Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge. Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.
And 40 years on probation.
Probation terms vary by state. They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar. For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms. For the privilege of being subjected to all this, there are also fees owed to the state—all to live on the edge of a life-destroying prison sentence.
"The fear that you live with, it diminishes as time goes by a little bit, but it's always there—that I could be in the wrong place at the wrong time and, and have somebody else do something that I could go to prison for," Schroeder says. "My sentence would be 98 months if I ever violate my probation, no matter what. It's always a scary thing."
In most other states, Schroeder's possible probationary term would have been capped at around five years. But until 2020, Minnesota's probation terms could be as long as the maximum prison sentence you could receive for the crime. Minnesota has since changed its sentencing guidelines to cap the amount of time someone can be sentenced to probation for a felony offense to five years, thanks in large part to Schroeder's story and her advocacy. But that change did not apply to sentences issued prior to the legislative change. As it stands, Schroeder won't be off probation until she's 71 years old, in October 2053.
"I don't think I've ever met anybody," Schroeder says, "even people who have murdered other people or assault or arson, or any big crimes I can think of, that has a sentence that long."
Schroeder's sentence is extreme, but the statutory framework that allows for such lengthy supervision terms is just one of the problems with America's sprawling probation systems.
While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives. And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control. Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.
It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight. As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?
Probation was originally established as a way for community members to keep an eye on those who committed petty offenses or misdeeds—to hold someone accountable without punishment.
John Augustus, a Massachusetts teetotaler who believed in reforming alcoholics, became the U.S.'s first probation officer in 1841, when he bailed out a drunkard and returned the man to court three weeks later, sober and cleaned up. He would go on to post bail for nearly 2,000 people over the next 18 years, and he kept detailed notes on his efforts to steer them back to virtuous living, establishing some of the major principles of probation. According to his notes, only 10 of his probationers absconded.
"That just sort of became the birth of probation," says Kelly Mitchell, the executive director of the Robina Institute of Criminal Law and Criminal Justice, a nonpartisan research institute at the University of Minnesota Law School. "It was intended originally to be an alternative to a prison sentence. And I'd say that as it has evolved over time, it's become a sort of punishment in and of itself."
The use of probation accelerated alongside the huge rise in prison populations in the 1980s and 1990s. "If you go all the way back to 1990, there were a little over 1 million people on probation," says Mitchell. "By 2007, it was 4.3 million people. It expanded dramatically at the same time that prison populations expanded, and it's been going down since then."
At the end of 2020, an estimated 5,500,600 people were under adult correctional control in the U.S., according to the Bureau of Justice Statistics. This includes people incarcerated in a jail or prison and those on probation or parole, which are commonly lumped together under the term community supervision.
Of that 5.5 million, more than half—3,053,700 people—were on probation. That's about one in 84 American adults. Probation numbers have been steadily declining over the last decade, but that's still a staggering amount.
Schroeder joined their ranks in 2013, when police caught her with methamphetamine in her car. Prior to her arrest, Schroeder's newborn daughter was taken away from her at the hospital due to a positive methamphetamine drug screen.*
"I was an addict, obviously," Schroeder says. "I quit using, but I was still selling drugs because that's all I knew how to do to make money."
Schroeder pleaded guilty to first degree sale of drugs, kept working on staying sober and complying with her case plan, and threw herself at the mercy of the judge.
"I'm not a monster or horrible person, you know?" she says. "I've had a lot of things happen. Drug use was a normal thing in my family. I used with my parents, and it was just kind of what we did."
In an unlucky twist for Schroeder, the judge in her criminal case was the same as the one in the family court case regarding the welfare of her newborn daughter. She says the judge gave her a choice: voluntarily relinquish her parental rights or have them terminated.
"She said, 'I'm gonna terminate your rights. I'm gonna give you an opportunity right now to sign your rights over, or you'll never see your daughter again,'" Schroeder recalls. "That was it. She gave me 15 minutes to decide if I wanted to sign over my parental rights to the lady who had been her foster family for this entire time."
So Schroeder says she signed over parental rights to her daughter. Back in criminal court, she received another shock. The judge sentenced her to a year in jail, which she'd already served at that point, and 40 years on probation. At the time of Schroeder's sentencing, Minnesota allowed probation sentences to be up to the maximum sentence you could get in prison for the same crime.
Only a small number of states allow probation terms to be as long as the maximum sentence for the underlying offense, which could be decades or even life. These states include Arkansas, Colorado, Georgia, Idaho, Indiana, Massachusetts, Oklahoma, Pennsylvania, Virginia, and Wisconsin.
Most states cap the length of misdemeanor probation sentences to two years and felony probation sentences to around five years. Many states have a "soft cap" on probationary term lengths, allowing felony probation to be extended for either an additional set amount of time, or indefinitely, for a number of reasons. Some states allow it to be extended for failure to pay restitution or fines and fees; others only allow that for violations, or if it's "in the best interest of justice." Only a fraction of those states require that felony probation be terminated after five years and do not have a pathway for courts or prosecutors to extend the probationary sentence for any reason.
Schroeder, like many people sentenced to probation, stood at an inflection point in her life. She had just lost custody of her daughter, and she was looking at 40 years on the straight and narrow, under the watchful eye of the state of Minnesota, or eight years in prison if she returned to her old ways.
"It's hard to even go back to what I felt in the moment, because it was a really hard thing to get through, especially brand-new sober, but I channeled my energy into college," she says. "I just went to college and said, 'I'm just gonna try to make sure this is not possible to happen again to anybody else.'"
When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer. According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."
In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car. New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."
It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking. Those on probation are also prohibited from missing any court-ordered treatment or rehabilitation meetings.
Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers. Any slip-up of these conditions can be counted as a technical violation. If regulations and state statutes don't prohibit or restrict revocations for technical violations, and a person has a particularly strict probation officer, one of these violations can land someone in prison.
Schroeder's terms include notifying an officer of changes in employment or residence within 24 hours, as well as of any plans to leave the state. The officer has the right to refuse travel requests.
