Liberty weeps for our America.

I don't know how many people out there can read this and not cry. I couldn't get through the whole thing with a dry eye, myself, thinking of all those people's folks and kids left to slowly die inside. Why is it so hard for us to see what the world can from thousands of miles away? Justice must grieve with every new prison we build, and God must shudder every time a Bible is raised to swear in a new judge, jury, or legislature these days...

--------------------------From the Economist------------------

Rough justice in America

Too many laws, too many prisoners

Never in the civilised world have so many been locked up for so little

The Economist

Jul 22nd 2010 | Spring, Texas

THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.

Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”

Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.

He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates.

A long love affair with lock and key

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

Some criminals belong behind bars. When a habitual rapist is locked up, the streets are safer. But the same is not necessarily true of petty drug-dealers, whose incarceration creates a vacancy for someone else to fill, argues Alfred Blumstein of Carnegie Mellon University. The number of drug offenders in federal and state lock-ups has increased 13-fold since 1980. Some are scary thugs; many are not.

Michelle Collette of Hanover, Massachusetts, sold Percocet, a prescription painkiller. “I was planning to do it just once,” she says, “but the money was so easy. And I thought: it’s not heroin.” Then she became addicted to her own wares. She was unhappy with her boyfriend, she explains, but did not want to split up with him, because she did not want their child to grow up fatherless, as she had. So she popped pills to numb the misery. Before long, she was taking 20-30 a day.

When Ms Collette and her boyfriend, who also sold drugs, were arrested in a dawn raid, the police found 607 pills and $901 in cash. The boyfriend fought the charges and got 15 years in prison. In a plea bargain Ms Collette was sentenced to seven years, of which she served six.

“I don’t think this is fair,” said the judge. “I don’t think this is what our laws are meant to do. It’s going to cost upwards of $50,000 a year to have you in state prison. Had I the authority, I would send you to jail for no more than one year…and a [treatment] programme after that.” But mandatory sentencing laws gave him no choice.

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ½-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

Ms Collette underwent drug treatment before being locked up, and is now clean. But in prison she found she was pregnant. After going through labour shackled to a hospital bed, she was allowed only 48 hours to bond with her newborn son. She was released in March, found a job in a shop, and is hoping that her son will get used to having her around.

Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.

Watching hairs go white, and lifetimes ebb away

Many Americans assume that white-collar criminals get off lightly, but many do not. Granted, they may be hard to catch and can often afford good lawyers. But federal prosecutors can file many charges for what is essentially one offence. For example, they can count each e-mail sent by a white-collar criminal in the course of his criminal activity as a separate case of wire fraud, each of which carries a maximum sentence of 20 years. The decades soon add up. Sentences depend partly on the size of the loss and the number of people affected, so if you work for a big, publicly traded company, you break a rule and the share-price drops, watch out.

Eternal punishment

Jim Felman, a defence lawyer in Tampa, Florida, says America is conducting “an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone”. One of Mr Felman’s clients, a fraudster called Sholam Weiss, was sentenced to 845 years. “I got it reduced to 835,” sighs Mr Felman. Faced with such penalties, he says, the incentive to co-operate, which means to say things that are helpful to the prosecution, is overwhelming. And this, he believes, “warps the truth-seeking function” of justice.

Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.

Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.)

The “honest services” statute, if taken seriously, “would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” fumes Antonin Scalia, a Supreme Court justice. The Supreme Court ruled recently that the statute was so vague as to be unconstitutional. It did not strike it down completely, but said it should be applied only in cases involving bribery or kickbacks. The challenge was brought by Enron’s former boss, Jeff Skilling, who will not go free despite his victory, and Conrad Black, a media magnate released this week on bail pending an appeal, who may.

There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.

“The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.”

“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.

Society wants retribution

Such cases account for only a tiny share of the Americans behind bars, but they still matter. When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring. Ms Thompson, for example, was prosecuted just before an election, at a time when allegations of public corruption in Wisconsin were in the news. Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.

Prison deters? Not much, not the worst

Some people argue that the system works: that crime has fallen in the past two decades because the bad guys are either in prison or scared of being sent there. Caged thugs cannot break into your home. Bernie Madoff’s 150-year sentence for running a Ponzi scam should deter imitators. And indeed the crime rate continues to drop, despite the recession, as Michael Rushford of the Criminal Justice Legal Foundation, an advocacy group, points out. This, he says, is because habitual criminals face serious consequences. Some research supports him: after raking through decades of historical data, John Donohue of Yale Law School estimates that a 10% increase in imprisonment brings a 2% reduction in crime.

Others disagree. Using more recent data, Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. A recent study found that, over the past 13 years, the proportion of new prisoners in Florida who had committed violent crimes fell by 28%, whereas those inside for “other” crimes shot up by 189%. These “other” crimes were non-violent ones involving neither drugs nor theft, such as driving with a suspended licence.

And now the reckoning, in dollars

Crime is a young man’s game. Muggers over 30 are rare. Ex-cons who go straight for a few years generally stay that way: a study of 88,000 criminals by Mr Blumstein found that if someone was arrested for aggravated assault at the age of 18 but then managed to stay out of trouble until the age of 22, the risk of his offending was no greater than that for the general population. Yet America’s prisons are crammed with old folk. Nearly 200,000 prisoners are over 50. Most would pose little threat if released. And since people age faster in prison than outside, their medical costs are vast. Human Rights Watch, a lobby-group, talks of “nursing homes with razor wire”.

Jail is expensive. Spending per prisoner ranges from $18,000 a year in Mississippi to about $50,000 in California, where the cost per pupil is but a seventh of that. “[W]e are well past the point of diminishing returns,” says a report by the Pew Center on the States. In Washington state, for example, each dollar invested in new prison places in 1980 averted more than nine dollars of criminal harm (using a somewhat arbitrary scale to assign a value to not being beaten up). By 2001, as the emphasis shifted from violent criminals to drug-dealers and thieves, the cost-benefit ratio reversed. Each new dollar spent on prisons averted only 37 cents’ worth of harm.

Since the recession threw their budgets into turmoil, many states have decided to imprison fewer people, largely to save money. Mississippi has reduced the proportion of their sentences that non-violent offenders are required to serve from 85% to 25%. Texas is making greater use of non-custodial penalties. New York has repealed most mandatory minimum terms for drug offences. In all, the number of prisoners in state lock-ups fell by 0.3% in 2009, the first fall since 1972. But the total number of Americans behind bars still rose slightly, because the number of federal prisoners climbed by 3.4%.

A less punitive system could work better, argues Mark Kleiman of the University of California, Los Angeles. Swift and certain penalties deter more than harsh ones. Money spent on prisons cannot be spent on more cost-effective methods of crime-prevention, such as better policing, drug treatment or probation. The pain that punishment inflicts on criminals themselves, on their families and on their communities should also be taken into account.

“Just by making effective use of things we already know how to do, we could reasonably expect to have half as much crime and half as many people behind bars ten years from now,” says Mr Kleiman. “There are a thousand excuses for failing to make that effort, but not one good reason.”

Fischer v Lynch: AZ House Committee on Sentencing

I had a family emergency on the morning of this meeting and was unable to attend to give my own testimony, which I'll mail to them and post as soon as I have time (if I still have time).

The administrative contact person for the committee appears to be his assistant, Maureen WIlliams, at mwilliams@azleg.gov or 602-926-3695 - I'd suggest sending any additional remarks you have for the committee to her. Please do so, if you have anything constructive to add at all - but read the whole set of meeting minutes at the Legs website first - we need to respond directly to Fischer's report; Mona Lynch did a lot towards that end.
This comes to us from Camille Tilley, by the way - she's on top of all of this better than I am most days.

--------------------------

HOUSE STUDY COMMITTEE ON SENTENCING

Minutes of Meeting

Friday, May 14, 2010

House Hearing Room 5 -- 10:00 a.m.

Chairman Ash called the meeting to order at 10:05 a.m. and attendance was noted by the secretary.

Members Present

Representative Goodale Representative Ash, Chairman

Representative Hendrix

Members Absent

Representative Konopnicki (excused) Representative Tovar (excused)

Representative Sinema (excused)

Opening Remarks

Chairman Ash remarked that the state’s financial situation has compelled legislators to re-evaluate state government and this seems like a good opportunity to review the state’s sentencing structure.  There have been 30 years for evaluation since the Sentencing Code was reenacted in 1978; there have been some good results, but some things need to be looked at in light of technological advances and other methods of incarceration, sentencing and rehabilitation.   

Mrs. Goodale welcomed everyone and said she is excited about the opportunity to look at new research and what has been working in other states.  She served as a probation officer in
Mohave County for 33 years where she interacted with many people in the criminal justice system from the judiciary to the prisons.  She believes it will be possible to develop a better product that will serve everyone while preserving public safety, which is first and foremost, and fiscally watching taxpayer dollars.

Mr. Hendrix stated that he appreciates Chairman Ash taking a lead on this issue and he looks forward to being involved.

Testimony on Sentencing

Representative Jerry Madden, Texas House of Representatives; Vice-Chairman, House Corrections Committee; Member, House Judiciary and Civil Jurisprudence Committee, via teleconference, stated that Texas has been held up as the leading example of what is now called justice reinvestment.  He said he had no experience in the criminal justice system until 2005 when he was appointed Chairman of the Corrections Committee by the Speaker of the Texas House of Representatives who gave him the directive not to build new prisons because they cost too much.  When the Texas Legislature entered the 2007 Session he was informed that the prison population would increase by 17,000 by 2012.  It costs about $42 per day to house each prisoner and Texas had over 150,000 prisoners.

Representative Madden related that he worked with a Senator who is knowledgeable about the prisons to make sure the system is cost-effective and things are done the right way.  The probation system was reviewed to determine how it is working.  Most prisoners were not directly sentenced, but violated probation, and 13,000 were technical violations, so to lower those numbers, it was necessary to determine how to break the cycle of recidivism.  The best and cheapest place to do that is when people are young so they never get into the system; the second place is in the school system; the third place is probation; the fourth place is in the prisons by providing the right programs; and the last place is when prisoners are on parole and back in the community.

