Tag Archives: sentencing

A red state struggles with reform

screen-shot-2016-09-19-at-1-42-22-pmWhat constitutes real criminal-justice reform?

Advocates have warned for years that it’s a mistake to limit sentencing reforms to nonviolent drug offenses. Marie Gottschalk explores this in depth in a penetrating critique of the reform movement in Caught: The Prison State and the Lockdown of American Politics, where she talks about the policies aimed only at “non, non, nons” (nonviolent, nonserious, nonsexual offenses).

In fact, dividing the criminal world into violent and nonviolent is a “demonstrably false” construct to begin with, as Katherine Beckett argued in this recent American Prospect article, in part because drug offenders often have committed violence, while violent offenders are among the least likely to commit new offenses.

And yet public opinion favors reducing our over-reliance on prisons — but not for the majority of prisoners who are serving long sentences for violence and other serious offenses. Perhaps that’s because the public believes, against all evidence, that crime remains in a perpetual upward spiral (actually, and despite alarming spikes in some cities’ violent crime recently, crime of all types has fallen dramatically for the past 20-plus years).

In my latest article, written for TakePart, I look at the ups and downs of criminal-justice reform in a deep-red state, Oklahoma, and ask whether its efforts are doomed to irrelevance. The state can barely make progress toward the most minimal drug-offense reforms, much less toward reforms that might put a bigger dent in a system that practically everyone involved agrees is unaffordable, ineffective, and overly punitive.

The story is about more than just Oklahoma. It’s a look at justice reinvestment, a nonpartisan approach to reducing mass incarceration through policies aimed at achieving lower crime and lower imprisonment. Researchers in dozens of states have found savings in reducing the use of prisons, and advised plowing those savings into crime prevention programs. Conservatives from groups like Right on Crime support such efforts. For some on the left, that’s enough reason to oppose it, or at least look at it very skeptically. But, like many other red states that have gone before it, Oklahoma is trying to take these baby steps before making bolder moves. The question is whether success, as they define it, will be enough.

The timing of this assessment of Oklahoma’s fitful progress coincidentally comes as Congress admits it is too divided to take up the modest reforms — focused mainly on nonviolent drug offenses — that it has wrestled with, and watered down in efforts at compromise, for the past couple of years.

My story appears in a package of stories on criminal justice titled “Violence and Redemption,” with stories on rehabilitation programs for people who committed violent offenses (by Rebecca McCray), forgiveness and victim-offender dialog (by Jessica Pishko), and several others as part of TakePart’s “Big Issues” series, an ambitious project using longform journalism to explore … yes, big issues. This was my second story for TakePart, which is part of the documentary and film production company Participant Media. Last December I wrote about police reform, with a look at what’s happening in Minneapolis. I appreciate this publication’s dedication to telling in-depth stories about criminal justice, as part of its larger agenda promoting social awareness. What my editors and I liked about both stories is that they defied easy answers. They are, instead, about the struggle to address crime in constructive ways — and in ways that move beyond the broken systems of the past.

Just plain wrong

Over at the Open Society Foundations blog, I wrote this post about the reluctance of policymakers and judges to confront the morality of excessive prison sentences. I was provoked by a quote in this otherwise excellent story by Erik Eckholm in Friday’s Times, but I’ve been thinking about the issue for a while as I report on criminal-justice reform.

The issue: Rather than justify sentencing reform with financial arguments alone — that the reason to let people out of prison is to save money, and nothing else — we should be asking about the morality of holding people well beyond any rational justification. And we should ask that about the hardest cases, not just the sorts that dominate the discussion (nonviolent and minor drug and property crimes).

There are many other arguments against excessive sentences, namely those based on all the evidence that they simply don’t work as advertised. Those typically get second billing behind the budget argument. Then, way down the list, you find a fringe minority voicing the moral question. By my way of thinking, the other arguments merely support the ultimate argument. In other words, because these sentences don’t work and cause all sorts of unintended problems, it is all the more immoral to hold people beyond what’s absolutely necessary for safety’s sake.

Anyway, I hope you’ll read and share my OSF post and discuss it on my Facebook page or on this blog.

OSF sponsors the Soros Justice Fellowships program, which supports my work for a year on an upcoming series of stories exploring crime victims’ perspective on criminal-justice reforms.