In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says. "I can't have a gun in my home, which is a barrier for me. My boyfriend's whole family hunts, and my son isn't going to be able to learn gun safety and all that stuff, unless it's outside of our home, away from me."
Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.
According to an October report by The Sentencing Project, an estimated 995,717 people in the U.S. were disenfranchised in 2022 while on felony probation.
"What is the point where you have paid back your debt to society and you get to have your say in what happens in your political world?" she wonders. "In fact, if I voted, I would be charged with another felony."
In addition to probation conditions, there are also often recurring fees. The overwhelming majority of states allow for probation supervision fees—fees that people pay simply because they're being supervised. These supervision fees vary wildly by state. According to the Fines and Fees Justice Center, they range from $10 to more than $208 per month, or a flat $60–$300 per year.
On top of the monthly or annual probation fee, it's common for a person on probation to pay additional fees for probation conditions, such as treatment, programming, classes, electronic monitoring, or other interventions. In Oklahoma, probationers are required to pay $40 per month during the first two years of probation to "compensate the district attorney for the costs incurred during the prosecution of the offender and for the additional work of verifying the compliance of the offender with the rules and conditions of his or her probation," in addition to several other fees.
In many states, probation terms can be continued—sometimes indefinitely—until restitution, fines and fees, or both are paid. Georgia even has a special form of probation specifically for paying fees. Called "pay-only probation," it offers no actual supervision. The statute describes it as when "a defendant has been placed under probation supervision solely because such defendant is unable to pay the court imposed fines and statutory surcharges when such defendant's sentence is imposed."
If you don't pay, it can be counted as a technical violation and can potentially lead to incarceration. If you don't have a job to pay your fees, that could be a violation too. It is common for people on probation to be required to maintain employment. Our Constitution is supposed to prevent the government from jailing people just for being too poor to pay their fines and fees. So states are first supposed to find that a person "willfully" did not pay her fees before incarcerating her for this. But in practice it's murkier.
Some states have recognized the burden these costs put on people and are reducing or eliminating the fees. In October, Democratic Delaware Gov. John Carney signed a bill into law abolishing fines and fees from many facets of the state's criminal justice system, including fees for being under probation supervision. In 2020, California and Oregon passed legislation that removed statutory language permitting supervision fees as well.
Schroeder was lucky. She got a good probation officer, which can make or break someone's chances of staying on track and out of prison."
My probation officer has been a big pillar in my recovery, actually," Schroeder says. "She was completely supportive of me, and she was one of my biggest fans cheering me on, so I got fortunate in that."
Being a probation officer is a hard, often thankless job. The expectations for such officers have expanded as probation has become more prevalent and as the types of people on probation have changed.
"Older probation officers will tell you that it used to be their job to just look for people to do something wrong and then send them back," says Julia Laskorunsky, a research scholar at the Robina Institute. Those older officers, Laskorunsky says, summed it up this way: "Trail 'em, nail 'em, and jail 'em."
In some places that's still standard operating procedure. In Delaware, the Wilmington Police Department's "Operation Safe Streets" (OSS), a partnership with the Delaware Department of Correction, allows police and probation officers to jointly police those on probation.
While the program is, on paper, supposed to do things like curfew checks and other routine compliance tasks, the ACLU of Delaware released a report in October contending that OSS teams perform violent, frequently unconstitutional home searches and traffic stops, then coerce probationers into becoming confidential informants with the threat of going to prison. They then use tips from those informants to generate collateral arrests of nonprobationers. ACLU researchers found 13 cases where judges tossed evidence or prosecutors dismissed charges because of unlawful searches by OSS teams.
The report includes the account of Sharee Congo, who says that on the night of October 29, 2020, an OSS team tasered and beat her 22-year-old son, who was on probation, and then ransacked her house. She says officers also pulled her cellphone out of her hand as she tried to record the incident, handcuffed her, and then pushed her down the stairs.
The OSS team had received a tip from one of their sources that Congo's son had a gun. They did indeed recover a handgun, but it was Congo's. She had recently purchased it for self-protection. She says she tried to show officers the receipt, but they ignored her. Her son tried to fight the case, but after sitting in jail for two years while failing to convince prosecutors to drop the charges, he took a plea deal to serve five years in prison.
More typically, people become cogs in a bureaucratic machine and get tripped up for minor violations that can sometimes spin out of control.
Take Samuel Goggins. The Philadelphia Inquirer profiled Goggins in a 2019 investigative series on the city's probation system. Goggins was sentenced to five years of probation for a robbery (for which he maintained his innocence). Goggins missed one of his required appointments because he was hospitalized. He called his probation officer the next day, but the officer put out a detainer on him anyway. He eventually turned himself in, spent 20 days in jail, and was sentenced to 18 more months on probation. "Probation, it's like a setup," he told the Inquirer. "Any little thing you do, they send you to jail."
Not all probation officers take such a punitive approach. "In the last decade, it's swapped from being viewed more in the community as like a police officer to more of a social worker or clinician or somebody like a case manager," says Dan Pustinger, parole supervisor in Mercer County, Pennsylvania. Pustinger says the push to reduce jail populations has left officers dealing with many people who have repeatedly violated the terms of their probation. "It's not uncommon for us to have the same person released six or eight times in a year, just doing the same thing over and over," he says.
Mercer County probation officer Robert Sheridan talks about the frustration of trying to take someone in the midst of a mental health crisis to a hospital, only to be turned away. "And then overnight, they're on the streets, and then they commit a new crime or somebody gets hurt," he says.
"It's tough because you try and put yourself out there to help these people," Sheridan says. "You really want to see them do well. And it really sucks when you're doing everything you can, and then you just hit a barrier." Probation was a system set up to help mend lives, but even some probation officers seem to agree it's not working.
Not only do probation sentences' lengths and conditions vary widely, but so do the types of supervision.
