A federal conviction for white-collar fraud is no guarantee of a heavy prison sentence. When five defendants in the fraud case involving the American International Group were sentenced, they could have faced life in prison; instead, a judge handed down sentences of one to four years for causing more than $500 million in losses. A Ponzi-scheme criminal who caused more than $40 million in losses got 25 years. A man convicted of securities fraud that caused more than $50 million in losses got a three-and-a-half-year sentence. Editorial in the New York Times.

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission.

Five years ago, federal judges were set free to make their own sentencing decisions. The Supreme Court said that they had to consult federal guidelines when sentencing criminals to prison and imposing fines but were not required to abide by them. It was a smart move away from the rigidity demanded by many lawmakers, balancing judicial discretion with a “reasonableness” test to be applied by appellate courts.

The change did not lead to the widespread chaos predicted in 2005. But in a report last month, the Justice Department said something appears to be wrong in the sentencing guidelines for white-collar fraud cases and child exploitation crimes, including pornography, where outcomes vary widely from judge to judge.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.

The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.

As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

jchev Sentencing, United States

With one of the highest incarceration rates in the world, and the death penalty, the US state of Texas seems the last place to embrace a liberal-minded alternative to prison. But when Mitchell Rouse was convicted of two drug offences in Houston, the former x-ray technician who faced a 60-year prison sentence – reduced to 30 years if he pleaded guilty – was instead put on probation and sentenced to read. Published in The Guardian.

“I was doing it because it was a condition of my probation and it would reduce my community hours,” Rouse recalls.

The 42-year-old had turned to drugs as a way of coping with the stress of his job at a hospital where he frequently worked an 80-hour week. But cooking up to a gram of crystal meth a day to feed his habit gradually took its toll on his life at home, which he shared with his wife and three young children. Finally, fearing for his life, Mitchell’s wife turned him into the authorities. “If she hadn’t, I would be dead or destitute by now,” he says.

Five years on, he is free from drugs, holding down a job as a building contractor, and reunited with his family. He describes being sentenced to a reading group as “a miracle” and says the six-week reading course “changed the way I look at life”.

“It made me believe in my own potential. In the group you’re not wrong, you’re not necessarily right either, but your opinion is just as valid as anyone else’s,” he says.

Rouse is one of thousands of offenders across the US who, as an alternative to prison, are placed on a rehabilitation programme called Changing Lives Through Literature (CLTL- http://cltl.umassd.edu/home-flash.cfm). Repeat offenders of serious crimes such as armed robbery, assault or drug dealing are made to attend a reading group where they discuss literary classics such as To Kill a Mockingbird, The Bell Jar and Of Mice and Men.

Rouse’s group was run by part-time lecturer in liberal studies at Rice University in Houston, Larry Jablecki, who uses the texts of Plato, Mill and Socrates to explore themes of fate, love, anger, liberty, tolerance and empathy. “I particularly liked some of the ideas in John Stuart Mill’s On Liberty,” says Mitchell, who now wants to do a PhD in philosophy.

Groups are single sex and the books chosen resonate with some of the issues the offenders may be facing. A male group, for example, may read books with a theme of male identity. A judge, a probation officer and an academic join a session of 30 offenders to talk about issues as equals.

Of the 597 who have completed the course in Brazoria County, Texas, between 1997 and 2008, only 36 (6%) had their probations revoked and were sent to jail.

A year-long study of the first cohort that went through the programme, which was founded in Massachusetts in 1991, found that only 19% had reoffended compared with 42% in a control group. And those from the programme who did reoffend committed less serious crimes.

CLTL is the brainchild of Robert Waxler, a professor of English at University of Massachusetts Dartmouth. As an experiment, he convinced his friend, Judge Kane, to take eight criminals who repeatedly came before him and place them on a reading programme that Waxler had devised instead of sending them to prison. It now runs in eight states including Texas, Arizona and New York.

In the UK, nearly half of prisoners reoffend within a year of being released from jail. Could programmes like CLTL work on this side of the Atlantic where Ken Clarke, in his first major speech as justice secretary, indicated that more offenders could be given community sentences by putting a greater emphasis on what he terms “intelligent sentencing”?

Lady Stern, senior research fellow at the international centre for prison studies at King’s College London, is not convinced. “Research does show that the public are largely pro-rehabilitation, but when you take an idea that involves offenders attending a university campus to be part of a reading group, instead of being sentenced to prison, it asks a lot of even the most thoughtful and socially conscious public,” she says.

The initiative was initially met with an inevitable flurry of criticism in the US. Waxler and his supporters were described as “bleeding-heart liberals”.

“They were shocked at the idea of offenders going on to university campuses to read books for free while the students were paying their way through education,” says Waxler. “Some even thought the offenders would steal from them. It only takes one person to prove them right, but it’s never happened.”

In Texas, the public have been largely won over by the success rates and how cheap the programme is to run. Instead of spending a lifetime in prison at a cost of more than $30,000 (£19,520) a year, Rouse’s “rehabilitation” cost the taxpayer just $500 (£325).

But it is the experiences of offenders, some of whom have never read a book before, that Waxler points to.

“In one group we read The Old Man and the Sea by Ernest Hemingway,” he recalls. “The story focuses on Santiago, an old fisherman in Cuba, and opens with some heartache: Santiago is not able to catch fish. We talk about him and the endurance he seems to represent, the very fact that he gets up every morning despite the battering he takes.

“The following time the group meet, one of the offenders wants to share something. He’d been walking down Main Street and he said he could hear, metaphorically speaking, the voices of his neighbourhood. He’d been thinking about returning to his old life, to drugs, but as he listened to those voices, he also heard the voice of Santiago. If Santiago could continue to get up each day and make the right choice then he could do too.”

Santiago, a character in a novel, had become the offender’s role model. For many offenders, some of whom have spent half their lives in jail, it is the first time they’ve had a worthy model, says Waxler.

Literacy is a problem. Offenders are unlikely to be sentenced to the programme if they cannot read. However, those with poor reading are not excluded. The groups may read short stories, or excerpts from a novel may be read aloud so that low-level readers can participate.

In the UK, a version of the programme called Stories Connect is running in a handful of prisons with some success, and in Exeter it has recently moved out into the community for people with drug and alcohol problems. But it does not yet have the support of the criminal justice system, so cannot be an alternative sentencing option for the courts.

Retired probation officer Louise Ross voluntarily runs the small group in Exeter. Participants are referred from the Exeter and North Devon Addiction Service, and were, until three-year funding from the Paul Hamlyn Foundation ran out in April, made to attend as part of a community service order. Now all attendance is voluntary, but stories of how the programme changes lives are no less impressive.

After years of opiate abuse, Steve Rowe, 50, who joined the first Exeter group three years ago, says: “Stories Connect didn’t just change my life, it saved it.” He explains: “We looked at a section of Oliver Twist, the relationship between Bill Sikes and Nancy. One of us pretended we were Bill while everyone else asked questions. The idea was you responded as much as you could from that character’s point of view. It makes you think about what others think and feel, and really helps you to reflect on yourself.”

Mary Stephenson, a writer, who runs Stories Connect, says more funding is needed. To date, in Exeter, 96 people have been through the programme, but of these only 29 completed the course. This, she says, is largely due to the chaotic lives of the participants, many of whom are battling with drug problems, and the fact that the groups are not an alternative to prison, which removes the main incentive.

There are plans, again subject to funding, for the University of Exeter to run a research project into the effectiveness of the programme in the UK, both inside prisons and out. But until then, there are no quantitative results that prove the programme reduces reoffending.

Next week, Stephenson is attending a roundtable meeting with prisons and probation minister Crispin Blunt, at which she will make the point that the programme could be achieving so much more.

“In terms of tackling reoffending, we need both more funding and the political support to explore it,” says Stephenson. “There’s no doubt among the people I’ve worked with that the success in America could be repeated here.”

