- received harsher sentences than their white counterparts. It is also important to note that three quarters of prosecutors studied were white. Furthermore, “the odds of custodial pleas increased slightly when prosecutors had heavier caseloads… In addition, defendants living in poorer areas were significantly more likely to receive custodial sentence offers” (Kutateladze, Andiloro & Johnson, 2014). The idea of assembly-line justice has made it difficult to grant fair and stream-lined sentences to defendants- particularly minority defendants. They are receiving more custodial sentence offers and are entering prison at higher rates than white defendants for similar crimes.
Kutateladze, B. L., Andiloro, N. R., & Johnson, B. D. (2014). Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?. Justice Quarterly, (ahead-of-print), 1-29.
The article titled “Mandatory Minimum Drug Sentences—Can They be Any Less Draconian?” by Thomas M. Cooley contains a simplistic and straightforward thesis. The argument put forth by the author is that mandatory minimums for those convicted of possessions, manufacturing, distributing, or conspiring to distribute controlled narcotics; or a combination of these convictions was initially created to dissolve the number of drug lords on the street. However, the consequence of mandatory minimums resulted in discretion being transferred from judges to prosecutors who then abused the sentencing polices, imprisoning small time drug mules and addicts…potentially for life.
The reasoning behind why such enforcement would work was two-fold: it would have a deterring mechanism putting, “potential felons on notice that their criminal activity would lead to harsh penalties” (p. 2); as well as removing discretion from judges who were viewed as being too lenient or “soft” on criminals, and whose rulings showed too much disparity from case to case. Cooley uses Michigan state as somewhat of a case study on the faulty and “draconian” use of mandatory minimums while also giving historical references on how mandatory minimums came to light.
Cooley is clearly a fan of judiciary discretion, arguing that until recently, most drug offenders where given indeterminate sentences by judges, where their release was conditioned by their rehabilitations. This summary does not discuss the merits of such sentencing tactics, but it is evident that it is a policy preferred by Cooley. He then moves on to the recent past, explaining that in the 1970’s and 1980’s, the public became more concerned with seemingly rising crime statistics. In response, legislation was drafted, “to target those classes of offenses which were thought to pose the greatest threat to society” (p. 3).
At this point in the article, Cooley gives a break down of Michigan’s Controlled Substance Statutes. Beginning in 1909, Michigan took incremental steps forward to evoke severe drug sentencing policies. There was some flip-flopping along the way, but legislature landed on a mandatory sentence of twenty years in 1989 for manufacturing or distributing 650 grams of controlled substances (which is admittedly down from the life sentence without parole Michigan enforced the year before).
Cooley then goes on to argue that part of the issue with mandatory sentencing was the transfer of discretion from judges to prosecutors. He argues prosecutors are notorious abusers of such policies, leveraging mandatory sentences against those being tried by piling on possible conviction after conviction. For example, instead of just trying an individual for distribution of a controlled substance, a prosecutor could additionally prosecute the same individual for conspiracy to distribute controlled substances, in effect doubling the defendant’s potential minimum sentence and making a plea bargain look a lot more appealing.
The author offers two solutions to these issues. First, in response to prosecutorial abuse, Cooley calls for an abuse of discretion standard to be put in place, which he claims, “would allow for more judicial control over the sentencing of those convicted…At the same time, this would protect small-time dealers and addicts from over-zealous prosecutors” (p. 7). Cooley’s second argument is that tax payer’s money would be put to much better use if drug treatment was the go to method of rehabilitation. He sites the RAND Drug Policy Research Center in his mathematical summation that treatment is more effectual for both pocket books as well as recidivism rates. The ultimate argument here is that most drug crimes are spurred on by the need to actually use drugs. So if we help put a stop to the latter, the former will dissipate as well. While this article is rather dated (published in 1999), it serves as an excellent foundation not only for the arguments against mandatory minimums for drug related crimes, but also as a base for the solutions to the flawed policies.
*I linked the WSU Vancouver Library search, figured it would be easier that way.