For example, "probation tails" are fairly common in Arizona. In these situations, a person facing multiple charges accepts a plea agreement that requires a prison sentence for one charge, and probation to be served after incarceration for another. Since the practice began in 2009, the Administrative Office of the Courts estimates that 36 percent of inmates will eventually be released to serve a probation tail. This radically changes the population that Arizona probation officers supervise. Instead of supervising someone who is diverted from prison, they are supervising someone who has served a prison term. Arizona prisons don't have the reputation for being the most rehabilitative of places. A federal judge recently held the state prison system in contempt for failing to fix unconstitutional medical and mental health care, which included indefinite solitary confinement of people with mental illness.
In addition to regular probation, Florida has a unique system called "community control," which is essentially house arrest. A person on community control is prohibited from leaving home even to get basic necessities without first seeking permission from a probation officer. Typically this population is assessed as high-risk, but it is not limited to specific offenses. According to a recent study by the Crime and Justice Institute, it has an extremely high failure rate, with 85 percent of those having their probation revoked.
Several states allow for split sentences, with a portion of the sentence to be served in prison and another portion on probation.
Idaho has "rider," a sentence where the court retains jurisdiction over an individual for 365 days. After that year, courts will determine whether to place the person on probation or incarcerate them.
"In the United States we have 50 different judicial systems," says Laskorunsky. "And within those systems we have probation agencies that are more conservative, more progressive. And then there's variation from officer to officer."
There's also variation from court to court after a person is accused of violating probation conditions. Some judges might be willing to give you a second chance. Others will sentence a first-time violator to lengthy additional probation terms or stints in prison, depending on what state statutes allow. "The unknown and an uncertainty of what they're going to be facing, that's the part that I think people are really afraid of," Keir Bradford-Grey, Philadelphia's former chief public defender, told The Philadelphia Inquirer in 2019.
Schroeder has been on probation for nine years now without incident, but she still worries about being sent to prison for messing up. It's not an irrational fear.
Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.
Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.
For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations. According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider. "In our interviews of high-ranking criminal justice officials in Idaho, we heard consensus that Idaho is ill-equipped to meet the behavioral and substance use disorder treatment needs of Idahoans under community supervision," a 2020 report by the Idaho Center for Fiscal Policy said.
The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.
Kansas also has a high admission to prison rate for probation violations—44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.
The use of probation in Florida has been slowly and steadily declining over the past decade, mirroring the national trend, but the rate of revocations has remained stubbornly persistent. According to the Crime and Justice Institute, an average of 48 percent of those on community supervision in Florida have their terms revoked every year; around 54 percent of these revocations were for technical violations.
People arrested for probation violations have fewer constitutional rights—in many states they have no right to bail, for instance—and they then can face deplorable and unconstitutional conditions behind bars while they wait for a judge to review the violation. In September, a woman filed a federal lawsuit after she was forced to give birth alone on the concrete floor of a Maryland jail cell while nurses and guards allegedly ignored her pleas for help. She had been put in jail for an alleged probation violation the day before she went into labor.
A number of tweaks have been proposed to improve probation systems. Some states have begun reducing or capping the maximum probation sentences. Others have expanded earned credit opportunities to reduce the time served on probation, giving offenders a stronger incentive for good behavior. Other states have reduced or eliminated probation-related fines and fees.
Another idea is to start cases with no probation conditions and add them based on individual supervision needs, instead of assuming that everyone needs a long list of rules. Advocates say that when probationers are overburdened with check-ins and other conditions, it can make it harder to follow more important conditions, such as staying employed.
"When we talk about people not being set up to succeed, it's much harder to hold down a job, pick up your kid from day care, go to medical appointments, etc., if you need to travel to check in with your probation officer," says Katherine Williams, the policy manager for the Florida Rights Restoration Coalition, which works toward ending discrimination against formerly incarcerated people.
Advocates also say that, especially in drug cases, it's unreasonable to demand perfect compliance from probationers.
"If a person has a substance abuse problem, we should expect that we're gonna see a dirty [urinalysis]. We're gonna see a positive drug test at some point during that person's probation, because you can't stop that behavior overnight," argues Mitchell. "If the probation officer is responding to that as a signal that the person needs more help, then that's the right response. If they're responding to that like this person should be revoked and put in prison, that's the wrong response."
Schroeder, who became a drug and alcohol counselor after graduating from college, can speak to that point from both personal and professional experience.
"You cannot expect for somebody who has been an addict their whole life to come out and be perfect," Schroeder says. "It's just not gonna happen. And to send people to prison for those kinds of violations is just absolutely ridiculous."
Things as simple as text message reminders can significantly improve probation outcomes. A recent report published by Reason Foundation, which publishes this magazine, found that text message reminders could reduce canceled and missed appointments by as much as 21 percent and 29 percent, respectively.
More fundamentally, many researchers, advocates, and even probation officers struggle to understand what the real purpose of probation should be. Does it serve any public safety goal to keep Schroeder on probation for another three decades? Can offenders in Mercer County be rehabilitated when they're being turned away from hospitals? What exactly is the system trying to accomplish?
Schroeder says she has been clean for nine years now. She stays in touch with her daughter, and she has become an advocate for probation reforms. In 2019, Schroeder testified before the Minnesota Legislature in support of capping sentence lengths. The Minnesota Sentencing Guidelines Commission passed that reform, but because it was not retroactive it will have no effect on Schroeder's sentence."
It's frustrating that it's not retroactive, and at the same time it's rewarding that I was able to be a part of it," she says. "If anything good comes out of me being on probation, at least there are some changes made that are going to affect a lot of people that would normally probably end up in prison."
Barring any other changes to Minnesota's laws, Schroeder will live most of the rest of her life with a nagging worry in the back of her head, that no matter how long she stays clean and how successful she is, a minor slip-up could destroy everything she's accomplished.
"It's a fear that never leaves you," she says. "You could be plucked from society at any moment for being in the wrong place at the wrong time."
*CORRECTION: The original version of this article mischaracterized the whereabouts of Schroder's newborn daughter when she was pulled over and the kind of case plan she was following at the time.
The post The U.S. Probation System Has Become a Quagmire appeared first on Reason.com.
]]>On July 9, 2008, officers of the Columbia, Tennessee, police department arrested Michael Goodrum and charged him with possession of crack cocaine with intent to distribute in a drug-free school zone.