“Compassion gap” and crime

Last month, when New York Gov. Andrew Cuomo’s proposal to provide college classes to select prison inmates provoked an outpouring of public disdain for convicted criminals, I focused my criticism on news sites that invite mindless mob reactions rather than convene a more thoughtful debate. Nick Kristof’s column yesterday reminds me that the underlying problem is the mob itself — and the mindset that turns ugly whenever anyone suggests we treat social problems with compassion.

Kristof touched off a “compassion gap” in reader comments by writing of a mom struggling to care for her disabled son. Because she is not model-skinny and because she sports tattoos, she became a target for condemnation for supposedly failing to address her own problems. The same impulse he decries — scold first, ask questions later, when we’re asked to help those in need — turns even uglier when crime, not just poverty, is the issue. Then all the moralizing about taking responsibility gets ratcheted up even louder.

Because appeals to empathy and charity fail with some people, what about pointing out self-interest? When we turn our backs on people who have committed crimes — when we decide to rely solely on punishment and incapacitation (eliminating them as a potential threat) — we incur great financial costs to house, care for, and guard them. And we practically guarantee that if they ever get out, they’ll have no realistic chance to be better people, and better-equipped to live law-abiding, productive lives.

In the context of the prison-education debate, where the letters to the editor and online comments continue to wallow in the muck, you may lament the added public expense and the inequity of providing this for criminals when good citizens have to pay for their own education. But by that logic, why should we provide any programs of any sort to inmates? The answer should be obvious: We need them to become self-sufficient, productive, and law-abiding. The alternatives — locking everyone up forever or spinning the prisons’ revolving door ever faster — are ones we cannot afford, in any sense of the word.

It’s natural to feel resentful, at times, of others’ irresponsibility, mistakes, and cruelty. When we allow those emotions to overwhelm our better nature, and all reason, then we also forfeit any claim to moral superiority.


A prosecutor evolves

Screen Shot 2014-02-24 at 3.58.27 PMTexas Monthly‘s Pamela Colloff has done it again. As I’ve obsessively documented on this site, and as ratified by greater minds than mine, she has applied her prodigious skills as a reporter and writer to powerful narratives about crime. Though her work has focused on wrongful convictions, I find her latest piece notable because it doesn’t — and because, instead, it focuses on what I find to be a more nuanced and difficult topic, the proper calculus of blame and punishment in a crime of violence when the defendant is indeed guilty. It does all that, and adds a bonus: a reporting mystery (more about that in a moment).

Colloff’s primary character is a former Texas district attorney, Tim Cole, whose unflinching tough-on-crime stance wins a life term for a teenager involved in a murder of a fellow teen. Later on, though, doubts creep in — not about the legal guilt of the defendant, Randy Wood, or the loss suffered by victim Heather Rich or her family, but about the amount of time Wood ought to serve. After Cole’s drinking costs him his marriage and job, plunging him into a suicidal depression, the lawyer begins to turn his life around. And that is when, Colloff writes, his world view starts to shift:

He began attending a twelve-step program, and there were times when he stopped drinking for months, even a year at one stretch, though he continued to falter. “I came to see how people—good people—could make terrible mistakes,” Cole said. “And how maybe they shouldn’t have to pay for them for the rest of their lives.”

Now that he no longer seeks votes by acting tough, Cole could concede that a sentence shorter than a maximum isn’t a sign of weakness if it’s the proper sentence for the circumstances. Seeing Wood as the least culpable of the three convicted in Rich’s killing, Cole joined the effort to get Wood’s sentence reduced. Thus far, that effort has been fruitless.

The emotional high point comes late in the story, when Cole and Wood meet in prison. It happened last fall, 15 years into Wood’s sentence. Remarkably, Colloff is able to paint the scene with a full dialogue, using direct quotes. I asked Colloff via Twitter how she managed that, and she declined to say on the record. “It’s going to have to remain a bit mysterious,” she wrote. The choices I can imagine: She was there (unlikely, because she could just write that). The prison taped it and provided the recording (highly unlikely, especially since there was a lawyer in the conversation). Or Cole taped it and provided it to Colloff (the probable source of her quotes). In any case, it makes for a more readable and memorable scene, one that ends inconclusively, as Wood remains in prison indefinitely.

Colloff says the story is available to non-subscribers until this Friday, February 28. Take advantage soon. Better yet, subscribe to the great Texas Monthly, one of only a few regional magazines with such a history and commitment to long-form reported narratives on crime.

