America’s Prison Spree Has Brutal Impact

National Journal

The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.

But a far more important imprisonment story gets less attention because it’s a running sore that rarely generates dramatic "news." That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)

America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.

Yes, violent criminals should be locked up for long enough to protect the rest of us. But the mass, long-term imprisonment of nonviolent, nondangerous offenders in recent decades and excessive terms for others has made us no safer while ruining countless lives and converting potentially productive citizens into career criminals.

Mukasey Feeds the Prison Binge

National Journal

Attorney General Michael Mukasey has in most ways been a vast improvement over his predecessor, Alberto Gonzales. But at a time when an unprecedented one in 100 American adults is behind bars — including one in nine black men between the ages of 20 and 34 — he has so far been a big disappointment to those hoping for a change in the lock-’em-up-and-throw-away-the-key policies on nonviolent drug offenders.

Mukasey has resorted to counterfactual fear-mongering in calling for Congress to roll back the U.S. Sentencing Commission’s wise, unanimous decision last year to reduce retroactively the especially cruel and counterproductive prison terms provided by its sentencing guidelines for crack cocaine. The commission’s action has made 19,500 federal prisoners serving crack sentences — more than 80 percent of whom are black — eligible at some point to seek sentence reductions averaging just over two years.

The commission’s decision, which became fully effective on March 3 over Mukasey’s objection, was a step toward slowing the sixfold increase since 1970 in the number of people behind bars in the United States, from 330,000 to 2.3 million, more than in any other nation. The impact of this prison binge on hundreds of thousands of young black drug offenders with (in most cases) no record of violence has been especially harsh. The seven-member commission has also urged Congress to reform the savagely severe federal mandatory minimum sentencing laws for crack.

But Mukasey objected to the retro-active sentence reductions, asserting in a February 25 speech to the Fraternal Order of Police (and on other occasions) that these 19,500 crack offenders "are some of the most serious and violent offenders in the federal system."

Innocents in Prison

The Atlantic

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners—including 15 who had been sentenced to death—have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey’s and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

Opening Argument – Our Unjust Sentencing System: The Wrecking Ball As Cure

National Journal

Acting Solicitor General Paul Clement speaks of "carnage and wreckage" in the federal criminal-sentencing system. Supreme Court Justice Stephen Breyer worries that his colleagues may be destroying the "noble objective" of ending unjust disparities in the sentencing of similar defendants for similar misconduct. Law professor Frank Bowman accuses the Supreme Court of creating "a ghastly mess, bringing the federal criminal-justice system to a virtual halt and putting a number of state systems in disarray."

Opening Argument – Ashcroft and Congress Are Pandering to Punitive Instincts

National Journal

"When the gates of the prison open, the path ahead should lead to a better life," President Bush said in his State of the Union address. In proposing a $300 million program to help the 600,000 inmates released from prison each year re-enter society, he called America "the land of the second chance."

Legal Affairs – It’s Time to Stop Packing Prisons With Two-Bit Crack Users

National Journal

Nobody could call Sen. Jeff Sessions soft on crime. The Alabama Republican is a passionate drug warrior. He won a Justice Department award in 1991, when he was the U.S. attorney in Mobile, for "significant achievement in the war against drug trafficking." Sessions says, "They could put that on my tombstone, and I’d be satisfied." He supports severe mandatory minimum sentences for truly dangerous drug dealers.

Legal Affairs – Good Pardons, Bad Laws, and Bush’s Unique Opportunity

National Journal

The uproar over ex-President Clinton’s abuse of his pardon power in some cases has overshadowed his salutary use of it in others-in particular, his commutations of the savagely severe prison terms of more than 20 nonviolent, nondangerous bit players in drug deals. These clemencies were long overdue palliatives to the cruel and irrational sentencing laws that sailed through a drug-crazed Congress in the 1980s. But Clinton freed only a fortunate few of the tens of thousands of nonviolent prisoners-mostly black and Hispanic-currently serving mandatory minimum prison terms of five, 10, and 20 years for relatively minor drug crimes. Thousands more will disappear into the gulag every year.

Legal Affairs – The Issue Politicians Are Ignoring: 2 Million Prisoners

National Journal

The good news is that crime is no longer the divisive issue it used to be in national politics, which is why Al Gore and George W. Bush haven’t been arguing about it. The bad news is the reason: Gore and most other Democrats have aped Republicans in demanding ever-longer prison terms, not only for the violent career criminals who should be behind bars, but also for small-time, nonviolent drug offenders and others who present no real threat to society.

A Quiet Crisis in the Courts

There is a cancer in the federal criminal-justice system. It gets little attention from Congress, the executive branch, the media, or the public. And it is spreading fast.

Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.

The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.

The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.

He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."

The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.

Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.

With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.

Locked Up in Jail, Locked Out of Court

"Since 1982 inmates increasingly have been placed two to a cell because the prison lacked space for its increasing population….Most … spend approximately 14 hours a day in their cells…. The court found that ‘[b]ecause these shared cells are so tiny, only one inmate at a time can stand in the cell; the other must lie on the bed.’… [P]hysical exercise is impossible…. Essentially, an inmate can only lie on his bunk or sit at the desk or on the bunk…. The lamp provides adequate light for the inmate on the top bunk to read, but virtually no light to the inmate on the bottom….

"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’

"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.

"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…

"Medical and psychiatric treatment are also shockingly deficient."