Waxler agrees: “I think that one of the great testaments of this programme is that it demonstrates clearly that literature can make a difference to people’s lives,” he says. “I already believed that, but I knew it could also be used to rehabilitate offenders.”

Rouse says it is hard to judge how much the reading group should take credit for turning his life around as he’d already made the decision to change.

“I didn’t want to lose my family,” he says. “But the group did give me the guidance and direction I needed in my life, and without it I’d have spent the rest of my life in jail. It gave me a second chance.”

jchev Alternative Sentencing, Inmate Programs, Texas

Some Senate and House members want to enact new alternative sentences for non-violent convicts, saying they would decrease overcrowded state prisons and lighten the financial burden on the state. “Pennsylvania is still in the stone ages when you talk about prison reform,” Rep. Kenyatta Johnson, D-Philadelphia, said. “The appetite for prison reform is now.” Story from the Post-Gazette.

The reforms, which would require several new pieces of legislation, are backed by a bipartisan group of lawmakers, including Sen. Stewart Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, and Rep. Ronald Waters, D-Philadelphia.

Measures include having non-violent prisoners who are facing short, minimum sentences serve their time at community-based corrections centers instead of a state prison. Alternative incarceration programs would also be sought for lesser offenses, such as drug-related crimes and technical parole violations.

Mr. Greenleaf said nearly half of the state’s prisoners are non-violent offenders. He said the state prison population has skyrocketed from about 8,000 in 1980 to more than 51,000 now. The state’s prison population was temporarily reduced recently when 2,000 prisoners were sent to prisons in Virginia and Michigan, but the number continues to rise.

“We’ve been tough on crime, but we haven’t been smart on crime,” Mr. Greenleaf said.

Pennsylvania spends more on corrections than 44 other states, according to Mr. Waters, who is sponsoring three bills aiming to reform sentencing.

The state’s Department of Corrections budget is now approaching $2 billion a year, more than 55 times what it was nearly 40 years ago, according to Mr. Waters’ figures.

Mr. Greenleaf said if the prison population continues to increase at the current rate, Pennsylvania may have to build a new prison every year, at the cost of more than $200 million per prison. Three new prisons are already scheduled to be built by 2014, and they will be immediately filled if trends continue. They will be in Centre, Montgomery and Fayette counties.

Mr. Greenleaf said that one factor causing costs to rise is a category called “technical parole violators,” people who are re-incarcerated for violations such as breaking curfew or failing to report to a parole officer. In 2008, 3,000 of these technical violators were re-incarcerated.

Department of Corrections spokeswoman Susan McNaughton said the department supports the new measures.

“We’ve been tough on crime for a long time but have been kind of painting these offenders under a broad brush,” Ms. McNaughton said. “Not everybody needs to be separated from society . . . What they need is treatment.”

Dauphin County District Attorney Edward Marsico, president of the state District Attorneys Association, said alternative programs should be used, but the state needs to tread carefully with any changes to the criminal system.

“The overwhelming majority of inmates in the state correctional system are there for a reason,” Mr. Marsico said. “While their current offense may be non-violent, they may have a history of violence or a history of repeat offenses.”

He said the state could see even higher costs if offenders in the alternative programs continue to commit crimes. “Even if they commit non-violent offenses, that’s a huge cost, not only to their victims but also taxpayers down the road.”

Rep. Thomas Caltagirone, D-Berks, chairman of the House Judiciary Committee, said he would like to see the prison reform bills voted on by the time the new state budget is enacted this summer and legislators then recess.

The Senate has already approved three of the prison reform bills. The House Judiciary Committee met today to discuss them and suggested that amendments be made, including a provision allowing pregnant convicts to not be handcuffed while delivering children. Final committee action is expected next week.

jchev Alternative Sentencing, Pennsylvania

New legislation limiting the credit given to prisoners for time served in custody before and during their trials will cost taxpayers $1 billion to implement and billions more to maintain, the parliamentary budget officer said Tuesday. The construction of new correctional facilities alone will cost about $1.8 billion over five years, the PBO said in a report quantifying the implications of the Truth in Sentencing Act. A further $618 million will be needed annually for capital appropriations and operations and maintenance costs. Report, with video, from the CBC News.

“I knew incarceration was expensive,” PBO Kevin Page told reporters Tuesday morning. “When we do the simple math in terms of longer stays, which means higher head counts and we know how expensive … incarceration is, you get to big numbers in a hurry.”

Page and his team used figures from 2007-2008 to derive their rough estimates because the federal government was unwilling to provide specific data, the report said.

“Undertaking the type of costing exercise without rigorous bottom-up data from the department [and] absent any discussion with [Correctional Service Canada] poses significant risks,” authors Ashutosh Rajekar and Ramnarayanan Mathilakath wrote.

As a result, their report, The Funding Requirement and Impact of the Truth in Sentencing Act on the Correctional System in Canada, relied on historical trends, intuition and probability, the authors said. The report “is limited to a high-level estimation” of the costs, Rajekar and Mathilakath said.

That estimation, however, suggests the costs of implementing and maintaining the new sentencing rules will be far greater than the $2 billion over five years the Conservatives cited on April 28.

Public Safety Minister Vic Toews quickly dismissed Page’s report, saying he didn’t “know where [Page] is getting his information from.”

“If you indicate that he wasn’t getting any information from Correctional Service Canada, he must be making this up,” Toews said.

The Act, which went into effect on Feb. 23, limits the credit judges can give prisoners for time served before sentencing. Such limits have three major consequences, the PBO concluded:

• Inmates will spend more time in custody
• Convicts whose credit might have kept them in provincial facilities will have to be transferred to federal prisons
• Those convicted of lighter sentences who might have been directly released into community supervision will instead be sent to correctional facilities

The act is expected to increase the number of inmates from 8,618 in fiscal year 2007-08 to 17,058, including 9,021 in community supervision, the report said.

New prisons needed
But Canada lacks sufficient space for so many inmates, requiring construction of 13 new federal and provincial facilities at a cost of $1.8 billion, or $363 million per year for five years, the report said.

The additional facilities would include:

• Two low-security facilities with 250 cells each
• Six medium-security facilities with 600 cells each
• Four high-security facilities with 400 cells each
• One multi-level security facility with 400 cells

The new facilities would increase the annual cost of caring for inmates — including operation and maintenance expenses as well as capital appropriations — by about $618 million a year, from the current $2.2 billion to roughly $2.8 billion, the report said.

The PBO was unable to project the financial impacts of the Truth in Sentencing Act for the provinces and territories because of a lack of current data.

However, using a simulation, it projected that annual costs of correctional services would more than double by 2015-16, from $4.4 billion to $9.5 billion, and responsibility for funding the majority of this would shift from the federal government to the provinces and territories.

Liberal public safety critic Mark Holland criticized the Conservatives for “a lack of co-operation and disclosure.”

“The costs cannot be dumped on taxpayers and the provinces,” Holland said. “The Conservatives must sit down with the provinces and territories to address their very legitimate concerns about how these initiatives are going to be funded.”

jchev Canada, Sentencing

Budget-driven decisions will keep more inmates behind bars in Lac qui Parle and Swift counties as the heat of summer arrives. Decisions to stop funding their participation in the sentence-to-serve program as of July 1 means a number of inmates in the two counties will no longer be leaving their cells for work sites. News from the West Central Tribune.

The sentence-to-serve program was launched in the 1980s in large part to help ease crowding and tensions in county jails, according to Midge Christianson, director of 6W Community Corrections.

Inmates who participate in the program spend many daytime hours at work sites, and typically return to their cells with most of their energy spent.

Lac qui Parle, Chippewa and Yellow Medicine counties contract with 6W Community Corrections to oversee sentence-to-serve programs for inmates in their custody. Swift County also obtains services from 6W Community Corrections, but contracts directly with the Minnesota Department of Corrections for sentence-to-serve.