The anger games

Just when it seems we’re capable of having a civil, bipartisan conversation about criminal justice reform — when everyone from Right on Crime to Texas legislators to Rand Paul decides it’s OK to ease up on the tough-on-crime talk — I’m brought back to reality.  And it’s a newspaper’s fault for the letdown.

The reminder started when New York’s governor proposed using state money to restore the sort of college-classes-in-prison program that once was common but got thrown out in the talking-tough era. In what passes these days for journalism, one of my local papers, Gannett’s Democrat & Chronicle in Rochester, posted its story on Facebook and lit the match with the not-so-profound question, “What do you think?”

The result: Payback for decades of distorted news coverage of marauding criminals and overheated, hateful rhetoric that scores cheap political points by bashing an easy target, the felons. It turns out, what “you” think looks like this:

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And this:

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And of course this:

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Etc., for hundreds more posts.

The New York proposal is, of course, fair game for a real debate. And some commenters did, in fact, ask good questions about whether this is the best way to address recidivism or to use limited resources.  Some actually cited evidence about which tactics do or don’t work. But the vast majority of comments were simply spleen-venting, spittle-flying rants.

So here’s the question: What exactly do we gain from doing this to ourselves? When journalism meant digging for facts and convening a thoughtful discussion of experts and civic-minded laymen, it wouldn’t have occurred to anyone that we should wander into the howling mob outside the door, hand it the keys to our printing press, and invite them to enlighten us with their prejudices, assumptions, resentments, and uninformed bile. Now, someone at Gannett gets to check off a box noting how much reader engagement he fostered this week (put aside how many of the torch-bearing commenters is actually a regular reader, much less a paying subscriber). It’s a business model that works for some (I’m looking at you, Fox News and MSNBC) — creating controversy to give yourself something easy and exploitative to cover as “news” — and indeed today’s followup stories featured legislative critics responding to public outrage over the prison-education proposal. But when this is what passes for journalism about a topic so critical to a peaceful, stable society, I die a little.

I singled out this newspaper on this topic only because it’s convenient. But it’s an everyday occurrence everywhere, but for places that have decided open forums are just trouble.

And it’s more than just a waste of time. It serves as a stark warning to any policymaker who dares stand in front of the mob and ask, “Is it really wise to pound every inmate with punishment and humiliation and deprivation for way too many years?” When that policymaker considers asking what the end game is — what we ought to be doing to provide for a safer, more productive society; to fix what’s broken in public safety, and people — what are the chances he’ll have the guts to engage in this sort of “debate”?

So, what do you think?

Sentencing math doesn’t add up

One of the most irksome errors in legal journalism occurs when reporters perform sentencing math in such a way that it adds up to a falsehood. Often repeating a hyped claim made in many prosecution press releases, journalists stack the maximum possible sentences — all the counts against a defendant, run cumulatively — and act as though the sum is a realistic possibility. In truth, most sentences fall somewhere in the range between minimum and maximum of the most serious count that’s proven. The rest of the sentences usually run concurrently. Then, either parole or good-time credits will likely apply, making the prisoner’s actual time served even shorter.

The latest case to feature crazy sentencing math is the federal prosecution of “Anonymous” digital activist Barrett Brown. In today’s New York Times, reporter-columnist David Carr’s lede states that Brown is “facing charges that carry a combined penalty of more than 100 years in prison” and later states baldly that he’s “facing the rest of his life in prison.” Nowhere does Carr, in an otherwise detailed and skeptical account of Brown and his case, attempt to report out the realistic exposure Brown faces.

I don’t mean to pick on Carr, whom I admire. The unchallenged, unexamined cumulative “sentence” has been repeated in Rolling Stone (in the headline), Huffington Post (“a whopping 105 years”), and two local newspapers where Brown faces trial, The Dallas Morning News and Dallas Observer (which compounds the error by intoning that after his arrest Brown was “thrown in prison for what could be the rest of his life,” ignoring the distinction between a jail holding a pretrial defendant and prison holding a convict).

I’m not just being picky. These are not mere semantics. Even though it’s impossible to predict an outcome, and sentencing guidelines rely on a host of variables, we at least should avoid the lazy shorthand that charge-happy prosecutors use to hype cases and pressure defendants. Brown’s case is important and severe. But writers can note the questionably harsh treatment of Brown without claiming he actually faces a 105-year sentence. He won’t get anything close to that.