He said in reviewing who is in prison, it was determined that many have drug or mental health problems, many are school dropouts or low performers and many have a combination of those issues.  The three types of prisoners are the really bad individuals that if let out of prison return immediately for which it is a waste to spend money on, those who will never return to prison for which the only item he would consider spending money on is education so they become better taxpayers and the majority that he calls swingers who may or may not return depending on what programs and treatment are provided and their drug habits or alcoholic problems.  The swingers are the prisoners that were concentrated on in Texas, and a critical item in doing that is good risk assessment. 

Representative Madden noted that in Texas money was added for treatment of probationers with mental health problems and support was provided to the Nurse-Family Partnership at a cost of $8 million to break the cycle at a young age.  To break the cycle in schools, some things in school districts were changed such as no longer allowing violations of the code of conduct to be a misdemeanor, reviewing gang and bullying activities, along with intervention and support for juvenile probation.  Much time and effort was spent to make sure there were enough probation workers with proper caseloads, as well as intermediate sanction facilities, substance abuse facilities and specialty courts were expanded to give judges more options. 

He said that in prison the therapeutic treatment program for drug addicted individuals was expanded and a program was put in place for alcoholics.

Representative Madden stated that for parole additional substance abuse treatment beds and intermediate sanction facilities were provided. The parole rate was reviewed and the Parole Board was asked to review the guidelines for release of the lowest-risk prisoners; Texas had about a 26 percent parole rate that was raised 3 to 4 percent without impacting public safety, which is the number one priority.  He added that there are wonderful think tanks that can develop ideas.  

Representative Madden advised of the successes achieved in Texas:

• The projected cost of between $1.5 billion to $2 billion to build prisons and $40 million to run each prison per year was not incurred, but about $240 million was used for the additional programs. 
• To date, the prison population has been reduced by about 2,500 prisoners. 
• It is difficult to measure success for recidivism because there is a three-year measurement period, but some intermediate tracking can be done.  The parole revocation rate dropped by 29 percent the first year and another 3 percent in the second year, and there were fewer people in the juvenile and adult probation systems. 
• Crime rates and violent crime rates are down.
• The state is having trouble filling the additional 3,200 specialty beds for drug abusers because the specialty courts were increased and are keeping people out of the facilities and within the community, which means crime victims are being paid, more child support is being paid and the taxpayer burden is lessened. 
• The revised forecast indicates there is no need to build new prison beds, at least in the next three to five years.

He suggested for the short term that Arizona concentrate on probation, which is where a quicker savings can be realized, dealing with and working on progressive sanctions, looking at specialized courts to help keep people in local areas, and parole rates to see if low-risk prisoners can be paroled without endangering public safety.   

In response to questions, he indicated that money will have to be invested in all of those areas, except possibly parole.  Additional funding was not provided for ankle bracelets in Texas and only a few minor changes were made to the definition of any crime.  In reviewing ankle bracelets, he found that some money can be saved with certain people; ankle bracelets are a definite incentive for many not to go out drinking, for example.  He said sentencing reform was not addressed in Texas.

Chairman Ash asked if Texas provided for early release of some prisoners. 
Representative Madden replied that there was not an early release program specifically, but people were eligible for parole review and the Parole Board was asked to look at the parole rates.  A risk analysis was already set up by the Legislature as a guideline for parole, which was not changed, but by putting programs in place, providing intermediate sanction facilities and additional caseload funding, parole departments can watch parolees better within the community.  Some people will probably not endanger public safety while on parole, which otherwise might have been put aside for another year or two.

Dana Hlavac, Deputy County Manager, Mohave County Criminal Justice Services, addressed the Committee about his perception of issues involving the sentencing laws of Arizona and made
13 specific recommendations (Attachment 1).

Dr. Daryl R. Fischer, Author “Prisonersin Arizona, A Profile of the Inmate Population [March 2010], related that he is the former Research Manager for the Arizona Department of Corrections (ADC).  The report he authored was commissioned by the Arizona Prosecuting Attorneys’ Advisory Council (APAAC) and provides the most in-depth statistical profile of the Arizona prison population ever attempted.  As of September 30, 2009, ADC housed 40,514 inmates, including 40,431 sentenced for crimes committed in Arizona.  The purpose of the study was to help in the debate concerning alternatives to incarceration and early release of state prisoners as a budget-cutting measure.  Since non-violent first offenders are usually the first group to be considered for some type of early release, the thrust of the study was to determine how many inmates fell into this category.  It was also possible to develop a broad array of statistics detailing the present and past criminal activities of Arizona prisoners. 

Dr. Fischer reviewed statistics from the report and noted that the fact that 94 percent of inmates are violent or repeat offenders runs counter to perceptions of some outside observers who stated publicly that as much as half of the prison population consists of non-violent first offenders, the kind normally targeted for some type of early release.  He said the criminal justice system is working fairly well.  There are not a large number of non-violent first offenders in custody and those that are in prison are there for definite reasons. 