All four of the counties faced the same budget issue in recent weeks. The state reduced its share of funding for the program from 50 percent to 25 percent of the costs.

Chippewa and Yellow Medicine counties opted to pick up the difference. They will also absorb an increased cost due to the withdrawal of Lac qui Parle County from the three-county program. Chippewa County will see its cost for sentence-to-serve rise by $9,676 for the remaining six months of the year. Yellow Medicine County will see its costs rise by $10,893.

Christianson said commissioners from Swift and Lac qui Parle counties serving on the 6W Corrections board made known that the decision to leave the program was due entirely to budget concerns. They fear that the writing is on the wall: With the state facing the prospect of an even larger budget deficit next year, they expect state support for the program to be eliminated altogether.

Some counties, Kandiyohi among them, already pay 100 percent of the costs for operating sentence-to-serve programs.

Its benefits go well beyond easing crowding and tensions in jails, according to Christianson.

The 6W crew has been involved with work ranging from helping plant trees for the Lac qui Parle County Soil and Water Conservation District to clearing invasive cedars from prairie lands at the Upper Sioux Agency State Park.

The program administered by 6W Corrections has been led by supervisors with experience in the construction trades. Its current supervisor, Mike Martin, leads work crews on projects that have ranged from remodeling a portion of the Chippewa County Courthouse to building wheelchair ramps at senior meal sites.

Christianson said she is not aware of any research showing whether the sentence-to-serve program reduces recidivism rates. However, she said there is lots of anecdotal evidence showing its benefits to inmates. Her corrections agents have heard from a number of participants who were able to find employment after their release from jail due to the work experience.

Workers in the program also earn credit of $6 an hour for their labor. It must be applied first toward any fines they may owe. Being able to pay a fine can be daunting for many unemployed inmates in today’s economy, she noted. Being able to pay off their fines can help inmates get a better start on a productive life once they leave jail.

In 2009, the 6W program in Chippewa, Lac qui Parle and Yellow Medicine counties logged 7,470 hours of labor and included 48 different inmate workers.

jchev Economic Issues, Inmate Programs, Minnesota, Sentencing

South Carolina has a new way of dealing with criminals that judges, victims’ advocates, crime and justice experts and Republicans and Democrats all have signed off on. The comprehensive new law is intended to save money while diverting nonviolent offenders from prison to community-based programs so space is available in prison for violent criminals. Gov. Mark Sanford signed it into law Wednesday. As reported in The Post and Courier.

The new law was one year in the making. It is intended to:

–Make sure there is space for high-risk, violent offenders in prison while saving the state an estimated $350 million, the cost of building a new prison.

–Help inmates transition from prison life back to society and increase supervision of former inmates in the community.

–Provide incentives for probationers and parolees to stay drug- and crime-free in order to go from being tax burdens to taxpayers.

The lengthy new law also redefines 22 crimes as violent, providing longer sentences for some offenders. The new sentences would apply to people who commit crimes beginning on Wednesday.

It would not alter the sentences of people already serving time or those awaiting a trial, although it will allow for the early release of geriatric, terminally ill and physically disabled inmates.

Other parts of the new law will become effective over time. For example, the new standards for future probation and parole assessments will begin in January.

Lily Lenderman of Spartanburg said she has fought for some of the changes contained in the new law for seven years, after her 27-year-old grandsonwas killed in an accident involving a habitual offender.

The offender was sentenced to seven months, served four months and was arrested again for another crime 18 days after he was released from prison, Lenderman said.

“From a grandmother’s heart, I couldn’t understand that,” she said. “My cause was to get justice for my grandson and to bring something good from his death, and through this I feel like my journey has been worth it.”

The new law also increases maximum penalties for several crimes, such as harboring a fugitive.

It restructures sentences such as requiring a mandatory 30-year sentence for death caused by arson, creating a crime of attempted murder to help charge people appropriately, increasing the amount of victim restitution, and updating fines for theft for the first time in 20 years so values are more in line with present-day costs.

Other odds and ends in the bill include removing the disparity in sentencing between possession of crack cocaine and powder cocaine, establishing an oversight committee to follow the process of the bill’s implementation and measure progress, and allowing people on probation and parole to earn good-time credit.

Overtime savings in the Department of Corrections will be shifted to the probation and parole system, which is currently overwhelmed with large and increasing case loads.

Sanford said the law was “smart on crime,” a sentiment echoed by many Wednesday. The governor said it strikes the right balance and it’s good for the taxpayers. Experts from the Public Safety Performance Project of the Pew Center on the States helped the state develop the new law.

The prison population 25 years ago stood at about 9,000 inmates and is today at 24,000. As the population grew, so did the cost of running the Corrections Department.

In the mid-1980s the prisons ran on $63 million a year. Today it costs $394 million, Sanford said. In another five years the cost is projected to increase by another $141 million, as the prison population grows by another 3,200 inmates.

“For the taxpayers, there is something fundamentally wrong with that system,” Sanford said. “Unless we’re going to build a bunch more jails, you have got to look at alternatives. This bill does that. I think it strikes the right balance and in the process saves the taxpayers over 400 million bucks.”

South Carolina already spends less than $40 per day on each inmate, the second-lowest rate in the nation, Sanford said.

Sen. Chip Campsen, R-Isle of Palms, called the legislation a massive undertaking. He was part of the group that spent the last year coming up with solutions to South Carolina’s haphazard criminal justice system.

“We really made a difference with this bill,” Campsen said. “It is going to change people’s lives. It will help offenders get back on their feet and make sure victims get compensated.”

jchev Sentencing, South Carolina

One day last fall, Norman Williams sat drinking hot chocolate with his lawyer, Michael Romano, at a Peet’s coffee in Palo Alto, Calif. At an outdoor table, Williams began to talk about how he’d gone from serving a life sentence at Folsom State Prison to sitting there in the sun. “After being shut down for so many years. I didn’t believe it,” he said of the judge’s decision to release him in April 2009. Story, with video, from the NY Times Magazine.

Williams, who is 46, was a homeless drug addict in 1997 when he was convicted of petty theft, for stealing a floor jack from a tow truck. It was the last step on his path to serving life. In 1982, Williams burglarized an apartment that was being fumigated: he was hapless enough to be robbed at gunpoint on his way out, and later he helped the police recover the stolen property. In 1992, he stole two hand drills and some other tools from an art studio attached to a house; the owner confronted him, and he dropped everything and fled. Still, for the theft of the floor jack, Williams was sentenced to life in prison under California’s repeat-offender law: three strikes and you’re out.

In 2000, three years after Williams went to prison, Steve Cooley became the district attorney for Los Angeles County. Cooley is a Republican career prosecutor, but he campaigned against the excesses of three strikes. “Fix it or lose it,” he says of the law. In 2005, Cooley ordered a review of cases, to identify three-strikes inmates who had not committed violent crimes and whose life sentences a judge might deem worthy of second looks. His staff came up with a list of more than 60 names, including Norman Williams’s.

Romano saw Cooley’s list as an opportunity. After working as a criminal-defense lawyer at a San Francisco firm, he started a clinic at Stanford Law School in 2006 to appeal the life sentences of some three-strikes convicts. In search of clients at the outset, Romano and his students wrote to Williams at Folsom about the possibility of appealing his conviction. Most prisoners quickly follow up when the clinic offers free legal help. But Williams didn’t write back. At Peet’s, Williams said he’d been too nervous. “I didn’t want to use the wrong words,” he said.

“You were lucky you were at Folsom,” Romano said. “It’s only a couple of hours’ drive from here. So we decided to come up and see you.”

“Yeah, if not, I’d still be there, staring at the walls,” Williams said. “Never had visitors before you came. I didn’t know what the visiting room looked like.”