Sounds bad, right? Surely the kind of monster who sells crack in a school yard should be put away for a long time. Lawmakers certainly think so: All 50 states and the District of Columbia have laws on the books that provide for harsh sentences for people who buy or sell drugs near schools. In Tennessee, it's considered such a serious crime under the state's Drug-Free School Zone Act of 1995 that Goodrum's charge was automatically upgraded to a Class A felony—the same category as murder.
But Michael Goodrum was not peddling dope to kids on a playground. He wasn't on school property, and school wasn't in session. In fact, he wasn't within sight of a school.
According to court testimony by the police who arrested him, the 40-year-old was sitting in a private residence at 10:30 p.m. when officers swept into the living room with a narcotics search warrant. Goodrum was ordered to the floor, and when an officer picked him up, the cop found a small bag of crack cocaine underneath him.
Goodrum says he was only visiting the house. He had never been convicted of a felony before.
Normally, he would have been facing a stiff eight years in prison for possession with intent to sell of 1.7 grams of crack cocaine. (That's about the same weight as two blueberries.) But the room he was in happened to fall within 572 feet of a park and 872 feet of a school—roughly two blocks away from either, but still well within the 1,000-foot drug-free radius created under Tennessee law.
After a four-year odyssey involving a hung jury and a retrial, Goodrum was convicted and sentenced to 15 years without the possibility of an early release. Had he been convicted of second-degree murder, he might have ended up serving less time in prison. That crime carries a minimum 15-year sentence but includes a possibility for release within 13.
Goodrum's case isn't unusual. Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination—a lingering hangover from the drug war hysteria of the 1980s. Yet state legislatures have made the designated zones both larger and more numerous, to the point where they can blanket whole towns. In the process, they have turned minor drug offenses into lengthy prison sentences almost anywhere they occur.
In some cases, police have set up controlled drug buys inside school zones to secure harsher sentences. That gives prosecutors immense leverage to squeeze plea deals out of defendants with the threat of long mandatory minimum sentences.
In recent years, this approach has begun to trouble some state lawmakers, and even some prosecutors are growing uncomfortable with the enormous power—and in some cases, the obligation—they have been handed to lock away minor drug offenders.
Nashville District Attorney Glenn Funk ran for office in 2014 on a platform that included not prosecuting school zone violations except in cases that actually involve children. He says almost every single drug case referred to his office falls within a drug-free zone.
He's right. Data obtained from the Tennessee government show there are 8,544 separate drug-free school zones covering roughly 5.5 percent of the state's total land area. Within cities, however, the figures are much higher. More than 27 percent in Nashville and more than 38 percent in Memphis are covered by such zones. They apply day and night, whether or not children are present, and it's often impossible to know you're in one.
For a drug offender charged with possession of under half a gram of cocaine with intent to distribute, a few hundred feet can mean the difference between probation vs. eight years of hard time behind bars.
"In places like Nashville, almost the entire city is a drug-free zone," Funk says. "Every church has day care, and they are a part of drug-free zones. Also, public parks and seven or eight other places are included in this classification. And almost everybody who has driven a car has driven through a school zone. What we had essentially done, unwittingly, was increased drug penalties to equal murder penalties without having any real basis for protecting kids while they're in school."
Goodrum is one of 436 inmates currently serving time in Tennessee state prisons for possessing or selling drugs in a drug-free zone. The oldest of those inmates, Harry Watts, was 74 years old at the time of his sentencing. It was his first felony conviction. The youngest, Sammy Russell, was 16 when he received eight years in an adult prison for having half a gram of cocaine, or less than a packet of sugar, on him. It was his first felony conviction as well.
For a drug offender charged with possession of under half a gram of cocaine with intent to distribute, a few hundred feet can mean the difference between probation or release within three years, on one hand, vs. eight years of hard time behind bars without any hope of parole, on the other.
Tennessee's drug-free school zone laws are among the harshest in the country, but the state is far from an outlier. Statutes that increase sentences for drug crimes that occur near schools or other places where children congregate—parks, rec centers, libraries, day cares—exist in all 50 states and the District of Columbia.
Congress created the first drug-free zone law in 1970 as part of the federal Comprehensive Drug Abuse, Prevention and Control Act. At the time, supporters argued that the laws deterred drug sales to children and reduced other criminal activity associated with drugs in areas around schools.
"Those who have a drug habit find it necessary to steal, to commit crimes, in order to feed their habit," President Richard Nixon said in a signing statement. "We found also, and all Americans are aware of this, that drugs are alarmingly on the increase in use among our young people. They are destroying the lives of hundreds of thousands of young people all over America, not just of college age or young people in their 20s, but the great tragedy: The uses start even in junior high school, or even in the late grades."
The law was amended in 1986, near the height of the '80s-era drug panic, to double the maximum sentence for drug distribution or manufacturing within 1,000 feet of a school, college, or playground, and to add areas within 100 feet of swimming pools, video arcades, or youth centers.
States followed suit. Throughout the 1980s and '90s, drug-free school zones became ubiquitous throughout the country. In the 1990s, some states expanded their zones to include public housing, shopping malls, parking lots, and amusement parks, as well as expanding the types of offenses that would be covered. Indiana expanded its drug-free zones to include public housing complexes and "youth program centers." Utah brought in movie theaters, parking lots, arcades, and malls. Washington state included bus stops.
Pennsylvania was the last state to enact a basic drug-free school zone law, in 1997. But a few states have expanded theirs as recently as 2015, despite widespread support for other criminal justice reforms that reduce, rather than ratchet up, penalties for nonviolent crimes. In 2011, Arkansas changed its law to allow simple drug possession offenses that occur in drug-free zones to be eligible for the state's mandatory 10-year sentencing enhancement. In 2012, Hawaii amended its law to include public housing complexes. In 2015, Texas enacted legislation that allows for opioids to be included in the list of substances eligible for a drug-free zone sentencing enhancement.
Alabama has the widest drug-free zones in the country, extending three miles from schools, colleges, and housing complexes. Drug offenses inside those areas carry a five-year enhanced sentence. In practice, this means that 38,267 square miles of Alabama—73 percent of the state—are within a -drug-free zone. Cities with a higher concentration of schools and public housing projects are worse. Ninety-four percent of Montgomery falls within a drug-free zone.
Prosecutors and law-and-order legislators have fiercely opposed changes to these laws. When the Connecticut legislature considered shrinking the size of its drug-free zones in 2012 from 1,500 feet—a distance of more than three football fields—to 200 feet, one outraged lawmaker testified that he was "appalled as to why anyone would support a bill that puts our children at greater risk by easing restriction on drug dealers."
"Many children walk this distance every day to and from school, and it is our job to ensure there are laws in place which adequately protect them," Republican state Rep. Prasad Srinivasan declared. "As drugs get closer to our schools, other forms of crime and violence will certainly follow."
The fearsome image that spurred these laws and keeps them on the books—a shifty drug dealer handing a child a bag of drugs through a chain-link fence—is little more than a phantom.
Funk, the Nashville district attorney, says that over the last three years he's dealt with only three drug cases that involved the actual endangerment of a child. One happened when a suspect fleeing the police ran through a middle school's grounds, sending the school into a lockdown.
In the early 2000s, former Massachusetts Assistant Attorney General William Brownsberger conducted a review of drug cases in three Massachusetts cities. He found that 80 percent of them occurred in drug-free school zones, but almost none of them involved sales to minors.
"In all of those cases that we looked at, in that entire set of about 450 files from two different district attorney's offices over the course of a year, there was exactly one case of drug dealing to a minor," says Brownsberger, now a Massachusetts state senator. "That happened in an apartment late at night, and it just happened to be near a school."
In all the years since, he's still never come across a case of the dreaded playground pusher in action.
"I've been a practitioner in the area for 10 years and a legislator for another 10, and I've never seen that case," he says. "The only cases that I'm aware of involving dealing drugs on or in a school are always kids selling to other kids. Usually in those cases, you don't want them getting a two-year mandatory minimum. It's just totally inappropriate. The whole school zone concept is bankrupt and should be repealed entirely."
States created drug-free school zones thinking that the threat of draconian prison sentences would keep dealers away from schools. But the very size of these zones undercuts that premise. If a whole city is a drug-free zone, then the designation has no targeted deterrent effect. In practice, it exists to put more people in prison for longer periods of time, not to keep children safe.
"Drug-free school zone laws show how good intentions can go horribly wrong," says Kevin Ring, president of the advocacy group Families Against Mandatory Minimums. "Adult offenders who aren't selling drugs to or even near kids are getting hammered with long sentences. Most don't even know they are in a school zone. These laws aren't tough on crime. They're just dumb."
By covering wide swaths of densely populated areas in drug-free zones, states end up hitting low-level and first-time drug offenders with sentences usually reserved for violent crimes.
Tennessee's drug-free school zone laws bump up drug felonies by a level and eliminate the possibility of an early release. For example, a first-time drug offender found guilty of a Class C felony for possession with intent to distribute of less than half a gram of cocaine—which carries a maximum six-year sentence—instead receives a Class B felony with a mandatory minimum sentence of eight years.
These penalties are zealously applied. Knoxville criminal defense attorney Forrest Wallace says that one of his clients received an enhanced drug sentence for merely walking through a school zone that bisected the parking lot of his apartment complex on his way to meet the informant who had set him up. The client received a normal sentence for the sale of the cocaine, but an enhanced charge of possession with intent to distribute for passing through the school zone.
"If they can prove it's in a zone, you know they're going to charge it," Wallace says. "That's just the way it is."
Undercover cops and confidential informants sometimes go to extra lengths to get these enhanced sentences. David Raybin, a Nashville criminal defense attorney, says that police informants often purposely set up deals in school zones, a practice that has led to accusations of entrapment from defendants and rebukes from judges dismayed by the practice. "The police will frequently have people sell drugs in a school zone so they can enhance them," Raybin says.
"The only cases that I'm aware of involving dealing drugs on or in a school are always kids selling to other kids. Usually in those cases, you don't want them getting a two-year mandatory minimum. It's just totally in appropriate."
Tennessee resident Jordan Peters was 20 years old when he sold a bag of hallucinogenic mushrooms to a police informant at a gas station in 2010. Peters testified at trial that the informant had been "blowing up" his phone and asking for drugs. He said he told the informant that he needed to gas up his car before meeting her, and the informant suggested they just meet at the station.
Peters had no prior criminal history, but because the $80 drug transaction happened 587 feet from an elementary school, he received a mandatory 15 years in state prison. He will not be released until 2027.
Peters' case is not unusual. In a 2015 ruling upholding his sentence, Appellate Judge Camille McMullen noted her "increasing concern regarding enhancement of convictions under the Act."
"I simply do not believe that the Tennessee legislature intended the scope of the Act to include drugs brought into the protected school zone by law enforcement's own design," she wrote. "This concept of luring, which commonly takes the form of an undercover sting operation, is inconsistent" with the law's goal of reducing illegal drug activity around schools. (In the end, however, McMullen "reluctantly" concurred with her two fellow judges that, based on precedent, Peters' case did not amount to entrapment.)
In another case, a judge warned that drug stings on school grounds could create an unsafe environment for students. In 2001, police officers from Davidson County's Metro Drug Task Force testified at the trial of defendant Baudelio Nieto that they had driven Nieto to an elementary school parking lot to discuss a cocaine deal for the expressed purpose of securing an enhanced sentence against him. The tactics bothered Judge John Aaron Holt. "All the problems we are having with our schools, we don't need the Police Department setting up [drug] buys on school property," he said, according to The Tennessean. "This is not a good thing to be doing."
Nieto's lawyer, Mario Ramos, says he has worked on three or four cases where police set up drug transactions in drug-free zones. "Literally every time there was a drug buy, they were trying to figure out how to get near a school," Ramos says. "It led to enhanced punishment, and of course the enhanced punishment gave them a greater negotiating arm."