He stated that the conclusion of the analysis is that the state appears to be getting its money’s worth for the current $1 billion annual investment in the prison system.  A previous study conducted while he was with ADC showed that recidivism rates were reduced by 25 percent for inmates who actively participated in rehabilitation programs prior to release.  The greatest reductions in recidivism were recorded by inmates who served 10 years or more.  Inmates need to be prepared to successfully return to the community, and when adequately funded, ADC does a good job of making sure that happens.

Dr. Fischer conveyed that as far as the overall picture of crime, the incarceration rate in ADC increased by 18.3 percent since 1995; the crime rate dropped by 42 percent since 1995 and reached the lowest level on record since 1966.  Violent crimes are at the lowest level since 1971, which he believes is mostly due to implementation of Truth-in-Sentencing in 1994 and the dedicated efforts of police, prosecutors, prison officials, etc., to keep dangerous felons behind bars.  Prison population growth in Arizona appears to have leveled off, and according to the Phoenix Police Department, violent property and drug crime in the city dropped by 24 percent over the last two years, which bodes well as far as future prison population growth.  He added that the entire report is available at www.apaac.state.az.us.

When asked if crime rates have dropped nationally, Dr. Fischer responded affirmatively and said it correlates with the fact that many states adopted some form of Truth-in-Sentencing, which he believes serves as a deterrent to crime to some extent.  There is no proof that incarceration reduces crime, but while an active criminal is locked up, that person is not committing crimes.

Chairman Ash noted that only 5.8 percent of the ADC prison population are non-violent first offenders, but just 2.8 percent of those might be considered for early release.  Dr. Fischer responded affirmatively, noting that there may be a question of why that lowest group is even in prison.  He mentioned that although a high percentage of the prison population consists of repeat offenders who have high recidivism rates, that is not the case for all inmates.  Many older inmates have lower recidivism rates, which does include repeat offenders.  The older inmate population could be targeted for early release, but unfortunately, many are convicted of more serious offenses such as murder and child molestation.  He recommended consideration of alternatives for people with sentences of one year and under, many of which are convicted of less serious crimes and have no history of violence.  Many have priors, but if those are not too serious, it may be appropriate to divert those prisoners to the counties to ease fiscal pressures on the state.

When asked about Representative Madden’s description of the three types of inmates,
Dr. Fischer replied that he developed a risk assessment instrument for ADC that sorts offenders into high, medium and low-risk groups.  Low-risk inmates will succeed no matter what is done for them; high-risk inmates have recidivism rates that seem to be relatively insensitive to much intervention; and the medium-risk (swing) group can go either way, which is where he believes the majority of resources in the prison system should be diverted to try to rehabilitate. 

Robert Hirsch, Pima County Public Defender, reviewed a handout relating to the way drug and alcohol offenders are handled in Arizona (Attachment 2).  He questioned if it is the right thing to do and if money should be spent to incarcerate people for small quantities of drugs since most are addicts who cannot help themselves.  He submitted that it is best not to worry about priors, but to worry about treatment to get people off drugs and alcohol and out of the prisons.  He endorsed New York’s Drug Treatment Alternative to Prison (DTAP) program and offered the following strategies for efficient crime control:

·     Develop sentencing guidelines in non-violent offenses that enable judges to make treatment and community confinement decisions based on evidence-based practices.

·         Implement cost-effective and workable programs for drug and alcohol offenders in lieu of prison. 

He added that Pima County needs money allocated for community treatment to take care of these people and make some changes.

Derek Rapier, Greenlee County Attorney; Chairman, Arizona Prosecuting Attorneys’ Advisory Council (APAAC), advised that APAAC commissioned the study by Dr. Fischer because of the financial problems of the state and the fact that the criminal justice system is not budget protected by referendum or otherwise; it has been protected throughout the years by a notion that the first duty of government is to keep the public safe.  Additionally, there has long been a notion that prisons are filled with first-time non-violent, mostly drug user offenders, which is not accurate. 

He said the drug problem in Greenlee County usually involves methamphetamine and/or marijuana, which has been attacked in a multidisciplinary fashion by providing more counseling in jails and long-term treatment, but there has to be some “teeth” in that if recovery is not taken seriously, there will be consequences because people do not accept things such as property crimes and murders.  He said he would love to have a panoply of options available, but he is not willing to suggest that because the mental health system or substance abuse treatment are funded, sentencing should be changed and these people should be released. 

Mr. Rapier contended that the statistics in Dr. Fischer’s study show that the right people are in prison, i.e., repeat and violent offenders (94 percent).  He opined that there is great danger in making changes in Arizona without the investment in alternative systems that Representative Madden talked about, which the state has not been willing to fund.  He indicated that anecdotal situations provide a snapshot and not a true picture of the overall problem, which is one of the values of Dr. Fischer’s study.  The prosecuting community does not suggest that simply throwing people in prison is the one factor in reducing the crime rate, but it is not something that can be ignored.  There have been reductions in crime rates, not only in Arizona, but across the country, particularly in states where mandatory sentencing has taken place.  Truth-in-Sentencing has resulted in a finite system where people who are sentenced to ten years know they will serve eight-and-a-half years.  There was also a reduction in overall sentence prison exposure that some may argue was not enough or in certain crime areas was not sufficient, but an attempt was made to address that, and there is honesty in the system now that was not present before. 

