Is being "Over-Convicted" any more unjust than being "Wrongfully-convicted?"

Much has been written about the “wrongfully convicted” in the past several months.  There is no question that being locked up for a crime you did not commit is a grave injustice, especially if facilitated by law-enforcement or by prosecutorial misconduct.  And while we would all like to envision our politicians as having our best interests at heart and our judiciary as wise and impartial; meting out uniform justice to all comers, the truth is that “wrongful convictions” are often facilitated (or “aided and abetted,” if you will) by an indifferent judiciary and a Congress that is more concerned about reelection than serious social issues.  Of course, the “over-convicted” or (over-sentenced) suffer from the same precipitating causes and are no less tragic, demoralizing or dehumanizing.

            Because of the sheer disparity in numbers between the two groups, the impact on society of the “over-sentenced” is a thousand-times greater.  In the past quarter-century, 1,314 Americans wrongfully incarcerated have been set free, according to the University of Michigan Law School.  On the other hand, an argument can be made that, of the 219,000 federal prisoners now serving time, almost all (or at least a majority), have been “over-sentenced.”

            It should never have come to this.  Perhaps, Congress felt that, in the 1980’s, when federal parole was abolished for the newly-convicted, and crime rates were climbing, that creating harsher sentencing guidelines was the right thing to do.  But, then, unfortunately, bureaucratic inertia took over.  The imprisoned can’t vote, and politicians only wanted their constituents to see them as “tough on crime.” Prisoner counts increased geometrically, and correctional budgets along with them.  Now, we are seeing a backlash; with taxpayers objecting to having to pay the astronomical costs of incarceration.

            It seems that drug defendants have suffered the most from over-sentencing  – often having “ghost dope” or co-conspirators’ (who they sometimes don’t even know) drugs attributed to them; their sentences often getting blown up like a Macy’s Thanksgiving Day balloon by a Judge following a well-meaning (but misguided) probation officer’s PSI recommendations.  But, even white-collar defendants have been hammered by inflated “loss” amounts calculated by “government arithmetic” and the accompanying inflated sentences for the larger (often fictitious) amounts they are held responsible for stealing.

            However, there is a cure for “over-conviction.”  It is not an easy process, and success cannot be guaranteed, but where arguments for relief can be credibly made, they should be.  Where law enforcement has not “played by the rules,” they must be “called” on it.  Make no mistake – many prosecutors believe that those who are arrested deserve to be punished – for something.  So they move forward, based on the word of “the ends justify the means” arresting agencies – when the cops may be bending the facts and the rules to get a conviction. Let’s do our part to motivate the courts, the Congress, and the public, to do the right thing by the accused, the convicted and the incarcerated -- by using all legal means available to us.  Let’s also insist that the ill, the infirm, and rehabilitated long-term prisoner be released, forthwith; and stop demanding that they keep paying a debt to society that: 1. they may no longer owe, and: 2. that a compassionate society should no longer want to collect.

            But we must bang on the door if we want anyone to open it!

Inequality in the United States Is Not Only Economic, But Also Legal

Inequality in the United States Is Not Only Economic, But Also Legal

By Derek Gilna

            “Income Inequality” is a popular topic of conversation in Washington these days, and like most pronouncements of political parties, probably only brought up for temporary political advantage.  If Washington really wanted to do something to fight inequality, they would start with a complete overhaul of the American justice system, especially on the federal level.  Too often, people have been prosecuted and convicted of charges of which they are not guilty,  based upon hearsay, coerced testimony, or secondhand,  hearsay evidence. Progress against these injustices has only come slowly, one case at a time.

            We, of course, applaud the “Smarter Sentencing Act” finally making it out of committee in the Senate, and hope that it passes the full Senate, is approved by the House, and then is signed by the President.  However, even the final passage of that law will not undo all of the damage done by Guidelines Sentencing and Mandatory Minimums. Yes, the Fair Sentencing Act helped reduce the disparity in crack cases, but the judiciary has resisted with all of its might making it truly retroactive, which has limited its impact.

            However, recently, the signals from the Executive Branch of the federal government have become more promising.  Attorney General Holder has instructed assistant U.S. attorneys to refrain from unnecessary use of gun enhancements and mandatory minimums.  The Justice Department has indicated that it will begin to consider additional clemency petitions for the most egregious circumstances.  The Director of the BOP has said that prisoners should file for compassionate release if they feel they are qualified.

            The message is clear.  Relief is available, if you only know where to look.  The U.S. government is short on cash, and we should all do our best to help them reduce costs-by reducing the number of incarcerated prisoners.  However, justice will not be given automatically, unless you demand it.  Your future depends upon it.

           

Being Number One is not Always Grounds for Bragging

U.S. Still Tops in the World-In Handing Out Life Sentences

By Derek Gilna

            The Sentencing Project has recently published a report, entitled “Life Goes on: The Historic Rise of Life Sentencing in America,” noting that one in nine prisoners in the U.S. is now serving a life sentence.  The U.S. Leads the world in number of prisoners with such sentences, all of this despite the decline in crime rates and the slight decline in prisoner populations overall.