But such planning is largely unnecessary because of the ubiquity of school zones and the lack of viable defenses for drug offenders who stumble into them. Tennessee's drug-free zone laws do not include what's known as a mens rea—Latin for "guilty mind"—requirement. That means defendants are just as culpable if they had no idea they were in a drug-free zone, which in the state extend roughly three city blocks as the crow flies from designated areas.
The law applies even if one is driving down a closed-access highway that happens to pass through a school zone. Take the case of Danny Santarone: In 2011, a FedEx employee flagged a suspicious package (which turned out to be full of prescription opioids) addressed to Santarone. Police watched him arrive and pick up the package, but they waited to initiate a traffic stop until he was down the road, inside a school zone.
Santarone later received enhanced sentences for possession of oxycodone, cocaine, and heroin with intent to distribute. A Tennessee appeals court denied his appeal in 2015, ruling that "the state is not required to prove that the defendant knew that he was committing an offense within 1,000 feet of a school, nor even that school was in session at the time of the offense."
Like many U.S. drug laws, drug-free school zone statutes have a disparate impact in low-income and minority neighborhoods. This can be partially explained by the fact that cities, which have a higher percentage of minority populations than rural areas do, often have overlapping drug-free zones, since schools, parks, and other youth services tend to be located near low-income housing. Eleven states explicitly include public housing complexes in their drug-free zones.
Sentencing data from Tennessee show minorities are indeed disproportionately represented in school zone sentences relative to their share of the population. Tennessee is 17.1 percent black, but blacks make up 69 percent of all drug-free school zone offenders currently serving time in the state.
The disparities continue at the county level. For example, Knox County, Tennessee, is 6.8 percent black, but blacks make up 27.6 percent of all school zone sentences.
"Once you start looking at these things, you'll notice that in Knox County there are certain areas of town where there's a higher population density and a higher density of restricted zones," Wallace says. "Coincidentally, a lot of those places happen to be in a poorer section of town. Knoxville is a historically segregated city, so the majority of the African-American population lives in East Knoxville. There's a huge concentration of restricted zones in East Knoxville. I always joke that you can't swing a cat without it landing in a drug-free school zone."
He's right, too: 39 percent of the city is covered by a drug-free zone, but in poorer East Knoxville that figure is 58 percent.
State Senate Minority Leader Lee Harris (D–Memphis), who has been working to reform school zone laws, describes a huge gulf between how the laws affect rural areas and major cities like Memphis.
"You end up creating all these different zones, and it swallows the entire city," Harris says. "You compare that to what a rural county looks like. The other 91 rural counties in the state, the vast majority of their space is not in a drug-free school zone. I have to ask those who are concerned about justice and fairness, why should drug dealers who live in cities get 15 years while drug dealers who do the same crime get 29 months because they live in a rural area? At the end of the day, drug-free zones just penalize people for living in cities. I mean, you can't get 10 years for some homicides."
But this is not solely an urban issue. More than 13 percent of all Tennessee inmates serving drug-free zone enhancement sentences are from rural Maury County, population 28,000. Although only 4 percent of Maury County's total area is covered by drug-free zones, 21 percent of the area within city limits in the county is covered by a drug-free zone. Of the 58 inmates from the county who are serving these sentences, 45 are black, even though African Americans make up only 0.43 percent of all Maury County residents.
A disproportionate number of drug-free zone inmates come from rural Sullivan County as well. Although the county accounts for roughly 2.5 percent of the state's population, over 22 percent of all drug-free zone inmates were convicted here. More than half of these inmates are black, compared with only 2.6 percent of the county's population. Like Maury County, the total area covered by drug-free zones in the county is low (8.6 percent). However, 28 percent of cities within Sullivan County are covered by these zones.
Minorities also receive longer drug sentences than whites for school zone violations statewide. Sentencing data show that white defendants receive eight-year sentences on average, while blacks and Hispanics receive 11.6 years and 15 years on average, respectively. Out of the top 20 longest drug sentences for school zone violations, only two of the defendants were white.
This pattern isn't limited to Tennessee. A 2007 study by the New Jersey Commission to Review Criminal Sentencing found that "nearly every offender (96 percent) convicted and incarcerated for a drug-free zone offense in New Jersey is either Black or Hispanic." According to the report, overlapping drug-free zones had "a devastatingly disproportionate impact on New Jersey's minority community." At one point, roughly 50 percent of both Newark and Jersey City were covered by drug-free zones.
A study in Connecticut showed similar results. "Two of our big cities, Bridgeport and Hartford, are completely covered by these zones," says David McGuire, executive director of the state's American Civil Liberties Union chapter. "In New Haven, the only place that's not included is the Yale golf course."
A 2010 report commissioned by the Illinois General Assembly also concluded that the state's drug-free zone law had a disproportionate impact on minority communities. It found that nearly 90 percent of arrests for drug-free zone violations in Illinois involved nonwhite arrestees. In Florida, a 2011 report published by the state Senate's Committee on Criminal Justice found that black offenders made up 55 percent of admissions to prison for all drug offenses in fiscal year 2009, but they made up 88 percent of those admitted to prison for a drug-free zone conviction that same year.
When Memphis resident Rodgerick Griffin Jr. was arrested for possession with intent to distribute a sugar packet's worth of crack cocaine in 2009, he was originally charged with a Class B felony. But because the offense occurred three blocks from a school, it was elevated to a Class A felony. Instead of a maximum eight-year sentence with parole eligibility in under three, Griffin faced a minimum of 15 years in prison with no possibility of an early release. He would have faced less time in prison under Tennessee sentencing guidelines if he had been convicted of rape or aggravated robbery.
The outsized sentencing mandates in drug-free school zone laws give prosecutors incredible leverage. Rational defendants are more likely to take a plea deal, even if they believe they are innocent, when the punishment from losing at trial is much more severe than the deal being offered by the prosecutor.
"With the enhancement, what was happening was somebody might have a couple grams of cocaine, and they'd go to court, hoping to get probation for simple possession," Funk explains. "Their lawyer would then tell them it's a school zone case, and they're looking at 15 to 25 years in prison. The state offers them eight years to serve at 30 percent, or a 10-year probationary period or something. If the client persists, the lawyer has to say, 'Do you feel lucky? Because if you go to trial and lose, you won't be home for the next couple of decades.'"
Available sentencing data include only defendants who went to trial, not cases where prosecutors dropped school zone charges in exchange for a guilty plea. So there are almost certainly many more Tennessee inmates serving drug sentences longer than those they would have normally received because of deals struck with prosecutors under threat of school zone sentence enhancements.
"There's an astronomical amount of people who were threatened with school zone charges," Raybin says. "I can tell you, anecdotally, it goes on all the time."
Rodgerick Griffin ultimately pleaded guilty, caving to the threat of decades behind bars, and received eight years in prison with no possibility of an early release.
"His son will be 19, and Terrance has basically missed every milestone—going to kindergarten, fifth-grade graduation, high school graduation, college move-in day. He's missed so much."
Such deals are the rule, not the exception, in the criminal justice system. More than 97 percent of all federal cases end in plea deals, leaving only a tiny percentage to be disposed of at trial. In some states, an actual trial by a jury of one's peers, as guaranteed by the Constitution, is an endangered species.
McGuire notes that Connecticut's geographic area courts, which handle all misdemeanor and most felony cases in the state, had a total of 74,503 cases in 2016.
"How many of those cases do you think were disposed of at trial?" he asks, pausing for effect.
"103."
For a measure meant to protect children, drug-free zones have been awfully destructive for families.
Nashville resident Joi Davis' husband, Terrance, has been incarcerated since 2003 on drug-free school zone charges. Undercover police bought more than 20 grams of cocaine from him one night inside his apartment.
If he'd lived in a unit on the other side of the gated complex, he would have faced 12 years in prison for the drug charges, with the possibility of parole within four, and would likely be a free man today. But his actual residence fell just within a school zone, so he ended up taking a plea deal for 22 years. He had prior drug offenses, but no violent criminal history. It was, in fact, a somewhat generous deal from the prosecutors' perspective, considering the several other charges and maximum sentences they could have pursued against him.
"Boom, there he goes, a decade and a half of his life already gone, all because of a couple hundred feet," Davis, an employee at a charter school, says in a phone interview. "I know for a fact there's people who have committed crimes like second-degree murder and rape, and they have went home, whereas Terrance is sitting there twiddling his thumbs and patiently waiting."
"His son will be 19, and Terrance has basically missed every milestone—going to kindergarten, fifth-grade graduation, high school graduation, college move-in day," the 39-year-old adds. "He's missed so much."
Thanks to a judge's ruling, her husband will be eligible for parole in under a year, after he finishes the mandatory 15-year portion of his sentence. Davis says they have a five-year plan for after he gets out: a truck driving license, maybe their own business, a little log cabin somewhere nice.
Until his release, Davis works and counts the days. Some days she sends out 30 to 40 emails to state lawmakers about the injustice of Tennessee's school zone laws. She talks about turning her one-woman advocacy blitz into a nonprofit organization.
"It's not just affecting my family," she says. "There's plenty of other families out there. Some lawmakers really want change, but the ones voting against it need to see it's wasteful for taxpayers, it's tearing families apart, and it's so unnecessary."
Many states, both liberal and conservative, are now reconsidering their drug-free school zone laws, but lawmakers are reluctant to roll back legislation that's supposed to protect children.
In 2008, the Indiana legislature was considering a bill to expand its drug-free zones to include churches and bus stops. A group of freshmen from DePauw University, taking a class on public policy from former political science professor Kelsey Kauffman, testified at a committee hearing and brought along a map they had created showing what the result would look like.
The drug-free zones would have swallowed nearly everything in Indianapolis except the airport. As it stood, state laws already created what the students called overlapping "superzones."
The classmates were the only ones to testify against the proposal. After they revealed the map, the hearing was "absolute pandemonium for the next hour and a half," Kauffman says. The bill passed through the committee by one vote, but it died in the state Senate.
Groups of freshmen from Kauffman's classes continued to bring their maps to the legislature over the next several years, and in 2014, then–Gov. Mike Pence signed a law, over the objections of the state prosecutor association, shrinking Indiana's drug-free zones from 1,000 to 500 feet, reducing the sentences for school zone violations, and removing public housing complexes and youth centers from the designation.
Utah lawmakers passed a bill in 2015 that dramatically altered its drug-free zones, reducing their size from 1,000 feet to 100 feet and limiting their application to between 6 a.m. and 10 p.m. around schools, and only during business hours around other locations. Prior to 2015, the zones covered 10 percent of the entire state and made any drug offense except for possession a first degree felony if it occurred near a school, public park, amusement park, arcade, recreation center, church, shopping mall, sports facility, movie theater, playhouse, or parking lot.
Massachusetts lawmakers passed a bill in 2012 that reduced the size of drug-free zones from 1,000 to 300 feet and made them applicable only between 5 a.m. and midnight. Brownsberger said the effect on sentencing and the state prison population was dramatic, dropping the number of school zone–enhanced sentences by two-thirds or more.
"If you looked at the houses of correction populations going back six or eight years ago, you would have seen a lot of people doing school zone sentences," Brownsberger says. "Now, most people who are doing mandatory minimum sentences are there for drunk driving or gun charges. There just aren't a lot of school zone charges being booked."
Many advocacy groups would like to see drug-free school zones eliminated entirely or at least severely limited, but they've had to settle for compromises to assuage more conservative lawmakers. While several states have reduced the number of locations that turn the surrounding area into such a zone and have limited the types of offenses the statutes cover, none have shrunk the perimeter to less than 100 feet.
Harris, the Tennessee lawmaker, says Indiana is a model for his own reform efforts. A bill to reduce the Volunteer State's drug-free zones from 1,000 feet to 500 feet passed the state Senate last year but died in the state House. Legislators are trying again this year, with support from a coalition of conservative and liberal advocacy groups.
"It's an uphill battle in Tennessee," Harris says. "The good news is there are conservative states out there that are taking a look at these laws and making changes, because they're not a good use of resources."
