a public defender

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Last week, the 2nd Circuit delivered a crushing blow on the war on drugs sanity and common sense. The Second held (for the first time, it is worth nothing) that sharing drugs is “illegal distribution” of drugs.

Police raided [Wallace's] apartment and recovered from Wallace’s bedroom 1.5 grams of cocaine base, a number of ziplock bags, 91.22 grams of marijuana, an AK-47 semi-automatic assault weapon and $460 in cash.

After receiving Miranda warnings, Wallace told police the drugs were for his personal use and, sometimes, for his friends. He said the gun belonged to his father and was kept for protection. He also said the bags were for dividing up the drugs so his friends would not know how much he had and “use it all up.”

No big deal, said the Second Circuit. The act of giving it to someone else makes you a drug dealer - regardless of whether you receive something in return (such as money).

[Judge] Jacobs said the word “distribute” in the statute means “to deliver” and the word “deliver” means “the actual, constructive, or attempted transfer of a controlled substance.”

The court rationalized that Congress, in passing the statute, did not include anything about “consideration” in exchange for the drugs, therefore they meant to treat “passing a joint” differently than hoarding all that pot and smoking it yourself, dammit - I hate you.

In doing so, the Court has now lumped international drug smugglers together with the two 30-year old kids who never grew up, sitting in one of their mothers’ basement, sharing a joint*. Clearly, this is something that Congress definitely intended. I mean, those two guys are capable of causing so much mayhem - think of all the runs to the grocery store to grab all the munchies they can! Will anything be left for the rest of us!? Is nothing sacred anymore!!!?

Unintentionally, doesn’t this create more incentive for people to buy their own drugs instead of mooching off of someone else? So, perhaps, there will be more people buying drugs than before. You better believe it when I tell you that the next time you come over, you can not share my stash. BYOP.

*Yes, I’m beating a dead stereotype. Sue me.

This is a post that has been in the making for a long time. It is incomplete and at times will be incoherent. These are questions, however, that I think are worth exploring and attempting to answer. So bear with me on this Sunday as I ramble.

Anyone who has followed this blog for the past year will no doubt be aware of several high profile criminal justice stories in CT: the Cheshire incident, the David Pollitt incident and the more recent New Britain incident. Starting with Cheshire, reform of the criminal justice system has been on the minds of many residents of this State, mostly pushed forward by our esteemed legislature and Governor. We were once on the path to reducing our prison population and now we are growing and bursting at the seams with no relief in sight.

Prison sentences have been beefed up to unimaginable levels in the name of public safety, rehabilitation programs have been abandoned and common sense no longer prevails.

Yet there are people who do not feel this is enough. Read the comments to any Courant article on criminal justice and you will see that there are people who feel that any sentence short of life is inappropriate.

This State, fueled by the vote-seeking legislators, has become gripped in what might be the biggest “tough on crime” wave in the country.

The paradox, however, is something that I have long suspected.

The world is a big, bad place. It really is. Which is why we have to protect children. No one will argue with that. Which is why there are tons of laws on the books criminalizing conduct that harms children, for the most part with extra penalties. I agree.

One of these laws is the prohibition against selling drugs in a school zone (or within a certain radius around a school, park or some other such location where children congregate). Whatever your views on drugs, I think you would be hard pressed to argue against the notion that children need not be in the presence of drugs or drug activity. We certainly don’t want drugs being sold in the presence of children. Someone sells drugs within 1500 feet of a school, they’re arrested and prosecuted (although in a state like CT, you’d be hard-pressed to find a spot that isn’t within 1500 feet of a school).

So why, then, do police engage in a very curious practice? Those who practice criminal law probably know what I’m about to say.

Cops target a dealer, perhaps making a hand-to-hand through an undercover officer. That’s not enough and they want more. So they arrange to make another purchase and another. Sometimes, they arrange for these transactions to take place in a parking lot of a pharmacy. Sometimes, coincidentally, the parking lot is within 1500 feet of a school.

Arresting a suspect for sale of narcotics isn’t enough - they want to tack on the added punishment of a sale w/in 1500 feet. So to accomplish that, they lure the suspect to a location they know to be w/in 1500 feet of a school.