A tale of redemption and unfairness

Screen Shot 2013-06-13 at 10.46.02 AMNow that I have surrendered and bought annual membership in The Atavist — it keeps churning out so many good stories that it no longer made sense to buy them all one-off — the first story I read is Atavist’s most recent: Stray Bullet, by journalist Gary Rivlin of the Nation Institute. It tells the story of Tony Davis, a man serving a lengthy prison sentence for murder, and the odd friendship that developed between Davis and Rivlin after Rivlin wrote about the case in his 1995 book Drive-By. But really it’s a story about one of the most vexing questions in all of criminal justice: how to set a just sentence for the taking of an innocent life.

At age 18, Davis, a crack dealer with a police record and dysfunctional and criminal upbringing, fires a pistol at a group of 13- and 14-year-olds who’d gotten crosswise with Davis’ buddies. He claims they were warning shots. One ricochet struck one of the kids in the groin and he bled to death in the lengthy wait for an ambulance. In another time and place, such a crime might qualify as manslaughter — a deadly but reckless, impulsive crime typical of stupid youth — and earned a sentence in the single digits. But, caught up in the backlash against crack-fueled street crime, Davis earns 18 to life. He’s now served 23 years and has six to go before he has another chance at parole.

Rivlin writes about his own journey from journalist to friend, and colors in the full story behind Davis’ terrible crime and dismal prison disciplinary record. The real man behind those cardboard-cutout images is not the young thug he once was. Rivlin never sugarcoats Davis’ crimes and mistakes. Thus, he earns the right to deem Davis’ latest parole-hearing outcome — denied in 2012, with his next parole eligibility in 2019 — as cruel.

Questioning if Davis’ sentence is fair (as even the arresting officer in Davis’ crime does) isn’t about being soft on crime. It’s about proportionality, fairness, and a justice system that must balance retribution and incapacitation (our prison-happy society’s chief concerns) with rehabilitation and redemption. Unless you’re willing to argue that the taking of a life no matter the circumstances earns a mandatory sentence of life or death — many do argue exactly that, but without any sense of history, context, or concern about facts — then knowing stories like Davis’ requires that we wade into messy details to figure out what’s right. Rivlin did that in a moving, frustrating, sad tale.

Seeing dark motives in a narrative

Over at the Crime & Consequences blog, Bill Otis — a consistent voice for a hard-line tough-on-crime approach — attacks this story by AP national writer Adam Geller in a way that clearly illustrates a disconnect over the proper role of the criminal justice journalist when writing about a policy debate as fraught as murder sentencing.

Geller told the story of Barbara Hernandez, who is serving life without parole for her part in a robbery-murder committed when she was 16. The AP writer uses Hernandez to illustrate the challenge facing courts nationwide over a Supreme Court ruling that barred mandatory life-without-parole sentences for juvenile defendants. How should courts revisit long-ago convictions and weigh factors that were ignored at sentencing? In a deeply reported narrative, Geller illustrates those issues by looking at Hernandez’s crime and what led up to it in her life.

That, plus Geller’s humanizing description of Hernandez’s physical appearance, is what set Otis off. But he doesn’t just dwell on what he deems unacceptably sympathetic portrayals of Hernandez’s demeanor now and the circumstances that put her in prison. No, writes Otis, what’s really troubling is that Geller’s story is evidence of a “Movement” set on brainwashing us using crafty propaganda. The goal: wholesale adoption of wimpy sentencing policies. This is all one big slippery slope, he warns: From abolition of the death penalty for juveniles, to abolition of mandatory life-without-parole, to outright abolition of LWOP, to shorter prison sentences for everyone. Before you know it, we’ll all be speaking with French or Norwegian accents.

When I look at a story like Geller’s, I see a reporter doing his job, putting a human face on a complex sentencing-policy question. It’s the human face that bothers Otis, I guess. It’s much easier to treat criminals like animals or garbage if we don’t actually look at them and think hard about just, effective punishments.