Mr. Rapier submitted that if a policy is pursued not to incarcerate child pornography defendants, children in Arizona will be at increased risk; it is disingenuous to say there is no link between child pornography and child sex crimes.  He cannot explain or quantify that link, but he is confident in saying that reducing that crime will result in increased risk to children.

Chairman Ash mentioned a newspaper article about a man who was sentenced to 14 years in his wife’s slaying, yet someone with no prior criminal history who looked at 11 pornographic pictures was sentenced to 100 years.  Mr. Rapier opined that judges should be given more discretion to handle those types of cases concurrently or consecutively.  He added that he is not opposed to looking at alternative solutions, but pointed out that someone who is released from prison and on the street likely poses some risk.

Jeremy Mussman, Deputy Director, Maricopa County Public Defender’s Office, expressed concern that the report by Dr. Fischer is being portrayed as a roadblock to any changes in the criminal justice system.  He noted that during an interview, Dr. Fischer said “I did this report for the prosecutors, but if I was doing it on my own, I would take a more balanced approach,” and Dr. Fischer repeatedly explained that the report does not address risk to the community. 

Mr. Mussman opined that the report creates categories that are quantified based upon macro information that is not tied to specific individuals who are in custody, and at times the information is based on anecdotal information that is not part of the charge for which the defendant was actually convicted.  It does not address the specific risk analysis of each individual, and Dr. Fischer specifically referenced that he has a risk analysis tool that ascertains whether or not individual defendants are a high risk to the community. 

He continued that APAAC provided him with the database to Dr. Fischer’s report where he found information showing that anyone who has a G (general risk) or V (violent risk) rating of 3 or lower is low-risk.  Based upon that data, there are 6,641 individuals currently in custody that are at the lowest end of the risk scale (Attachment 3).  At $56 per day that calculates to a savings of $375,000 per day and over $136 million per year for that group alone.  By looking at anyone who is G3 or V3, the calculation is upwards of $500,000 per year.  He submitted that this data needs to be cross-referenced to figure out the following:

·         How much money can be saved immediately by early release and which individuals can be released.

·         What inmates do in ADC to have such a low-risk factor.

·         What can be done to encourage inmates to take advantage of rehabilitation programs. 

·         How these people ended up in ADC in the first place, especially G1 and V1 individuals who are low-risk and self-correcting, but after exposure to the ADC environment may leave prison and be a danger to the community. 

Mr. Mussman asked that a small stakeholder group be created to analyze this data and develop recommendations.

Senator John Huppenthal, related that he chaired the Judiciary Committee for two years and read research to use best practices to guide policies.  As he encountered groups that are intent on reducing the prison population, it struck him that it is a noble objective, but it needs to be a secondary objective.  In New York State, the objective was to reduce crime, and a reduced prison population was a byproduct.  He suggested an experiment in Arizona with accountability measures at the local level as was done in New York City by Chief William Bratton, which resulted in a huge reduction in crime and the prison population.  Another element would be to increase the circulation rate of the prison population with guidance from researchers.  Also, Texas has more differentiation in prison populations, i.e., special prisons for extremely low-risk inmates, to reduce the cost of operating prisons, which should be a key piece. 

He added that he worked with the Pew Foundation on legislation to implement an incentive system for people on probation whereby the length of probation is reduced using a specific formula if an individual is drug-free and meets community service and restitution requirements.  The results appear to be very good so far; an all-time record of successful completion of probation was reached and revocation rates to prison decreased by 12 percent.  He said perhaps this type of incentive can also be used with prison populations. 

Mona Lynch, Associate Professor, Criminology, Law and Society, University of California Irvine; Author “Sunbelt Justice: Arizona and the Transformation of American Punishment” [Stanford University Press 2009], reviewed Arizona’s history in relation to the prison population and sentencing reform from the late 1970s to 2010 when Arizona is now faced with an unprecedented budget shortfall and immense pressure to make fixes to the criminal justice system.  She made the following statements about Dr. Fischer’s report:

·         It does not speak to creating an efficient and effective criminal justice policy; it is as if prison or nothing is the underlying assumption.  There is no discussion of other interventions that may be more cost-effective and more effective in general. 

·         There is a theory that incarceration works when much research suggests that is wrong, particularly for drug offenders. It does not consider the unintended negative consequences of imprisonment for the people in prison, as well as families and communities.    

·         It states that the prison population increase has contributed to crime decline, but crime has gone down everywhere, which many people believe is an aging factor, i.e., the crime-prone group is smaller now than in the 1980s. 

·         There are inferences about causality with no data to measure causality. 

·         The suggestion that longer sentences are more rehabilitative is problematic because an older population is leaving prison that is now in their less crime-prone years.  Similarly, offenses that may result in long sentences typically have low recidivism rates; they may be very serious but do not tend to be high repeat types of crimes.   

·         It does not consider alternative explanations for recidivism, including the failure of incarceration relative to other potential interventions. 

Ms. Lynch endorsed the idea of creating a bipartisan stakeholder group to categorize populations to be let out as a short-term response, but opined that some long-term solutions are also necessary, which means more money directed toward programming in prisons rather than simply warehousing.  Graduated release is considered an important way to get people back into communities through re-entry facilities, etc., and those types of low-cost releases can be done if sentences are shortened.  The difficulty will be determining the parameters of populations to be left in prison and those that can be better served in other types of facilities. 

She said New York, Kansas, New Jersey and Michigan all used a combination of sentence reform, alternatives to prison programs, early release programs, graduated release programs, investment in specialized courts and specialized treatment programs, etc.  A report by
Judith Greene tells how four states greatly reduced the prison population.  Ms. Lynch made the following suggestions:

• Decide which offenders need to be in state custody as opposed to alternative local sanctions, calculate the optimal size to work with for long-term planning, make sure offenses that might be better addressed at the local level are legally eligible for local sanctions and consider whether the marginal cost of some lengthy sentences outweighs the marginal gains financially and on public safety grounds.
• Build upon successes such as the incentive program mentioned by Senator Huppenthal.
• Incentivize counties to manage offenders locally, develop effective crime prevention and/or early intervention programs and discourage sending an inordinate number of offenders to the state for incarceration.
• For offenders in prison, adequately fund custodial and after-care interventions that have been demonstrated to reduce recidivism.
• Consider using “carrots” and “sticks” to encourage local collaboration in these kinds of efforts. 

Chairman Ash pointed out that Ms. Lynch is from California and paid her own way to testify. 

David Gallagher, Executive Director, Arizona Addiction Treatment Programs, Incorporated, stated that he represents an out-patient clinic for licensed behavioral health, substance abuse and Driving Under the Influence (DUI) diversion and out-patient treatment.  The company contracts with the Administrative Office of the Courts and most referrals are from Maricopa County Probation.  He talked about the prevalence of alcohol and drug abuse among young people and adults.  He said some progress and changes have been made in Juvenile Court, at least in Maricopa County, through a program that Senator Thayer Verschoor came up with that was implemented in October 2009.  Also, people from the Adolescent Substance Abuse Program are developing good ideas about diversion, prevention and educating probation officers and parents.    

Public Testimony

Sandra Guziejka, representing self, Gilbert, testified that she has a son in ADC who is a non-violent offender and questioned why he cannot be released on electronic monitoring, especially since she and her husband are willing to be responsible for him on house arrest until his sentence is completed.  When Chairman Ash noted that Truth-in-Sentencing requires inmates to complete 85 percent of their sentence, Mrs. Guziejka responded that her son has done that.

Chairman Ash stated that her son should be eligible for release on community supervision and noted that posting of a bond is used in many areas of the economy to ensure performance, which he believes some families would be willing to do.  Mrs. Guziejka clarified that her son has a disability and is not able to produce urine samples in front of anyone, so he was allowed to do dry cell testing.  All of a sudden, he was not allowed to do that, so he filed a lawsuit for violation of his civil rights.  He never tested positive for anything and he is asking for alternative methods of testing, but he is losing some good time because of it and his contact visits have been reduced.

Chairman Ash noted that he cannot get into specific issues, but as a policy measure, it is necessary to explore the options for releasing people early who are not a threat, particularly if the inmate has family or community support.  He added that he will look into the situation.

Raymond Beckmann, representing self, Chandler, said he has an incarcerated stepson who is serving a five-year plea bargain sentence for merely possessing child pornography on his tainted computer.  In 2001, over 10 different people and minors had access to his open passwords and unsupervised computer in his apartment.  Parental controls and blocks did not exist at that time, and only today is sexting by preteens and cyberbullying being defined, which were definite behaviors that were perpetrated on his son’s computer.  False accusations, ignorance, poor lawyers and prosecutorial misconduct are reasons for this miscarriage of justice.  His son will be labeled a lifetime sex offender and will be severely restricted by those rules as long as he lives on the outside, which are almost impossible for any human being to comply with, and if he violates those rules, he will be resentenced for the same prison time he originally served.   

He asked the Members to eliminate the Adam Walsh Act and not adopt a new version, submitting that it has been proven not to work and it does not protect children in Arizona.  He indicated that there is a need to reform Arizona’s unjust existing sex offender and child pornography laws, which are overly broad and flawed.  He raised the following points:  

• Why has the required time to serve been changed from 65 to 85 percent?
• There is no consideration in the laws for early release for sex offenders, especially the non-contact, non-dangerous, non-violent, no possession of child pornography types. 
• It is against the U.S. Constitution and it should be against state law to create and punish a class of people for the rest of their lives. 
• Why is computer not included in the classification of A.R.S. Section 13-3553 since sexual exploitation of a minor is not clearly defined; it is a computer crime and should be properly identified as such. 
• Grouping all sex crimes together is too much.
• There is great disparity of punishment for child pornography possession countrywide.  California classifies child pornography as a misdemeanor and New Mexico does not even apply possession of child pornography.  All other states apply minimal sentence times.

Mr. Beckmann concluded by stating that he and his wife cannot believe their son is now a convict, suffering in prison, surviving amongst real criminals because he owned a computer that was tainted with several illegal images that he was charged with merely possessing.  He is not a criminal, child pornographer, pedophile, predator or a sex offender, yet Arizona brands him for the rest of his life.  Prosecutors are out for convictions and not necessarily the truth.  Defense attorneys are greedy and his son was forced to enter a plea of five years because the mental and financial resources of the family were depleted.  He asked for early release of those who are not a threat to society to give them a chance to live again.

Jeanne Thompson, representing self, Chandler, stated that she is the mother of an imprisoned sex offender and an activist.  She stated that she is happy that Tonya Craft, who was facing 400 years in prison on 22 counts of child molestation, was acquitted on May 12, 2010, even though she is not claiming victory because of the scars left in the aftermath.  In comparison, her son was advised not to go to trial because the risk was too great; if a computer expert proves child pornography images exist on someone’s computer, that person is sentenced to 10 years per image.  Also, after indebting the family for $70,000, it was not possible to come up with another $20,000 to $50,000 to take the case to trial.  Additionally, their son was suffering in Sheriff Joe Arpaio’s inhumane jail and could not take any more abuse.  The family endured five nightmare years fighting for her son and another five years while he has been in prison, yet their story will go on for the rest of their lives unless changes are made to the horrendous sex offender law.  She asked the Members not to sign up for the Adam Walsh Act because adults, convicts and ex-convicts need to be protected and afforded constitutional rights. 

Chairman Ash said this is an area of law that needs to be looked at that he has discussed with prosecutors and defense attorneys; there are many sad cases.

Tom Tilley, Free Courtney Bisbee Coalition, Scottsdale, said his daughter is in prison.  Charges were pressed for 75 years and she was offered 44 days time served.  He told her he would never admit to something he did not do and now he is paying the price for saying that because she had a chance to get out of prison.  Also, she has to be registered as a sex offender, so there is something very wrong.

Camille Tilley, Free Courtney Bisbee Coalition, Scottsdale, stated that their daughter,
Courtney Bisbee, an honors graduate from the University of Southern Florida, came to Arizona with her husband, got a divorce and took a job at the Horizon High School in Paradise Valley.  She has been in Perryville Prison for four-and-a-half years.  She was arrested by a SWAT team at her home in Scottsdale in front of her four-year-old daughter because of a false allegation by a teenager.  She said her daughter needs to be reunited with her daughter.  She provided CDs, Freedom March for the Wrongfully Convicted [June 27, 2009] (Attachment 4) and Lawyers Anti-Andrew Thomas Protest [December 21, 2009] (Attachment 5).

Chairman Ash said there are serious problems; no system is perfect, but improvements need to be made.

Without objection, the meeting adjourned at 1:23 p.m.

                                                                        _______________________________

                                                                        Linda Taylor, Committee Secretary

                                                                        May 27, 2010

                                                                                                                                   

(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)

---------- DOCUMENT FOOTER ---------

HOUSE SELECT COMMITTEE

ON SENTENCING

May 14, 2010

Please Read it.

Letter to Legislators: ACCJR

The note below was sent to me on a list-serve by the Arizona Coalition for Criminal Justice Reform - their links are at the bottom of the post - good people to connect with if you want to work on sentencing reform and other criminal justice legislation. They're also nationally involved.

I want to post this because it's good to bring Sunbelt Justice to legislators' attention as many ways as possible - they need to brush up on their AZ Department of Corrections history, and this offers a couple of useful other links.


Thanks, Camille.

--------

To our Arizona Legislators:

Prisons: Sunbelt Justice: Arizona and the Transformation of American Punishment - Mona Lynch and Torture in American Prisons including Arizona.

I urge you to take the time to watch the video and read the book about important information that impacts all of those living or visiting Arizona and determining whether to start businesses in the state.

This is a must-read for anyone concerned Criminal Justice and Corrections, the cost to society and the taxpayers. It is unsustainable. It's time to downsize incarceration, restore rehabilitation, vocational training and education. "Tough on crime" needs to be replaced with "smart on crime" -- starting with eliminating mandatory minimum sentencing which is the "hammer" used by the prosecutors to get their convictions and overload the court system, jails, prisons and detention centers. We say NO to Private Prisons and the Celling of Arizona. There are solutions. The state has NO money. It's time to release inmates -- the innocent and wrongfully convicted, non-violent, first offenders who are no harm to society, elderly and chronically ill and dying.

"Sunbelt Justice: Arizona and the Transformation of American Punishment" - Mona Lynch

and

Video: Torture in American prisons - a British documentary
Arizona Maricopa County jail featured and detainee deaths of Norberg, Crenshaw and more.

---------------------------

Camille Tilley
480-375-0093
Arizona Coalition for Criminal Justice Reform
NCCJR National Coalition for Criminal Justice Reform
http://reformingjustice.com

http://criminaljustice.change.org

Arizona Director - Freedom March for the Wrongfully Convicted -2009
http://www.freedommarchusa.org/default.htm

PETITION: Mandatory Minimum Sentencing Scheme is Morally Unacceptable
http://www.change.org/actions/view/mandatory_minimum_sentencing_scheme_is_morally_unacceptable

Sunbelt Justice, Prisoners' families, and Grace.