If we are supposed to be protecting children from this behavior, then why are cops setting up such behavior in the presence of the very children we are trying to protect?

Curious, isn’t it?

A new study released today by the Pew Center reports that 1 in 99.1 Americans is in prison. From the press release:

For the first time in history more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety.  According to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, according to the study.  During 2007, the prison population rose by more than 25,000 inmates.  In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety.

As prison populations expand, costs to states are on the rise.  Last year alone, states spent more than $49 billion on corrections, up from $11 billion 20 years before.   However, the national recidivism rate remains virtually unchanged, with about half of released inmates returning to jail or prison within three years.  And while violent criminals and other serious offenders account for some of the growth, many inmates are low-level offenders or people who have violated the terms of their probation or parole.

“For all the money spent on corrections today, there hasn’t been a clear and convincing return for public safety,” said Adam Gelb, director of the Public Safety Performance Project.  “More and more states are beginning to rethink their reliance on prisons for lower-level offenders and finding strategies that are tough on crime without being so tough on taxpayers.”

Take a look at these numbers:

1 out of every 9 black men between the ages of 20-34 is in prison

1 out of every 54 men above the age of 18 is in prison

Over the last two years, CT’s prison population has grown by 1.1%, putting it slightly below middle of the pack.

CT’s spending on corrections is 4.4% of its total budget expenditures.

CT is also one of five states that spent more on corrections than on higher education.

So what are states doing about it? From page 22 of the report - there are three options: (1) diverting low-risk offenders from prison, (2) reducing the stay of low-risk offenders and (3) a combination of the two.

This is a fantastic report and a must-read.

H/T: SL & P

The Danbury News-Times (and apparently the Conn Post too) has this fantastic piece about the state of Connecticut’s prisons (you know, it’s really strange to be reading these stories about CT, when just six months ago, I used to read similar pieces with frequency about other states.)

From 1985 to Feb. 15, 2008, Connecticut’s prison population has soared from 5,422 to 19,690.

“It’s crazy,” concedes state Rep. Michael Lawlor, D-East Haven. “We are spending more money to run our prisons than run our colleges.”

“Think about it,” said [lawyer Frederic] Ury, a former president of the Connecticut Bar Association. “In just a 20-year period, we have quadrupled the number of people in our prisons and no one seems to be concerned about it.”

So what is the reason for this staggering increase in the population? Certainly the war on drugs and reports over the years seem to show that it really hasn’t had much of an actual impact on the drug problem. But there’s also a trend towards longer sentences and inmates serving longer periods of their sentences, especially since the elimination of good time (not that there’s an actual statue repealing good time, but that’s a story for another day).

“That’s a big difference,” said Bridgeport State’s Attorney Jonathan Benedict. “I don’t think this office is seeking greater sentences for the same crime than we did when I started 30 years ago. But inmates are serving more time on their sentences than they were 30 years ago.”

Now with the three-strikes law back in the judiciary committee, the potential for a further increase in the population is even greater. So what is to be done about it? The only realistic option at this point is building another prison. I’m pretty sure the legislature isn’t the mood to look at actual reform, given their passage of the criminal justice bill that had less reform and more punishment.

Gov. M. Jodi Rell is also pushing a “three strikes” law that would impose life terms on those convicted of three serious felonies.

But Tracy, the convicted felon, believes that’s the most dangerous law the legislature could impose.

“You tell someone they’re going away for life if they get caught — well, they’re not going down easy,” he said. “They’re going to bring danger to themselves, the people around them, and the people who come to get them. That’s a high price to pay.”

With the state’s prisons bursting beyond their 18,000-plus capacity, Lawlor sees only three options. The most obvious, he said, is to build more prisons.

Finally, Lawlor said, “We can do nothing and face being sued in federal court. Then we’ll get a federal judge running our prisons.”