IN 1994, the three-strikes ballot measure in California passed with 72 percent of the vote, after the searing murder of 12-year-old Polly Klaas, who was kidnapped from her slumber party and murdered while her mother slept down the hall. When the killer turned out to be a violent offender recently granted parole, support surged for the three-strikes ballot initiative, which promised to keep “career criminals who rape women, molest children and commit murder behind bars where they belong.”

The complete text of the bill swept far more broadly. Under California’s version of three strikes, first and second strikes must be either violent or serious. These include crimes like murder, attempted murder, rape, child molestation and armed robbery. But in California, “serious” is a term of art that can also include crimes like Norman Williams’s nonconfrontational burglaries. And after a second-strike conviction for such an offense, almost any infraction beyond jaywalking can trigger a third strike and the life sentence that goes with it. One of Romano’s clients was sentenced to life for stealing a dollar in change from the coin box of a parked car.

California’s repeat-offender law is unique in this stringency. Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.

In 2004, reformers put an initiative on the ballot, Proposition 66, that would have reduced the number of people going to prison for life by removing nonviolent property and drug offenses from the list of three-strikes crimes. Gov. Arnold Schwarzenegger attacked the ballot measure. He credited three strikes for a major drop in crime — to the frustration of most experts, who point out that California’s dip began in 1991, well before three strikes passed, and ended in 2000. “The great weight of empirical studies discounts the role of three strikes in reducing crime,” states a 2004 report signed by six criminal-law professors, including Franklin Zimring at U.C. Berkeley. Still, Prop 66 fell short, with 47 percent of the vote.

Now California is in the midst of fiscal calamity. Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at Pepperdine University, he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!” And yet Schwarzenegger has vowed not to touch the law. Meg Whitman and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending.

IF THERE’S A WAY to reform three strikes, it may follow Norman Williams’s route out of prison. Michael Romano, who is 38, got his client released without opposition from the L.A. district attorney by forging a working relationship with Cooley’s office. The 63-year-old Republican prosecutor seems an unlikely ally for a young defense lawyer. He joined the D.A.’s office straight out of law school. His office notched more death sentences last year than the state of Texas, and his lunchmates include Pete Wilson, the former governor who signed three strikes into law. Yet despite his conservative bona fides, Cooley shares the conviction that some number of third-strike offenders like Norman Williams don’t belong in prison for life.

After three strikes became law, Cooley watched one of his colleagues in the D.A.’s office prosecute Gregory Taylor, a homeless man who at dawn one morning in 1997 went to a church where he’d often gotten meals and pried open the door to its food pantry. The priest later testified on his behalf. Taylor’s first crime was a purse-snatching; his second was attempting to steal a wallet. He didn’t hurt anyone. Taylor was sentenced to life. “It was almost one-upmanship, almost a game — bye-bye for life,” Cooley says, remembering the attitude in the office.

Three years later, Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent. No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion.

It’s a mistake, though, to cast Cooley as a full-tilt reformer. He opposed Prop 66 for ignoring a defendant’s criminal history. Instead, in 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core. For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s. No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.

Cooley could once again pay a price for his three-strikes record. This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance. “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.” The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes. If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable. If he loses, three strikes will be all the more difficult to dislodge.

MICHAEL ROMANO has another, complementary strategy for changing the law. He has won victories for 13 three-strikes lifers in two years, 5 of them with the help of Cooley’s office, and he sees that small number of victories as making a case for larger reform. (He was on a panel I moderated at Yale Law School last month.) While that may sound far-fetched, the tactic has worked before. Romano’s boss, Lawrence Marshall, helped prove the innocence of 13 death-row inmates in Illinois in the late 1990s. His work set in motion a reassessment of the death penalty. A result was a statewide moratorium on executions that has held for a decade. “The hardest step is to get people’s attention,” says Marshall, associate dean for clinical education at Stanford. “And you can only get it with sympathetic cases.”

Romano started thinking about three strikes when he clerked for Judge Richard Tallman on the U.S. Court of Appeals for the Ninth Circuit in 2004. One afternoon, Romano watched his boss and two other judges quickly dispense with routine matters. One of them was a three-strikes appeal. “This guy, Willie Joseph, was doing life for aiding and abetting a $5 sale of crack cocaine,” Romano remembers. Legally speaking, his case for release was so weak that it took the judges “less than a few minutes” to reject the appeal.

And yet Willie Joseph’s life sentence was effectively the same as the punishment imposed on the most vicious killers in California. While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976. The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.

By working with three-strikers, Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous. “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work. Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”

In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial. The courts give extra scrutiny to each capital appeal that comes before them. And it’s only in death-penalty cases that the state pays lawyers to file a writ of habeas corpus, the route to challenging a conviction once direct appeal has been exhausted.

A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket. Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.

In court, Romano and his students don’t simply argue that their clients are minor offenders who don’t deserve to spend the rest of their lives in prison. That route to release is mostly blocked by the Supreme Court’s twin rulings on three strikes. In 2003, the justices voted 5-4 to reject the argument that three strikes violates the Eighth Amendment’s protection against cruel-and-unusual punishment. Because of criminal histories, the high court let stand the life sentences for Leandro Andrade, convicted of a third strike when he shoplifted videotapes from two Kmarts, and Gary Ewing, who walked out of a store with three golf clubs in a leg of his pants.

But the California Supreme Court has left open a different route to appeal. In 1998, the court told trial judges who were weighing a bid for leniency at sentencing after a three-strikes conviction that they could consider whether a defendant’s “background, character and prospects” place him outside the “spirit” of three strikes.

Romano argues that, as in capital cases, his clients deserve to ask for lesser sentences based on “mitigating evidence” — often of child abuse, mental illness or mental retardation. Romano’s students track down clients’ old files, ask about their childhoods and pry confirmation out of family members. From Norman Williams’s juvenile files and probation reports, Romano’s students pieced together a story of unbroken woe. The 8th of 12 children, Williams grew up with a mother who was a binge drinker. She pimped out Williams and his brothers to men she knew. A social worker wrote, “These men paid the boys money to perform anal intercourse on the boys and they . . . gave the money to their mother for wine.” As an adult, Williams became a cocaine addict and lived on the streets of Long Beach.

Romano’s students laid out this mitigating evidence, which hadn’t been introduced at trial, in a 56-page habeas brief before the state court in Long Beach last year. They got back a one-sentence order denying their claim.

Frustrated, Romano took the habeas petition to one of Cooley’s deputies, Brentford Ferreira. Would he agree that after 12 years in prison, Williams had done enough time? Would he say so to the judge?

Ferreira, a 24-year veteran prosecutor, fired back with questions of his own. “I said, O.K., what you’ve really shown me is that all this guy knows how to do is steal,” he remembers. “So why should I let him out? What are you going to do for him?” Romano knew that Ferreira was right. If just one of his clients got out and hurt someone the whole project would look menacing rather than crusading. Defense lawyers don’t usually act like social workers, but it was vital for Romano and his students to come up with a plan and a home for Williams, from the moment he walked out of Folsom.

Romano’s efforts to help Williams succeed on the outside led him to Eileen Richardson. Once the C.E.O. of Napster, she now runs a $500,000 program, the Downtown Streets Team, which contracts with the city of Palo Alto and local nonprofits to provide janitorial services. The work is done by former offenders and homeless people. Richardson pays them in rent subsidies and Safeway and Wal-Mart gift cards. They attend a weekly support meeting and wear different colored T-shirts as they move up a “ladder of success.”

With Richardson’s promise to give Williams a try, Romano persuaded Ferreira to go with him to see the judge in Long Beach. The prosecutor’s support made the difference: Williams was resentenced to time served. Shortly after he left Folsom a year ago, he started on the Streets Team mopping and waxing the floors of a local shelter. Richardson says Williams hasn’t missed a day of work since.

IF STEVE COOLEY wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris. But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.) It’s a reminder of how far the prosecution of Gregory Taylor, the homeless man who broke into the church, has taken Cooley from the expected comfort zone of a prosecutor.

Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.

Between 2001 and 2008, the Los Angeles D.A.’s office automatically sought life sentences for about 5,400 repeat offenders whose third strike was violent or serious. The office also screened 13,900 cases in which the third strike crime was neither violent nor serious, to find out whether the defendant had a past record of hard-core crimes. During these years, prosecutors asked for life in only 25 percent of these cases. The other 75 percent are the nonviolent three-strikers whom the law could safely be amended to spare, Romano argues. “Those are the folks who shouldn’t be doing life,” he says. If Cooley becomes attorney general, he’d have more clout to put behind a 2012 reform initiative, if he chose to.

Norman Williams will soon move into his own apartment in Palo Alto. None of the other clients for whom the Stanford clinic has won release have gotten in trouble. And Romano and his students recently started representing Gregory Taylor, who is still serving life in San Luis Obispo prison.

jchev California, Sentencing

The total state prison population across the nation declined in 2009 for the first time in almost 40 years. The numbers didn’t exactly plummet — less than half a percentage point, or 4,777 fewer inmates than in 2008. The decrease, however, represents a sharp contrast from 1972 to 2008 when state prison populations grew by 708 percent. News from the Tulsa World.

Even with the slight decrease, the number of inmates in state institutions — 1,404,053 — is equivalent to locking up every man, woman and child in Philadelphia.

Last year, 26 states housed fewer inmates than they did the year before, according to a recent report by the Pew Center on the States. Twenty-four states, including Oklahoma, continued to add inmates — some with a vengeance.

As of Dec. 31, Oklahoma had 26,397 inmates, up about 530 inmates from 2008. That 2.1 percent increase might not sound so bad unless you consider that the prison system:

• Is at 99 percent capacity with 1,500 inmates backed up in county jails
• Is down 700 corrections officers
• Is in a state that has a $1.2 billion revenue shortfall going into the new fiscal year beginning July 1

Oklahoma is tough on crime. Its Legislature, in fact, is habitually TOC, in good times and in bad, and especially in election years. As one retired lawmaker put it: “We’ve felonized just about everything but flatulence and I hear that’s coming soon.”

Even with a funding crisis, the drumbeat to felonize more crimes — 26 — and to enhance penalties for existing crimes — 19 more — continued this legislative session.

Board of Corrections member David Henneke recently called the prison population levels “beyond critical.” Board member Robert Rainey complained lawmakers had mostly ignored the board’s suggestions on ways to save money.

Several states,the Pew report aid, have enacted reforms designed to give taxpayers a better return on their public safety dollars. Strategies include:

• Diverting low-level offenders and probation and parole violators from prison
• Strengthening community supervision and re-entry programs
• Accelerating the release of low-risk inmates who complete risk-reduction programs

Oklahoma has adopted some of those policies but not in great enough numbers to make a major difference.

About 90 percent of the offenders we lock up eventually get out and live among us. But the state spends relatively little money treating inmates for addictions or training them for jobs. And, we make it impossible for most felons to find employment when they do get out. So, too many career criminals take up where they left off when released because they have no other skills and drug abusers return to their addictions. It’s a sure-fire combination for keeping the prisons full.

In the past 20 years, corrections costs nationally have quadrupled and account for one of every 15 state general fund discretionary dollars. Corrections represents the second fastest-growing category of state budgets behind Medicaid.

The Pew report, however, found that the public is warming to prison alternatives.

“The public is supportive of using community corrections rather than prison for nonviolent offenders,” authors said. For instance, in a 2007 voter poll, 71 percent of Texas respondents preferred a mandatory intensive treatment program as an alternative to prison, a level of support that increased to 83 percent when respondents were told the diversion of lower-level offenders could help avert $1 billion in new prison costs.

Declining state revenues are starting to make policy leaders realize that the public’s support of incarceration may wane when it’s done on a scale that robs mightily from other state services.

Advances in supervision technology, including GPS monitors, faster drug tests and ATM-like reporting kiosks, offer authorities new technologies to monitor the whereabouts and activities of offenders in the community.

“These capabilities are giving lawmakers, judges and prosecutors greater confidence that they can protect public safety and hold offenders accountable with sanctions other than prison,” Pew authors said. Policy leaders are realizing that they can effectively reduce their prison populations, and save public funds without sacrificing public safety.

“That’s a drastically different policy environment than the one that existed in the 1970s and 1980s, when states decided that building more and more prison cells was the answer to crime,” authors said.

For some offenders incarceration is the appropriate punishment. Other offenders might serve their debt to society through less costly means, freeing up funds for other priorities such as seeing that students are educated, that roads, bridges and other infrastructure are maintained, that the elderly and fragile are protected and that the health care system is adequate.

In punishing lawbreakers it’s important to distinguish between those we fear and those we’re just mad at. We have to prioritize spending. Do we throw Bubba in prison or do we throw grandma out on the street? When we put people behind bars who might be punished through less expensive means, we sometimes end up punishing ourselves.

jchev Alternative Sentencing, Economic Issues, Oklahoma, Overcrowding

The Supreme Court on Monday ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life in prison without the possibility of parole. The ruling expanded a principle the court has never endorsed outside the death penalty — that an entire class of offenders may be immune from a given form of punishment. Reported in The New York Times.

Five justices, in an opinion by Justice Anthony M. Kennedy, agreed that the Eighth Amendment’s ban on cruel and unusual punishment forbids sentences of life without parole as a categorical matter for juvenile offenders who do not participate in homicides.

“A state need not guarantee the offender eventual release,” Justice Kennedy wrote, “but if it imposes the sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term.”

Chief Justice John G. Roberts Jr. endorsed only a case-by-case approach, but he voted with the majority in saying that the particular inmate in question had received a sentence so harsh that it violated the Constitution.

The case involved Terrance Graham, who in 2003, at age 16, helped rob a Jacksonville restaurant, during which an accomplice beat the manager with a steel bar. Mr. Graham was sentenced to a year in jail and three years’ probation for that crime.

The next year, at 17, Mr. Graham and two 20-year-old accomplices committed a home invasion robbery. In 2005, a judge sentenced Mr. Graham to life for violating his probation.

In the context of capital punishment, the Supreme Court has carved out categories of offenders and crimes that are not subject to the death penalty, including juvenile offenders and those who do not take a life. Monday’s decision applied those two decisions in Venn diagram fashion to life-without-parole sentences.

Justice Kennedy, who was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, said both national and international consensuses supported the court’s ruling.

Justice Clarence Thomas, joined by Justices Antonin Scalia and Samuel A. Alito Jr., said the majority was wrong about the facts in both cases and wrong as a matter of principle to take account of the international opinion.

Thirty-seven states, the District of Columbia and the federal government have laws allowing life-without-parole sentences for juveniles convicted of nonhomicide offenses. That represents, Justice Thomas said, a super-majority of states in favor of the punishment.

Justice Kennedy responded that a study relied on by Mr. Graham and supplemented by the court’s own research located only 129 juvenile offenders convicted under such laws. Seventy-seven were in Florida, the rest in 10 other states. Those numbers, Justice Kennedy said, make the sentence “exceedingly rare” and demonstrate that “a national consensus has developed against it.”

Justice Kennedy added that the sentences at issue had been “rejected the world over.” (Indeed, only the United States and perhaps Israel, he said, impose the punishment even for homicides committed by juveniles.)

“The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” Justice Kennedy wrote, “demonstrates that the court’s rationale has respected reasoning to support it.”

Justice Thomas disputed Justice Kennedy’s math, saying 11 nations seem to allow the punishment in theory. More important, he said, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.”

He added that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Justice Thomas wrote, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”

Although the majority limited its decision to nonhomicide offenses, advocates may try to apply its logic more broadly to the some 2,000 inmates serving life-without-parole sentences for participating in killings at 17 or younger.

Justice Kennedy noted, for instance, that juveniles serving life will typically spend more years and a greater percentage of their lives in prison than people who commit the same crime later in life.