            According to the same report, a record 160,000 prisoners are now serving life sentences, four times the number that existed in 1984, and the fastest-growing category of incarceration is life-without-parole, which has reached 49,000 nationwide.  This constitutes a 22% increase in this category since 2008. Contrast this total with that of Great Britain, who now incarcerates only 49 “lifers.”

            In many ways, the trend reflects misguided correctional decisions made since 1984, when the “War on Drugs” was launched, and clearly the “life without parole” category lends itself by definition to steadily increasing numbers of prisoners.  Mandatory sentencing statutes, political pressures to be “tough on crime,” and “three strikes” laws have all played their part.

            People who continue to support life sentences will argue that life in prison confines the “worst of the worst,” but statistics do not support this opinion.  Both state and federal statutes and sentencing guidelines have resulted in the “stacking” of non-violent felonies into life sentences, adding to the nation’s ever-increasing totals.  Guidelines based on drug quantities have resulted in many additional life sentences, especially in the federal system, resulting in a “graying” of the prison population in many institutions. Increasing numbers of prisoners grow old in institutional settings, resulting in skyrocketing expenses for prisoner medical care.

            Sentencing practices in various states are also to blame for the rising tide of “lifers.” According to the report, “Five states-California, Florida, Louisiana, Michigan, and Pennsylvania account for more than half the national lifer population, although every state except Alaska maintains a life-sentenced population.

 California leads the nation in this category, in large part because of its 1994 “three-strikes” law, is home to 25% of the nation’s life-sentenced prisoners. California is not alone in the “three strikes” practice.  Thirteen states and the federal government also subscribe to this theory.

The report also noted that the length of life sentences is growing.  In 1991 the average prisoner sentenced to life could expect to serve an average of just over 21 years; by 1997, that figure had increased to 29 years.  Many states, despite declining crime and incarceration rates, are seeing a rise in life-sentenced prisoners in the past decade.

            In New York, although the prison population has dropped almost 20% in the past decade, the number of parole ineligible lifers rose 249%.  In New Jersey, despite a 16% decline in prisoner population, the lifer population increased 232%. Michigan has also experienced a similar increase in lifers despite a falling prisoner count.

            Also driving this increase is the political benefit gained by politicians who highlight their “toughness” on crime by refusing to approve parole-eligible prisoners for release, or grant clemency even when it is warranted. Media attention on the few paroled prisoners committing new offenses also puts pressure on office-holders and decision makers to be stingy in granting lifers sentence relief or release, often citing public safety concerns.

            These concerns are misplaced, according to many experts. Studies done by The Sentencing Project have shown that individuals released from life sentences are less than one-third as likely to reoffend within three years as all other released prisoners. Also, even hardened prison administrators have noted that many “lifers” are models of good behavior in prison, as they adjust over the years to institutional life behind bars.

            The August, 2013 speech by U.S. Attorney General Eric Holder was a major development in attempting to recalibrate the nation’s crime-fighting and incarceration priorities, focusing on rehabilitation as well as incarceration alternatives.   In large part, this policy reflects the new financial priorities in Washington, where lawmakers have found that the more they spend on incarceration the less they have available for their other policy priorities.

            It also recognizes the reality that serious crime is roughly half of what it was twenty years ago.  More observers with law-enforcement backgrounds have publicly supported changes in mandatory sentencing law, increased education and retraining for released prisoners, and a more nuanced approach to criminal justice.  For such policies to be effective, they would have to include eliminating sentences of life without parole, increasing the use of executive clemency, preparing people sentenced to life for eventual release from prison, and restoring the role of parole. Such an approach would require a more reasoned and calibrated approach that would pay dividends not only financially, but also socially in a society that puts too many people in jail for excessive periods of time, with little or nothing to show for it.

Mandatory Minimums Under Attack

Mandatory Drug Sentences May be on Chopping Block in Congress

By Derek Gilna

           For years we have been advocating a change in mandatory minimum sentences because they are fundamentally unfair, especially when they are based on hearsay “evidence” produced by the U.S. Probation Department.  It’s hard to beat the house when the deck is “stacked.”  However, the Senate this past week finally took the first steps to redress the balance by voting out of committee a bill sponsored by politicians of both parties cutting mandatory minimums in half and providing a possible path to retroactive relief.

            Make no mistake, much as we saw with the crack law, the “devil will be in the details,” and Assistant U.S. Attorneys in every jurisdiction will be fighting their own rear-guard action to limit the effectiveness of this measure. The Prison Guards Union will object, saying that it will cost jobs.  The private prison industry will be lobbying the recipients of their campaign contributions in Washington to block full implementation.  The bill still has to pass the full Senate, win approval from the U.S. House of Representatives, and be signed by the President before it goes into effect.

There will be no automatic approval of applications for relief. Much as happened with the Fair Sentencing Act, you will get one shot at relief, and it is in your best interests to make it a good one.

The one factor that gives us reason for optimism is what we have been saying for months-that the U.S. is short on cash, and funding the corrections industry is on few politician’s wish list.  The sponsors may or may not feel strongly about prisoner relief, and are pursuing their own agenda: some want to limit the reach of government, and others want the money saved on prison operations to go into new social programs.  We say to all of them, what has taken you so long to get this far.