As I’ve said before on this blog, these are quick fixes and won’t serve the long-term problem. One of the smartest things I heard was on Colin McEnroe’s radio show a few months ago. He was interviewing someone from Minnesota (I think; correct me if I’m wrong) Corrections, who said that we have to change expectations. Politicking is geared toward eliminating crime. That’s completely unrealistic and foolish to have as a goal, because it will never happen. Rather, we must work to reducing crime.

The way to do that is to look at what actually leads people to a life of crime. But there’s always very little interest in that. Not good politics and certainly not as surefire a way to retain your seat as locking people up is.

Stephen Cox, chairman of Central Connecticut State University’s criminology department, believes the best approach is to attack the reasons for crime.

“No one wants to hear about the factors that cause people to commit crimes — substance abuse, joblessness, homelessness,” [former CCDLA president Michael] Fitzpatrick said. “They just want them locked up and out of sight.”

“We can start by making bigger investments in our inner cities,” added Cox.

“We need politicians who will stop playing the sound-bite game,” said [Henry] Schissler, [a professor]. “We know the pieces that need to be fixed — better education, substance-abuse treatment programs, jobs with living wages — so why are we choosing not to fix them?”

Because it doesn’t sound as good and doesn’t get as many votes.

A temporary sentencing task force created by the legislature may be set to recommend that it be made permanent. The panel will release its findings and recommendations later this month. One thing it will not do, however, is recommend sentencing guidelines (thank God).

“The judges would have a problem with any permanent commission that is a precursor to guidelines,” said Judge Patrick Carroll, the state’s deputy chief court administrator.

Carroll likely has nothing to worry about.

“We’re not into guidelines in this state - not judges, prosecutors or defense lawyers,” said Thomas Ullmann, a public defender in New Haven who headed the task force subcommittee studying the possibility of a permanent commission.

The story says that CT needs a permanent commission in part because there is no communication between various agencies. Yeah, that’s fine and all, but I think CT needs a sentencing commission or task force more because of the severe disparities in sentences - both geographic and racial - and we need to tackle the overcrowding problem somehow.

It would help lawmakers better understand which types of offenders need to be in prison and who is most likely to reoffend after their release, said state Rep. Michael Lawlor, D-East Haven, a former prosecutor and chairman of the legislature’s Judiciary Committee.

“You don’t want the legislature to just guess at what the solutions might be,” Lawlor said. “And I think that’s what the legislature has done a lot of in the past.”

The commission could determine why Connecticut’s prison population has one of the largest racial disparities in the nation, Lawlor said.

I look forward to their report later this month. So should you.

Via SL & P, the Justice Policy Institute has released this new report, which finally gets close what I’ve been looking for for quite a while now. A study that examines incarceration rates to see whether there is a racial bias in who gets sent to jail and who doesn’t.

The study found that counties with higher poverty rates, larger African-American populations and larger police or judicial budgets imprison people for drug offenses at higher rates than counties without these characteristics. These relationships were found to be independent of whether the county actually had a higher rate of crime. (The findings for the 198 counties.)

Among some of the findings:

• In 2002, there were 19.5 million illicit drug users, 1.5 million drug arrests, and 175,000 people admitted to prison for a drug offense. While African Americans and whites use and sell drugs at similar rates, African Americans are ten times more likely than whites to be imprisoned for drug offenses.
• Of the 175,000 admitted to prison nationwide in 2002, over half were African American, despite the fact that African Americans make up less than 13 percent of the U.S. population.

There is an interactive map by county here and the full report can be accessed here.

Forgotten in this Cheshire mess is the sentencing commission that started work in May, which was charged with looking at how to change the state’s sentencing laws for the better. Ah, back in May, when Komisarjevsky was still on GPS monitoring and the Petit women were alive.

Glad to hear that someone thought to ask them of their other business. Cheshire has overshadowed the fact that CT has draconian drug laws and there is a racial disparity in sentencing and even charging.

[New Haven Public Defender Tom] Ullmann and several other members suggested the task force may be missing a chance to make long-term changes in the justice system.

Others said the group will continue to discuss issues such as mandatory minimum drug sentences and racial disparity in sentencing even as it deals with parole system gaps exposed by the Cheshire case.