The case decided Monday, Graham v. Florida, No. 08-7412, was argued in November along with a companion case, Sullivan v Florida, No. 08-7621. The court declined to decide the second case, which involved Joe Sullivan, who raped a woman when he was 13.

Instead, the court dismissed the case as improvidently granted, probably because it was beset with procedural difficulties. Mr. Sullivan’s lawyer, Bryan Stevenson, said his client and everyone else in his situation would be entitled to challenge their sentences under the Graham decision.

jchev Juvenile Justice, Sentencing, United States

As lawmakers struggle to balance South Carolina’s budget, it is clear business as usual will not do. There is no state agency where that is more true than the Department of Corrections. Story from The Island Packet. Report available from the South Carolina Legislature.

But for this agency there is a ray of hope in a sentencing reform package that has passed the Senate and now is before the House.

It is the product of a two-year study of the state’s criminal justice system, and its provisions are expected to save us about $400 million in prison operation costs and new prison construction over the next five years.

It also offers a way to curtail repeat offenses by helping nonviolent offenders become productive citizens.

House members should not hesitate to pass the bill; Gov. Mark Sanford already has expressed strong support for it.

Here are some facts about our prison system gleaned from the Sentencing Reform Commission’s report and other sources:

• South Carolina’s prison population has increased from 9,100 inmates in 1983 to more than 25,000 in 2009. One in 38 adults in South Carolina is under the control of the corrections department. The prison population is expected to grow to nearly 28,000 by 2015.
• The state Department of Corrections spends $39.85 a day per prisoner, the second lowest rate in the country, but still has run a deficit for the past three years.
• Building new prison space could cost $317 million and add $141 million to the department’s annual operating costs.
• The overall inmate population is over capacity at maximum- and medium-security prisons.
• In South Carolina, 46 percent of offenders are in jail, while 54 percent are on probation or parole. Nationally, states average 30 percent in prison and 70 percent on some type of supervised release.
• Sentencing policies have caused the number of people in the state entering prisons for nonviolent drug and property crimes to triple since 1980.
• Forty-nine percent of South Carolina’s prison population is being held for nonviolent offenses.

The legislation increases penalties for repeat offenders of “serious” or “most serious” crimes and expands the state’s violent crime list. It also reduces sentences for some nonviolent offenders and offers options for community-based programs to help reduce the number of people who return to prison.

The Sentencing Reform Commission sums up its goals to make South Carolina safer this way:

Prison space should be reserved for violent criminals and those with violent tendencies. Low-risk offenders are more effectively managed outside the prison system.

This reform package is a welcome dose of common sense on the subject of crime. We can’t afford for it not to become law.

jchev Sentencing, South Carolina

The new sentencing procedure implemented by Judge James W. Counts will not only benefit taxpayers, but also offenders waiting to be transferred to a state correctional facility. Reported in the Alamogordo Daily News.

In the past, the Otero County Detention Center has had an inmate population of over 200 inmates on any given day.

Judge Counts recently said as of April 13 there were 183 inmates housed at the detention center compared to 224 inmates on March 12.

Counts is trying a new administrative procedure to speed up the process of delivering sentencing orders to OCDC officials for inmates who are being housed at the facility after they’ve been convicted of a crime in his courtroom. It could save county taxpayers an estimated $1,440 per inmate being housed at the detention center.

The procedure is in its infancy.

In the past, the administrative procedure for the court is to sentence a person convicted of a crime. The person is then transported to the detention center, where officials have to wait for a certified transfer order to take the inmate to a facility within the New Mexico Department of Corrections. It could take up to three weeks for OCDC officials to get the transfer orders.

Counts has been trying to reduce the wait time on transfer orders to three days, which would bring down the housing cost for inmates to $240 for the county. He has additionally proposed a real time sentencing procedure, which could bring the cost down to zero.

The reduced wait for transfer time would not only benefit taxpayers but also benefit convicted offenders and OCDC officials. The detention center has a capacity to house 200 inmates. It does have the capability to move overflow to facilities in Baylor, Texas, and the Otero County Correctional facility in Chaparral.

Detention Center Services director Virginia Blansett said she was thrilled when Counts contacted her about the new procedure.

“It’s frustrating for us to wait three weeks or more for the orders,” Blansett said. “We’re usually over 200 inmates at the center at any given time. We can keep the inmates safe. It just makes it a bad environment. We also want them to be safe.”

She said it’s not only frustrating for staff but also frustrating for the inmates.

“I can’t give the inmates any credit for good time,” Blansett said. “Good time credit has to be ordered by a judge. They don’t get good time credit until they get to the Department of Corrections.”

She said the new procedure is a benefit to the taxpayers, inmates, detention center official and the court.

The Department of Corrections gives nonviolent incarcerated offenders one day of good time credit per every day served in a facility.

New Mexico Department of Corrections Classification Bureau Chief Jeff Serna said a nonviolent offender sentenced to four years in DOC for a nonviolent offense can get 30 days of good time credit after serving 30 days.

“The inmate has to have no misconducts during the 30 days,” Serna said. “The inmate has to be in a therapeutic program, or worked in the corrections industry program or be assigned to work.”

The good time credit of a day for a day is for nonviolent offenders, Serna said. Violent offenders have to serve 85 percent of their sentences before accumulating any good time credit.

“All the good time credits are governed by New Mexico state statute,” he said. “Our credits are applied to inmates convicted and sentenced after July 1, 1999.”

DOC has inmates serving under two different good time statutes. An offender sentenced for first-degree murder will not be eligible for good time credit.

Diana Martwick, 12th Judicial District Attorney, said she is excited about the new sentencing procedure.

“We anticipate that this will assist us in saving local taxpayer money for defendants who are incarcerated in our local detention centers,” Martwick said.

She said once the defendant is sentenced and the judgment and sentence is entered, the defendant can be transported to the Department of Corrections, which is a burden that is then shared by all the taxpayers in the entire state instead of just the county.

Defense attorney James Walker said he is in favor of the new sentencing procedure.

“I think it’s probably helpful for the defendants jailed at the OCDC and going to the penitentiary to have their sentencing order done as quickly as possible,” Walker said. “It would help the person specifically going to the penitentiary to start getting good time credit.”

Counts said he realizes the procedure is based on the fact that technology has advanced in recent years.

“There was a time when we couldn’t have done it,” Counts said. “Twenty years ago, we couldn’t have somebody in the court typing away on a Selectric typewriter. It just would not have made any sense. I think the technology has changed to the point that it’s something we can do.”

jchev Economic Issues, New Mexico, Sentencing

Gov. Jennifer Granholm’s proposal to cut prison sentences for well-behaved inmates failed its first test in the Legislature on Tuesday.

The plan to restore so-called good time credits for prisoners was left out of a 2010-11 budget adopted by a Senate subcommittee, along with $130 million in savings the administration forecast from closing four or five prisons.

The Senate alternative assumed savings instead from canceling a scheduled 3% raise for state employees and ordering the Michigan Department of Corrections to implement other cost-cutting. But the prison budget adopted by the subcommittee still came in at nearly $2 billion — $32 million higher than Granholm’s original proposal.

Subcommittee Chairman Alan Cropsey, R-Dewitt, said the wholesale release of prisoners — MDOC officials estimated that about 5,000 inmates could be released by the end of the year if good time credits were reinstated — “doesn’t make sense at all.”

“The governor gave us a budget based on a policy that is not going to happen,” he said.

Administration officials countered that the proposed Senate spending plan, which assumes legislative action to revoke the employee pay raise, is no less fanciful. An effort to do so in the Senate fell short two weeks ago. The deadline for both the House and Senate to reject the raise is April 11.

But Cropsey said the Granholm administration’s efforts to control prison spending have endangered the public and shifted the financial burden to local police departments and jails.

