Category Archives: sentencing

A second chance for juveniles

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Think about when you were 14, 15 or even 18 years old. You may have been the jock, the smartypants, the nerd, the weirdo, the hot chick, the best friend or home schooled. Think about the worst thing you did those years.

Now imagine that the worst thing you did – if it was legal – was deemed inappropriate by society. Inappropriate to the tune of 20 years in jail or 30 years or 40 or 60. Or just remember that time you bullied someone or you stole a lipstick or you made fun of a teacher or you took your dad’s car and went for a joyride or you made up stories about that girl because she wouldn’t make out with you.

Now, thinking about yourself, do you cringe? Have you spent time over the years wondering who that kid was and being glad that you’re not that anymore? Have you spent any time thinking “boy, I was a douche back then, but I’ve grown and changed?”

We all have. The only difference is that some of us are stuck in jail for extremely long sentences for things we did when we were barely out of middle school. CT mandates that all children above the age of fourteen, charged with serious felonies, are automatically treated as adults and exposed to adult sentences, ranging from maximums of 20 years to 60 years. And there are about 170 people who are currently serving such sentences for things they did between 14-17.

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The Mercy Project

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It takes a lot for a judge to look a defendant in the eye, while sending that person to jail for 15 years, and say “This is one case where the guidelines work an injustice, and I’d like to do something about it but I can’t”. It’s a staggering admission by a sitting judge that his hands are tied by a legislature and a Congress that can’t see beyond the headlines they want to generate.

Mandatory sentences are reviled by judges and defense attorneys; prosecutors secretly love them and the pitchfork public revel in them. And people’s lives are ruined under their aegis. Mandatory sentences are the single most dehumanizing feature of the criminal justice system: it is the explicit admission that the system is stripping people of their individuality and instead treating them as cattle, with numbers branded upon their chest.

Robbed a bank to feed your starving child? Doesn’t matter. Found a little bit of crack on your person? Treated like a kingpin. It’s a one-size fits all approach that has led to gross inequalities, most notably in the crack-powder cocaine scenario. Thousands of people were caught in drug sweeps in the 80s and 90s and thanks to these mandatory sentences, banished to jail for extraordinarily long periods of time.

Like Denise Dallaire.

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Expanding Graham

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In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments.  The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.

This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?

I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.

Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual. Continue reading →

Judge for a day – IV

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“Tring tring”

“Hello, how may I help you today?”

“One robbery, please.”

“For here or to go?”

“To go, please.”

“Okay, your total is one smack on the head, plus tax.”

Fine, so that’s not exactly how the conversation went when two would-be robbers called a local bank and informed the person on the phone that they would be stopping by in a few to pick up their order of cash.

“You can’t make this stuff up,” Sgt. James Perez, Fairfield police spokesman, told the Post. “They literally called the bank and said to have the bag of money ready on the floor because they’re coming to rob the place.”

Then, true to their word, they showed up – just as police were coming to greet them.

One is a 16-year old juvenile and the other, 27, is on probation for – wait for it – robbing a bank. Prison may not have cured him of his bank-robber-itis, but it sure did teach him some manners.

[This is just an extreme example of the dire mopiness of most of our clients. An overwhelming number of clients that we here at 'a public defender' represent are sad souls, lost in the quagmire of a dead end life. Most aren't very educated and very few are even street savvy. They're just fools, for the most part, who make bad mistakes without thinking of the consequences. Drugs, alcohol and poverty play a significant role in their motivations for committing crimes. Very few of them, however, have the common courtesy to call ahead.]

So it’s time to return to one of my favorite games: judge for a day (previous installments here, here, here and here). Imagine you’re the judge who is to affix a sentence to those two simpletons. You know what I know: one is a juvenile (assume that he his record is non-existent or minimal) and the other is somewhat older and on probation for robbing a bank. Also assume that the older guy owes about 5 years on probation.

Your options are: a nolle, some form of alternative to incarceration program (see 53a-39a to 39d and other diversionary programs start here), probation for a misdemeanor, conditional discharge for a misdemeanor, probation for a felony or a CD for a felony, or just straight up time in the slammer with or without probation.

The robbery statutes are from here on down and the larceny statutes start here. The terms of incarceration are here and terms of probation are here.

So, Judge Intrepid Reader, how would you dispense your justice?

It’s time to wake up (updated)

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It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty?  How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

  • Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
  • Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
  • The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
  • A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
  • Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

So long, farewell, don’t let the door hit you on your way out

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[Alternate post titles: So long and thanks for all the blog fodder; This just in: The Law now has a weak pulse]

So, it’s probably unnatural and unhealthy to be so giddy upon learning that Gov. Rell has decided not to seek re-election, but as most of you know, I can’t stand the woman. And that’s putting it mildly. I let out an audible yell yesterday when Ann Nyberg tweeted that she wasn’t going to run. My colleagues looked at me, much like they always do, like I had three heads. So maybe my disdain of the American Idol Governor knows no bounds.