Halfway to freedom

Today marks the mathematical middle of Tim Ginocchetti’s prison term. Assuming state law doesn’t change the formula used to award good-time credits (currently it’s one-seventh of a sentence, or in Tim’s case a reduction of about two years and two months from his 15 years), and assuming Tim continues to maintain a clean record earning full credit for his behavior, and not counting an additional six-month reduction he might receive for educational programs he has taken, then I calculate today to be the halfway point between Tim’s first day in jail, August 24, 2006, after his arrest and his earliest possible release date according to prison officials: June 27, 2019. (After his release he then must serve five more years of post-release supervision.)

Tim turned 21 two days before he killed his mother. On his likely release date, he will be two months shy of age 34, having spent more than a third of his life — 4,691 days — in prison.

I didn’t argue in God’s Nobodies, and I do not believe, that Tim was treated unfairly by the court or prosecutors. In my view, his sentence is neither too lenient nor too harsh based on what the law says and how it works, which I tried to describe in detail in the book. As Tim himself has said over and over again, he is responsible for a terrible crime and must pay the price. That crime was not a deliberate murder, which was his original charge and one that carries a possible term starting at 15 years and going up to life in prison. He was convicted of manslaughter, a distinction long recognized in our culture. It’s the difference between the predator lying in wait for his victim versus the (typically) young man who loses his temper in an instant and does something terrible. We cannot condone either one, but neither do we equate them. One is clearly worse than the other. In New York, first-degree manslaughter may be punished by five to 25 years. Tim got 15, the midpoint. And now he’s at the midpoint in that sentence.

Every expert I’ve consulted says there are no figures available on median or average sentences for people convicted of manslaughter. The Bureau of Justice Statistics’ most current study of a sample combining murder and manslaughter cases (PDF) estimated the average sentence to be 20 years. That excludes murderers sentenced to life or the death penalty (estimated by BJS at about one-quarter of all cases). Based on all that — with the average skewed up by cases treated more severely under the law, and with an acknowledgement that the U.S. punishes such cases more severely than it once did, and more than other countries do — I conclude that Tim’s punishment falls right about where we’d expect on the spectrum.

Will Tim Ginocchetti pose a threat to anyone once he is released? Almost certainly not. I also believe the circumstances that put Tim where he is today — the subject of my book — were profoundly unfair not as a matter of law but in a larger sense. He’s paying a terrible price for his instantaneous reaction to problems he never provoked, to a situation he couldn’t change or escape. On those bases alone, he should be released. But our laws serve a purpose beyond isolating threats to public safety or weighing big-picture blame. In our legal tradition, we seek retribution for his crime. In fact, contrary to myth, American justice is the harshest, most prolific deliverer of retribution in the world. Whether that’s as it should be is a debate for another day. Tim committed the crime and must pay. That’s how it works.

To those who have said he got off easy, or who believe no one who takes a life under any circumstance should ever be released, I urge you to think about what it means to sit in prison for one week. Six months. A year. Five years. Or, in Tim’s likely case, 12 years, 10 months, and four days: 4,691 days.

“Popular punitiveness” and the press

Former federal judge Nancy Gertner wrote this important commentary on a theme that runs through many of the posts on this blog. She decries the sort of crime reporting that serves to ratchet up prison sentences based only on a lust for retribution. By egging on critics of judges who dare to set prison terms any less than what prosecutors demand — anything less than the maximum, that is — we feed the myth that judges and parole authorities are soft on crime. In fact, we lead the world, by orders of magnitude, in the harshness of our sentences. Violent crime has been plummeting for a long time, but images of mayhem brainwash the public into assuming the opposite. Any talk of rehabilitation — seeking to fix what’s broken in people so that when (if) they get out of prison they don’t return to crime — sounds hopelessly wimpy in the prevailing mood.

Some journalists and commentators have begun to question how we can afford to imprison every criminal for ever-longer terms, much less whether it’s fair and whether it fundamentally solves the problem. But the agenda gets set in the day-to-day reporting on individual cases, where anger makes for juicy viewing and reading.

She’s right about all this. The only solution is informed, thoughtful reporting and storytelling that’s every bit as compelling as the angry-victim stories. Journalists writing about criminal-justice policy have a job to do in educating the public and informing policy choices with a sense of proportionality and with goals beyond simple retribution. We can tell stories that debunk myths and question assumptions. And we can only hope this will seep into daily courthouse coverage, so that the unthinking, blind-rage response to crime — the mentality that no prison sentence is too long — finally stops spinning so far out of control.