Further, the Department of Corrections has been far less successful cutting costs than it has at cutting the number of inmates, he said. The state’s cost per prisoner has climbed 17% in the last two years, he said.

MDOC officials said much of the increase is attributable to factors outside the department’s control.

The department budget is scheduled to be voted on by the full Senate Appropriations Committee as early as today. Separate legislation to reinstate good time remains stalled in the House.

Granholm’s good time proposal follows two years in which MDOC has accelerated the release of thousands of inmates to parole.

jchev Early Release, Michigan, Sentencing

A study of the way people are sentenced to prison in Missouri suggests more people would be better off if they did NOT go to prison. Reported on MissouriNet.

The Missouri Sentencing Advisory Commission evaluates people on several criteria after they’ve pleaded guilty or after they’ve been convicted. The commission determines the risk factors that each person will re-offend when they’re released from custody.

Every two years it assesses how sentencing works. More than three-fourths of the times the commission recommends probation, a judge agrees. If the commission recommends probation and the judge sends someone to prison, the recidivism rate is measurably higher.

Commission chairman Michael Wolff, a Supreme Court judge, says 120 days of shock time in prison might not be the best. “Recidivism rates for people convicted given probation for theft were like 19 or 20 percent. The recidivism rate for people who went to prison was 48 percent…But the recidivism rate for people who went to the 120-day (shock time prison) program…were 45 percent.”‘

Wolff says the study suggests that’s because they spend their time associating with other offenders–while they’d be associating with better people if they had been put on probation.

The commission says more than half of Missouri’s prison inmates are nonviolent offenders whose risk of re-offending are increased by their time in prison.

The report is available at http://www.mosac.mo.gov.

jchev Missouri, Sentencing

Hundreds of hearings are being held statewide for prison inmates to have their sentences reduced under a new state law.  Lane County Circuit Court is handling more of the hearings than the expected, said court administrator Liz Rambo. Reported by KVAL News.

On Wednesday, Lane County District Attorney Alex Gardner released this statement:

Since we have been receiving many media inquiries on the subject of so-called “3508 hearings”, I’m sending a formal statement of my position. It distills to these few points:

1. Sharply declining revenue left the legislature with difficult financial choices.
2. Oregon’s District Attorneys opposed increasing so-called “good time” (aka: “earned time”) from 20% to 30% and offered lower-risk money-saving alternatives to the legislature
3. “Earned Time” is a misnomer for the additional 10%, as the judges are prohibited from considering an inmate’s prison conduct in making related decisions.
4. Although these hearings are a substantial burden on our offices, Oregon District Attorneys are meeting the demand and protecting our communities within the law as the legislature has defined it.

jchev OR Lane County, Sentencing

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report. News from The New York Times.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate, and criticized efforts to use cost arguments against the death penalty. The government could “knock a large chunk off of the cost” of execution by streamlining the review process, he said.

Douglas A. Berman, an expert on sentencing law at Ohio State University, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states with similar methods did not violate the constitutional prohibition against cruel and unusual punishment.

This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the execution in Ohio this month of Kenneth Biros. It came after a legal challenge to Ohio’s protocol, a botched execution under the state’s three-drug method for another prisoner, and a shift to a one-drug execution method. While other court challenges to lethal injection are proceeding around the country, he said, Ohio’s action suggests that “states are moving forward.”

jchev Death Penalty, Sentencing, United States

Initiatives to reduce incarceration, according to Jane Klekamp, the director of the La Crosse County Justice Sanctions program, are not always popular. Story from the News Republic.

Speaking to about 14 members of the Portage community Tuesday in St. Mary’s Catholic School cafeteria, Klekamp said that various programs used in her home county have helped to decrease the incarcerated population and prevented millions in incarceration costs.

“We have focused so much on the punishment side of this that I think we have just lost sight of what would be the most helpful,” Klekamp said.

Justice Sanctions takes advantage of various initiatives that focus on changing people’s behavior instead of just punishment — initiatives like a alcohol and drug court systems that focus on treatment instead of jail for certain offenders, and programs that help people reinstate their drivers’ licenses after they are revoked.

Klekamp said that the program saves the use of about 244 beds per day in the county at a savings of $73 per bed. Meanwhile, Klekamp said it costs her program about $13-$19 per day for each of those they are trying to keep out of jail.

Klekamp said that despite the successes of Justice Sanctions it is still hard to get political support for their programs.

“Motivating the system to change is as complicated as getting any person to change. It is no easier,” she said.

The speaker was hosted by the Columbia County Community Corrections Council, which operates the Circles of Support program. The Circles of Support program helps mentor individual offenders once they leave jail. The program is funded by Columbia County and depends on volunteers.

John Kinsler, who is with the council and is also a volunteer in the Circles program, said Tuesday that the Council is looking for a new program to initiate. He said Klekamp and future speakers will help the council decide where they can be most effective in Columbia County.

“Right now what we are trying to say is that Circles of Support is somewhat stable. We need more volunteers but it is making an impact on people’s re-offense and so what else can we do,” Kinsler said.

The more avenues of support, Kinsler said, the better.

“If you have only got one spoke on a wheel, it is kind of a rough ride, and as you add more spokes it kind of smooths it out a bit,” he said.

Whichever spoke the council decides to work on next, he knows that it will need to have a minimal cost and function primarily on community support or grants. There is no available money in Columbia County’s budget.

Columbia County Supervisor Richard Boockmeier, who represents parts of Portage on the board and serves on a committee that oversees the county’s justice system, said that the alternative programs have merit but said that there is little financial or political support to be found in the county government.

“Circles of Support is a pretty effective program but it is not a popular program among county board supervisors. A lot of them don’t like it because it is too liberal. They want to buy bars,” Boockmeier said.

That is not how Boockmeier sees it though.

“The less people we have in jail the better our community is going to be,” he said.

jchev Alternative Sentencing, WI La Crosse County

The Supreme Court of Kentucky suspended executions in the state Wednesday, ruling that officials did not follow state law in adopting its procedures for killing inmates. Reported in the New York Times.

The decision did not address whether it is inhumane to use a three-drug cocktail in lethal injections, as critics have argued.

The Kentucky case concerned three inmates slated for execution: Brian Keith Moore, Ralph Baze and Thomas C. Bowling.

Mr. Baze’s case made its way to the United States Supreme Court, which stopped lethal injections across the country until last year, when it issued an opinion declaring Kentucky’s death penalty method — using the three-drug cocktail — to be constitutional.

The Kentucky justices said the Department of Corrections must follow the rules of the state’s administrative procedures act in the protocol for lethal injection, which include publication of the details of the procedure and public hearings on the matter.

“The Department of Corrections is required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol except those limited issues of internal management that are purely of concern to department personnel,” wrote Justice Lisabeth Hughes Abramson for the majority of the court.

Gov. Steve Beshear issued a statement on Wednesday, saying his administration would “carefully review the decision and consider which steps we need to take.” Kentucky has 36 inmates on death row.

Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California, Berkeley, hailed the Kentucky decision, saying it “will shine light on the lethal injection process and create accountability for the procedures that are used.”

Similar court challenges led to new regulations in California and Maryland, and Nebraska recently published a proposed protocol, Ms. McCracken said.

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., a group that supports the death penalty, said, “This has nothing to do with the validity of the protocol, avoiding suffering, or transparency in decision making.” Instead, he said, “It is purely a stalling tactic.”

The dissenting Kentucky justices stated a similar view.

In a partial dissent, Justice Bill Cunningham wrote that the court’s decision “turns on a sterile technicality” and would lead to further challenges and delay — “maybe much more delay” — in death penalty cases. Justice Will T. Scott wrote that all three men’s crimes occurred more than a decade ago, and one, 30 years ago.

“These cases cry out for closure. The families of the victims cry out for closure,” he wrote. “Respect for our law erodes when timely punishment is not given its fair place upon the scales of justice.”