But there’s good reason. After all, she has singlehandedly done so much to create such a disregard for the law and the rule of law, that sometimes I wonder who is worse: the law-breaking “criminals” she sought to protect our white community from or the law-ignoring bureaucrat.

She was the most dangerous of the “tough on crime” pols: sweet, nurturing, grandmotherly. She would lull everyone into sleep with her gentle affect and then decree the most outrageous acts of lawlessness this State has seen this decade.

First, there was Cheshire. Oh boy was there Cheshire. The brutal crimes in a white suburban neighborhood served not only to rouse the Governor from her mid-term siesta, but also had the side-effect of completely blinding her to common sense, and well, the rule of law. So the first thing she decided to do (well, sort of) was ban parole. That lasted for 4 months and resulted in severe overcrowding and a tremendous burden on state resources. That’s when Colin McEnroe coined the moniker “The American Idol Governor“. I still can’t get enough of that. She then proposed some truly scary and not very well thought out “reforms” of the criminal justice system, some of which unfortunately made it into law. Then she wanted CT to have a three-strikes law, in the face of all scientific research on its uselessness. Then came the unhinging, aka, “The David Pollitt Project“. I’m not even going to touch that. And finally, the veto of the death penalty abolition bill.

I write all of this, not to disparage her, but to remind myself and you  – voters all – of the absolute effing nonsense we’ve had to put up with these past few years. Will any of the people who’ve announced they’re running for Governor be any better? They almost have to, don’t they, because it can’t get much worse than this.

So while I wish her well in her personal life and hope that her health remains strong, I will not be sad to see her become former Governor Rell. I’m not sure there was a person less equipped to take on that job.

And now, on to the big question. What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.

We don’t need no! Sentencing Guidelines!

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I tried really hard to come up with a witty title, but this is all I could muster. After a long day stuck getting re-educated [Ed. Note: Gideon's just trying to be funny. Actually was one of the most educational CLEs ever], I’m not going to try harder. Deal.

Via Scott via Doug Berman comes word of Norm Pattis’ latest article in the Law Tribune (which I might have read if someone hadn’t snagged it right away), in which he essentially argues for sentencing guidelines. Heck, the first sentence is:

Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts.

If that’s all you take away from the article, then, yes, you should go bang your head on a table or wonder if Norm’s tried any Federal cases recently.

But there’s more. What Norm is suggesting is a solution to a state-wide problem, one that I’ve written about before and one that really needs to be rectified somehow.

Here’s what he’s really complaining about:

I stagger from the courtroom to tell my client that the court cannot force the prosecutor’s hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.

That’s just it. Everything in Connecticut is so…isolated. What’s a good offer in Hartford is unheard of in Waterbury. What would get accelerated rehabilitation in New Haven gets you a trial in Manchester.

Each courthouse in Connecticut is a separate entity, it’s own fiefdom. Some are run with iron fists and some with sensibility and compassion. But the results will always be different. A case that’s worth 1 year in one courthouse shouldn’t automatically become worth 7 years in another.

A long time ago, I asked what the reasons for this might be. The most popular answer was volume. Smaller courthouses have more time and resources to devote to prosecutions. Hence, a greater emphasis on adversarial litigation and demanding the moon and less on resolving the case efficiently and moving on to the next.

But that’s not all of it. As some regular readers will attest, in a few jurisdictions, the standard offers for certain crimes start in the high 30s. That’s years, not months. The same cases can get resolved in other equally busy courts for numbers in the 10s. That, squarely, rests on the shoulders of prosecutors. There are some that know they can twist the arm of every defendant, with pliant lawyers, into pleading guilty.

Sentencing guidelines, in my opinion, are a terrible idea. What Norm sees as the virtues of sentencing guidelines, I see as its pitfalls: a rigid set of rules, determining what the sentence should be for someone in an arbitrarily defined category. Sentencing guidelines remove all judicial discretion – and in good courts – prosecutorial discretion.

What he really means is that prosecutors need to stop being so varied in their assessment of cases. That judges need to grow a backbone and stop toeing the prosecutor’s line.

Maybe the next time legislators and the general public wonder why we’re spending so much money on the criminal justice system, they’ll look at the inconsistencies in prosecutions.

It would help. Sentencing guidelines won’t.

And to make you ignore everything I’ve typed thus far, here’s Pink Floyd: