- Nov 2015
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.
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.
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
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.
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.