Civil Rights Law & Policy Blog

"Prop. 47: A simple step toward reducing mass incarceration"

This recent post by Professor Jonathan Simon at The Berkeley Blog explains the societal and institutional importance of California's Proposition 47, which will appear on the ballot this November. Simon begins:

California Proposition 47...would change the legal classification of many “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors (read the details on ballotpedia.org here.)

 

This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.

 

Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced “unless court finds unreasonable public safety risk,” a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

 

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.

 

Opponents, most of the state’s District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

 

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment. 

When victims' families defend defendants against capital punishment

In When Victims Speak Up in Court--in Defense of the Criminals, The Atlantic's Andrew Cohen writes about the difficulties faced by prosecutors and judges when victims--or victims' families--defend defendants against the state's pursuit of certain punishments. In particular, Cohen examines the ongoing Colorado murder case in Colorado v. Montour in which the victim's family opposed the death penalty for the defendant. Cohen explains:

The last time [the defendant] faced trial for [the victim's] death, the victim's family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of [the defendant's] mental illness at the time of [the victim's] death, the [the victim's family] have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the...case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the [victim's family] picketed the line and pleaded with [the prosecutor] to spare their son's killer.

 

Episodes like this -- and the media attention they inevitably generated -- prompted....the prosecutor in the Montour case[] to remove the family  from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted [the defense] attorneys to ask the trial judge in the case to allow the [victim's family] to testify during sentencing. That prompted an aggressive response from [the prosecutor], arguing that Colorado's victims' rights laws don't apply to "mitigating" factors during sentencing but only to "aggravating factors." And that is where we stand today.

Capital punishment, of course, likely will subsume much of this controversy (perhaps at the expense of other much needed sentencing reforms), especially as questions as to its propriety have re-emerged  nationally after the shameful Ohio execution that lasted 26 minutes. The executed man's family now is suing the state for its alleged violation of the Eighth Amendment's prohibition on "cruel and unusual punishment." Meanwhile, several state senators have called for the reinstatement of firing squads in executions. Given these developments, Cohen's article is a particularly compelling read. It begins:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

 

The immutable trio that once existed in criminal cases— judge, prosecutor, and defendant—now almost always resembles a quartet. Victims have a voice—and they use it. All 50 states now allow some form of "victim impact statement" at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

 

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state? What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son? What responsibility does the prosecutor have in that case? What obligations do the courts have? Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

 

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer. The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues. But I haven't been able to find a single victims' right advocate who believes that's true.

CRL&P related posts:

• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons
• There's an alarming number of deaths in US jails

Community based-mediation between youth offenders and their victims?

In Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing, Professor Samantha Buckingham argues that a community-based sentencing scheme would better serve youth offenders--and society at large--than our currently unsophisticated and inefficient one. Here's the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society. Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders. The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.