Some of the juicy things on their agenda:

The task force divided into four subcommittees that would discuss alternatives to incarceration, sentencing structure, the racial imbalance in prisons and how to classify some drug offenses and other crimes that carry a broad range of possible sentences.

These are all excellent areas of investigation and reform. Thankfully last year the legislature eliminated the disparity between crack and powder cocaine sentencing (I think…I may be imagining it).

Prison overcrowding is an immense problem and all of these avenues will help to reduce it and hopefully, get to the source of the problem for most drug offenders: addiction.

I wish there was some way to study racial disparities in charging, but it seems too daunting a task.

Of all the groups commenting on Cheshire, this task force has been oddly silent. Not all members agree:

Some members say the task force should lend its voice to the Cheshire debate so the state does not make any rash changes.

“I think it’s incumbent upon us to respond,” said Andrew Clark, a group member and the administrator of the Institute for the Study of Crime & Justice at Central Connecticut State University. “We have to ask tough questions and come up with real solutions.”

But there has been, at least for some members, a shift in focus.

The sentencing task force changed its focus at the same time. It studied tougher burglary laws and looked at the impact a tougher “three strikes and you’re out” law would have on prison overcrowding.

“It’s almost like members are bending over backward to join the throng of punitive measures,” said Jon Schoenhorn, a task force member and president of the Connecticut Criminal Defense Lawyers Association. “It violates the entire purpose of why this task force was created.”

“Three strikes laws” + prison overcrowding: Not gettin’ better any time soon.

More on yesterday’s report. Judiciary co-chair Mike Lawlor weighs in:

That shows the disparities may be more between the rich and the poor, said state Rep. Mike Lawlor, D-East Haven, co-chairman of the legislature’s Judiciary Committee.

Connecticut’s white population is unusually rich, meaning more white offenders can afford the best attorneys and avoid prison than minority defendants, Lawlor said.

Uh, what? Rep. Lawlor, in case you didn’t know, your state (my state, our state) has one of the best public defender systems in the country. I would rather be represented by a public defender in this state. Please, do not disparage the brilliant attorneys working for our division so. Them’s fightin’ words - and a little heartbreaking

You want to know another reason why the racial disparity is such? Because we classify non-violent drug offenders are violent based on their past history and keep them in jail longer.

That’s not to say CT hasn’t taken steps:

The legislature in 2005 increased the amount of crack cocaine a person must carry to be charged with planning to sell drugs. A commission of legislators, officials and policy experts is studying sentencing reform, including possibly changing the state’s mandatory minimum drug laws.

Nearly two-thirds of defendants charged with mandatory minimum drug crimes are black or Hispanic, state statistics show.

“The overrepresentation of people of color in our correctional institutions has long been of great concern to me,” Correction Commissioner Theresa Lantz said. “While I can’t control who is placed in my custody, I strive to address literacy, employment skills, sobriety and housing during incarceration, so that these individuals are prepared for a productive re-entry to their communities.”

Sentencing disparities anyone?

The Sentencing Project has issued [blurb] its latest report [pdf] on State rates of incarceration based on race and ethnicity has some disturbing news for Connecticut. Connecticut is one of five states where African-Americans are incarcerated at twelve times the rate of whites.

That’s not all. Connecticut’s Hispanic to white incarceration ratio is three times the national average and is the highest in the nation at more than six times.

Some explanation for this:

Other states – Connecticut, New Jersey, New York, Rhode Island – maintain black rates of incarceration that are near or below the national average, but have white rates of incarceration that are less than half the national average. Thus, an average black rate of incarceration and a low white rate of incarceration results in a high black-to-white ratio.

Obviously a big contributor to this is the drug policy - especially the sentence enhancements for sale within school zones [previous commentary here].

What is more important and more interesting is whether there are racial disparities in sentences imposed. I asked about this before, but didn’t generate much discussion. Perhaps this time will be different. Are there such disparities? Can they be proven? Is there a remedy besides sentencing guidelines? Obviously, the statistics indicate that there might be something there, but is it quantifiable?

What should one look to in determining whether racial disparities at sentencing exist?