Mr. Baze told The Associated Press that he understood that his execution was likely to go forward eventually, but applauded the decision. “It gets us through Christmas,” he said. “That’s a couple of months. That’s good.”

The Kentucky opinion was handed down on the same day that the United States Court of Appeals for the Sixth Circuit, in Cincinnati, refused to stop an execution in Ohio based on a challenge to that state’s protocol for lethal injection.

The convict in that case, Kenneth Biros, faces death by lethal injection on Dec. 8, but obtained a stay of execution based on his argument that Ohio’s old protocol — which used the three-drug method — constitutes cruel and unusual punishment. But because of the shift to a single drug, the court said, “any challenge to Ohio’s three-drug execution protocol is now moot.” It left open the possibility that Mr. Biros or other prisoners might challenge the new one-drug protocol.

Prof. Douglas A. Berman, an authority on sentencing law at Ohio State University, said judges around the country were coming down on opposite sides of the same question and asked, “Where are we going to let the risk of error lie?”

Judges who are uncomfortable with the death penalty, he said, “will usually want to be shown that every possible error, every possible risk of error has been eliminated” before allowing an execution. Others, he said, “will say, ‘close enough for government work.’ ”

jchev Kentucky, Sentencing

The Massachusetts Bar Association is pleased that sentencing reform in Massachusetts cleared a major hurdle when the Legislature passed an MBA-backed bill that grants parole eligibility to nonviolent drug offenders serving mandatory minimum sentences.

“We applaud the Senate’s action on sentencing legislation,” said MBA General Counsel/Acting Executive Director Martin W. Healy. “Passage of mandatory minimum reforms will not only save the commonwealth million of dollars, but reduce the rate of recidivism among offenders.”

A long-standing opponent of mandatory minimum sentences, the MBA’s Drug Policy Task Force issued a report earlier this year recommending meaningful drug sentencing reform. The organization maintains the astronomical increase in the state’s correctional population – at a cost of $48,000 per offender annually – is partly due to an increase in drug arrests.

Under the current sentencing laws, nonviolent drug offenders face a one-size-fits-all system and have no incentive to plead guilty because judges have no discretion over sentences, according to MBA.

“It’s a giant step forward,” MBA Drug Policy Task Force Chair and Past President David W. White Jr. said of the legislation. “People have been arguing for sentencing reform for decades. We’re only halfway there, but it is a sea change.”

In addition to the cost savings, this legislation would reduce recidivism. Instead of being released directly into the community, offenders would be eligible for parole and work release programs.

Numerous studies have shown these programs help offenders re-enter the community and prevent them from re-offending, which approves public safety, according to the MBA.

The bill now awaits action by the House of Representatives. Formal legislative sessions have ended for the year and will resume in January.

jchev Massachusetts, Parole, Sentencing

A federal bill that would impose mandatory jail time for serious drug crimes would increase the workload of the parole system, and the government intends to inject more than $23.3 million over five years to ease the burden, according to the commissioner of the Correctional Service of Canada. Reported by Canwest News Services.

Commissioner Don Head said at a Senate committee hearing Thursday that if the bill is passed, CSC will receive an additional $23.3 million over the next five years to support an expected increase in cases for the National Parole Board.

The parole board supervises both federal offenders who are sentenced to two years or more, and provincial offenders in some provinces.

Under the proposed legislation, mandatory sentences would be handed out to everyone convicted of a serious drug offence, such as trafficking, production, and possession for the purpose of trafficking narcotics. A person who grows five to 200 marijuana plants with intent to sell would get a minimum six-month sentence. An addict selling heroin to fellow addicts near a park could go away for two years.

Head said that while there’s no evidence that federal prison populations will increase with mandatory sentences, provincial institutions likely will be affected by the proposed changes outlined in the Conservative government’s Bill C-15, which is now being debated in the Senate.

“There’s going to be some impact in terms of (provincial) sentence populations and (the provinces) will have to re-visit their approach to providing programs to provincial offenders,” Head said after his testimony. “At this point, the figures that we have don’t allow us to draw definitive conclusions in terms of the impact on the federal institutional population, and we’ll continue to assess that as time goes on.”

Head said CSC continues to invest in prison substance abuse programs and treatment.

Critics of Canada’s proposed mandatory drug sentences compare them to similar failed U.S. policies and say they lead to prison overcrowding and end up punishing street-level dealers, most of whom are drug addicts who need treatment, not jail time, they say.

Furthermore, the bill would imprison people who do not pose an immediate threat to the public, said Neil Boyd, criminology professor at Simon Fraser University in suburban Vancouver.

“Bill C-15 will have the unfortunate consequences of annually jailing thousands of Canadians who do not threaten the social fabric any more than those who produce, in a regulated framework, drugs such as tobacco and alcohol,” Boyd said at Thursday’s hearing.

He asked for an amendment to the bill so that cannabis growers are not treated along the same lines as heroin and cocaine traffickers.

Boyd also said the bill, when applied to the recorded number of British Columbia’s marijuana cultivators, would cost a total of almost $30 million annually for the additional imprisonments.

According to CSC, 80 per cent of offenders have grappled with substance abuse, and for approximately 50 per cent of them, there was a direct link between their crimes and substance abuse.

Head said CSC has an anti-drug strategy to combat illicit substances in prisons, with $122 million in funding announced in August 2008 for the next five years. He acknowledged the difficulty in ensuring that institutions remain drug-free.

The Senate will continue to hear testimony and is expected to go through the bill’s legislation clause-by-clause on Dec. 3.

jchev Canada, Parole, Sentencing

Canyon County considers a May election after Tuesday’s jail bond defeat; authorities worry about crime, and consequences with no teeth. The failure last week of a bond measure to pay for a new Canyon County jail leaves officials stymied on how to deal with overcrowding — and with a lawsuit-sparked limit on the number of inmates the jail can house. One alternative: sentence criminals to the Sheriff’s Inmate Labor Detail, like this one cleaning up trash at the Canyon County public shooting range. Complete details in the Idaho Statesman.

Local officials have long lamented the overcrowding at Canyon County’s jail. But now that the prisoner population has been capped to ward off a civil-rights lawsuit, local police and court leaders are equally worried about the toll from keeping the jail uncrowded.

“We’re letting people out of jail I really wish could be kept in jail,” said Caldwell police Chief Chris Allgood. “And most people with misdemeanors don’t even go to jail in the first place, because there’s no room.

“I believe the people who regularly commit crimes will realize they won’t be going to jail, and the deterrent will go away,” Allgood said. “Our crime rate could go back up.”

Police issue tickets or book and release nonviolent offenders who otherwise would go directly to jail. Prosecutors are seeking, and judges are granting, varied alternative sentences for crimes that earlier would have landed the perpetrators behind bars.

“My perception is, everyone is frustrated that Canyon County’s brand of justice can’t be enforced any more because the jail can’t hold the people,” County Prosecutor John Bujak said Friday, three days after voters defeated a $46 million bond measure to build a new, much bigger jail.

County leaders are considering putting the jail issue back on the ballot, possibly in May. But even if the bond had passed Tuesday, it would have taken at least two years to get the new jail up and running.

And in the meantime, the county must abide by an agreement it forged with the American Civil Liberties Union to keep the jail population within state standards. The August pact, prompted by a class-action lawsuit alleging inhumane conditions, means no more than 296 inmates in a structure that has held as many as twice that number in recent years. About 60 more can be kept in the adjacent 1940s-era jail, now known as “the annex.”

As a result of the inmate cap, local law enforcement agencies have signed agreements with the county not to jail most misdemeanor offenders.

“We’ll still take people to jail for anything violent – domestic violence, violation of protection orders,” Allgood said. “The jail has worked very well with us to take the people we bring in. They may have to make room somewhere else.”

Report continues on the Idaho Statesman.

jchev Early Release, ID Canyon County, Idaho, Overcrowding, Sentencing