(The email below was sent individually to members of the AZ State Senate Friday and Saturday, and to the rest of the legislature today from me for the Friends of Marcia Powell. If I left anything out, folks, chime in now - at least contact your own legislators before Monday is through.)

---------------------

Friday, November 20, 2009

Dear Arizona State Legislators;

This to let you know that there are more than a few voices out here in support of early release for low-risk prisoners as one of the current budget-cutting proposals. Many of those voices belong to members of prisoners' families and communities. We are especially concerned about elderly, disabled, and terminally ill prisoners, but there are some children who would love to see their healthy folks home for the holidays, too.

We want our legislators and public officals to remember that not all prisoners are "bad people", and that their punishments affect more than themselves alone - as would an act of grace. When you decide what to do with them - how you punish them, for how long, and under what kinds of conditions - think of them not only as "criminals", but as mothers and fathers, sisters and brothers, sons and daughters and friends to many of us.

Some of us have been agitating for awhile about lengthy sentences, the Department of Corrections' health services and mental health care, and deteriorating prison conditions. Others are just getting organized. Between us, it doesn't look like we can count on many legislators to go out on a limb on behalf of our loved ones. So, stand with us, feel free to follow along, or move out of the way, because there's a lot we'll need to be talking about in the coming year, and there's no gettting around all of us. We don't care what party a senator or representative is with: there are a lot of problems with the criminal justice system, and you can be "tough on crime" without being so tough us. We've been hurt, too.

"Sunbelt Justice" by UC-Irvine Professor Mona Lynch provides a good foundation for understanding the issues we'll be raising with public officials in constituent meetings, at the Capitol when the legislature re-convenes, and throughout the 2010 political campaign season. Professor Lynch will be in Tempe on December 2, speaking about her research into the history of the Arizona DOC and the potential turning point we find ourselves at. Your appearance would be a show of interest and perhaps support, but your voices and votes are what we'll be paying most attention to.

In the meantime, as you deliberate the budget crisis this weekend, please give your consideration the human aspects of authorizing an early release program. Look into the research about crime and punishment. Prison over-crowding alone takes a toll, stressing everyone from prisoners with physical and mental health conditions to corrections officers whose safety is placed at greater risk.

There are also simply more effective ways to deal with things like alcoholism or the absolute desperation of poverty than long-term incarceration. Many of these interventions would help our families, and protect our communities from further harm in the long run. We are sure Director Ryan can develop a good list of low-risk prisoners to consider for early release to community supervison, and redirect Arizona Department of Corrections' resources appropriately.

Thank you for your time.

Sincerely,

Peggy Plews
Friends of Marcia Powell

--------

"Our strategy should be not only to confront empire, but to lay siege to it.
To deprive it of oxygen.
To shame it.
To mock it.
With our art, our music, our literature,
our stubbornness, our joy, our brilliance,
our sheer relentlessness,
and our ability to tell our own stories..."

- Arundhati Roy

http://freemarciapowell.blogspot.com 

Framing the Governor

Homecoming Parade and the Governor

Sorry these took so long to put up - I actually got myself out of bed Saturday and went to the parade - fortunately I wasn't alone at the head of it. Thanks Matt. I don't know who was down the line further on.

Once the Governor's car passed by I moved in right next to her, sign held high, and managed to walk about 50 yards with the procession before the long arm of the law reached me and steered me back into the crowd. The best image of this we don't have - it's the governor with Marcia Powell at her shoulder - my face isn't even visible. She's straining to keep her back to us as she smiles and waves and throws candy - pretending akwardly that Marcia isn't there, quietly insisting on hers and her sisters' safety and freedom.

That's the photographic image we need to chase every single politician running for office with - either they display openly their total disregard for human life, or they answer what they would do differently to change what happened to Marcia Powell -and what's happening to women in the "justice" system in this state every day.

Read Mona Lynch's book, by the way - Sunbelt Justice. It's all about what we're up against in Arizona - it's like a blueprint to the enemy's HQ - it tells how it was all built, and what the foundation is made of that it rests upon. I'm still working my way through it - drop me a line if you're looking at it too.

Sunbelt Justice

This is a new book out by Mona Lynch, a professor at University of California - Irvine, about the rise in mass incarceration over the past two decades or so, using Arizona's prison industrial complex as the case study. Couldn't be more timely. Here's the brief description from Stanford University Press, where you can pick it up for $29.95 (I'm going to have to wait a couple of weeks myself). I'll post a good review on it when I get a chance.

 

Publisher's Note:

"In the late 20th century, the United States experienced an incarceration explosion. Over the course of twenty years, the imprisonment rate quadrupled, and today more than than 1.5 million people are held in state and federal prisons. Arizona's Department of Corrections came of age just as this shift toward prison warehousing began, and soon led the pack in using punitive incarceration in response to crime. Sunbelt Justice looks at the development of Arizona's punishment politics, policies, and practices, and brings to light just how and why we have become a mass incarceration nation."