Finally, sentencing disparities in capital punishment rates are also documented. Where there’s smoke….

On a related note, here’s another study [full study] released today [release] by the Justice Policy Institute that finds that anti-gang legislation that advocates locking up gang members and other initiatives aimed at reducing gang violence doesn’t work; rather it adds to the gang problem.

HT: SL & P & Talkleft

The New Haven Independent has this piece on some legislation discussed during the recently concluded legislative session. Notable among the bills mentioned was one to eliminate the offense of “sale within 1500 feet of a school zone”.

Another bill People Against Injustice and other grassroots groups around the state supported would have removed 1,500-foot “drug-free zones” around schools, day care centers and public housing. Those arrested on drug charges in such zones receive mandated longer prison sentences; the zones cover practically entire cities around the state.

I missed this - maybe it was just a proposal and not an actual bill - but this absolutely needs to be done. Connecticut is a very small state to begin with and in cities like New Haven and Hartford, it is almost impossible to be somewhere that is not within 1500 feet of a school. For example:

One reform group estimated that the only part of New Haven exempt from coverage under this law is the Yale golf course.

I guess the purpose of the bill was to prevent people selling to school kids, but all it does in reality is penalize those that live and sell within a city. Almost none of the defendants arrested and charged with sale within 1500 are arrested for selling to children.

It’s not like sale of drugs isn’t an offense. It is. Heavily punishable in this state. Sale w/1500 feet is usually tacked on to threaten defendants into taking plea deals that are significantly higher than if there were no charge of sale w/1500 feet. For a normal sale, you can get up to 15 years for a first offense and 30 for a second offense. If you’re not drug-dependent, however, you can get up to life in prison

Good to see then, that Judiciary Committee co-chair Mike Lawlor recognizes this problem:

Lawlor called the 1,500-foot law is a result of the law of unintended consequences. “That law was supposed to address people who sell drugs to kids and near schools. In practice it’s the same penalty no matter where you are so you might as well sell to kids right outside school. It’s an example of how drug laws create racial disparities - I don’t think it was intended - but if you get caught possessing drugs in an urban area the penalties are more severe than if you’re caught in a suburban or rural area. I don’t think there’s an agenda. Legislators just don’t like lowering penalties.” He supported the change, however.

And he’s right. It does discriminate; just like the differing penalties for crack and cocaine discriminate.

Take a look at the map above. It is a map from the New Haven Police Department that they use to chart the “buffer zones”. It is pretty obvious that the whole city is covered. The red squares are Public, Private, Charter, and Head Start Schools. the blue squares are New Haven Housing Authority Projects and the green dots are Daycare Centers (More than 12 children). [The map is part of this 2001 OLR Research Report.]

I mentioned this problem of distance restrictions in the context of residency restrictions for sex offenders a few months ago and I hope that if and when a residency restriction bill is proposed again, Rep. Lawlor keeps in mind that it would create the same problems. By the quote above, if a residency restriction bill were passed, no sex offender could live in the city of New Haven. That’s a problem.

Woman in Black posted about drug courts the other day. She wondered how they were handled in other jurisdictions and whether they gave too much power to judges.

Our state is really getting on the bandwagon about “problem-solving courts” but I have really mixed feelings about them. In general, I believe in treatment; we have an enormous meth problem, and meth addicts don’t fix themselves. Send them to prison, they come out and use; put them on straight probation, they use; put them on supervised, they use. But our drug courts seem to be giving too much power/authority to the judges involved, and not nearly enough due process. People get terminated with no hearing at all when the team decides, for example.

I have no experience with drug courts. However, I think that “problem solving” courts and dispositions are preferable to simple incarceration (let’s face it; rehab is no longer a part of incarceration), but they have to be done right. Part of the process of getting over an addiction is failing and trying again, harder. Zero tolerance policies don’t really work and aren’t helpful to anyone. There has to be a long term commitment to each offender’s rehabilitation program.

What do you guys think? How do your states handle drug courts?

The PD blawgosphere has discussed “drug courts” before. [PD Stuff has a fantastic pd blog search tool]