Statistics in this story regarding age, race, sentence length, and the number of Tennesse inmates were derived from data obtained from the Tennessee Department of Corrections. Vector data on the size and locations of drug-free school zones were also obtained from the Tennessee state government. All of the data used in this story can be viewed and downloaded on Github.
The post The Myth of the Playground Pusher appeared first on Reason.com.
]]>In 1999, the state of Florida reinstated strict mandatory minimum sentences to crack down on opioid abuse. Thereafter, illegally possessing just 28 oxycodone pills could put a person away for no less than 15 years on a trafficking charge. The effort has been an abject failure.
In 2014, the Florida legislature tweaked the law in response to concerns that the tough sentences were mostly ensnaring low-level offenders. It now takes roughly 50 oxycodone pills to trigger a 15-year mandatory minimum.
But the reform was not retroactive. As a result, hundreds of inmates who were sentenced before the changes are serving far more time than they should be, and the state Department of Corrections is saddled with an aging prison population.
The post Florida Changes Harsh Sentencing Law, Too Late for Many Inmates appeared first on Reason.com.
]]>"There is no evidence that an individual DA in his office is any more punitive today than he was in 1974," explains John Pfaff, author of Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform. "We just have 30,000 of them instead of 17,000 even though the crime rate is roughly the same as it was in 1974. They've got to do something. They can't just play minesweeper all day and keep their jobs."
On May 25th, 2017, at Reason's Washington, D.C. office, Reason hosted a panel discussion with Pfaff and Ken White, former assistant United States attorney and co-founder of the blog Popehat. Moderated by Lauren Krisai, director of Criminal Justice Reform at the Reason Foundation, the discussion touched on the power of prosecutors in the criminal justice system, how prosecutors? ?have ?serve?d? as barriers to meaningful ?criminal justice? reform, and whether an influx of forward-looking district attorneys could change the status quo.
Edited by Ian Keyser. Cameras by Mark McDaniel and Todd Krainin.
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]]>On Monday night, Arkansas executed Jack Jones and Marcel Williams, the first time two prisoners were executed on the same day since Aug. 10, 2000 in Texas.
These were executions of convenience. Arkansas had scheduled an unprecedented eight executions over the course of 10 days because the drugs the state had obtained through means shrouded in secrecy had a "use by" date of April 30th.
All of the men who are dead or were scheduled to die in Arkansas had issues with mental illness, intellectual disabilities, traumatic upbringings, and inadequate legal representation for their cases.
Last week, Arkansas executed Lendell Lee, a man who received woefully inadequate representation throughout his case and who claimed his innocence until his death. The state refused to test new DNA evidence ahead of his execution.
A fourth inmate, Kenneth Williams, is scheduled to be executed on Thursday. Stays for the other four inmates scheduled to die this month have been issued for a variety of reasons– including to test new DNA evidence and to decide whether one inmate is too mentally impaired to be executed.
This is the first time a state has scheduled multiple executions in a rush to kill as many inmates as it could before drugs expired. States have in the past gone to extreme lengths to obtain such drugs—in one case buying drugs from a man in India with no pharmaceutical background.
Jones had been sentenced to death for the rape and murder of Mary Phillips in 1995. Jones had left Phillips' 9-year-old daughter for dead, but she survived.
Jones had once been raped by three strangers who had abducted him. He had twice attempted suicide and months before the murder, he voluntarily committed himself to a mental hospital in Little Rock.
Defense attorneys for Jones presented none of his personal history during his trial.
Jones, his appeals exhausted and his execution cleared by the Supreme Court "had been pushed into the death chamber in a wheelchair having had one leg amputated as a result of diabetes," according to the Guardian. After making a statement, the execution began at 7:06 p.m. At 7:20 p.m. the state pronounced Jones dead.
In an emergency stay motion filed on Williams' behalf, lawyers allege the Arkansas Department of Corrections botched Jones' execution. "Infirmary staff tried unsuccessfully to place a central line in Mr. Jones's neck for 45 minutes before placing one elsewhere on his body."
They "did not wait 5 minutes to perform the consciousness check." And after five or six minutes after the execution drug was injected, "Mr. Jones was moving his lips and gulping for air," which lawyers say "is evidence of continued consciousness."
A federal district court judge granted Williams a temporary stay but just after 9:30 p.m. U.S. District Judge Kristine Baker lifted the stay. The state pronounced Williams dead at 10:33 p.m., 17 minutes after the execution began.
J.R. Davis, a spokesperson for Arkansas Governor Hutchinson's office told reporters for KATV 7 that all three executions the state has carried out so far "went flawlessly."
Williams had been sentenced to death for the rape and suffocation of 22-year-old mother, Stacy Errickson, in 1994. Williams raped two more women, both of whom survived. One of the victims, Dina Windle, appeared at Williams' clemency hearing last week pleading for the state to spare his life.
Governor Asa Hutchinson refused to speak with Windle on the day of Williams's scheduled execution.
Williams was also a victim of sexual abuse. His mother beat him daily as a child, and when he was 12-years-old, she pimped him out to older women in exchange for food. As an adolescent, Williams was gang-raped while in an adult prison.
Williams' attorney, Bill James, just out of law school, failed to present any of his history at the trial. "I'm sorry we didn't do the things that we needed to do to save you," James told Williams later.
In 2006 U.S. District Judge Leon Holmes overturned his 1997 death sentence, saying a jury might have recommended a life sentence had it heard Williams' terrible childhood story.
The 8th Circuit Court of Appeals cited the Antiterrorism and Effective Death Penalty Act (AEDPA) enacted by President Bill Clinton for overturning Holmes, which limited the habeas rights of inmates. Under the law, the Court concluded, Holmes shouldn't have been granted an evidentiary hearing on these mitigating factors. In 2010, the U.S. Supreme Court declined to hear the case.
The last time a state attempted to execute two death row inmates back-to-back, in 2014, Oklahoma called off the second execution after the first struggled for 43 minutes with the same drug combination used Monday in Arkansas and died of a heart attack.
Of the few states that still carry out executions in the United states, several have rushed to execute men and women as a result of an execution drug "shortage." Several of these inmates have had incompetent lawyers, who have had documented cases of mental impairment or abuse, who bordered on mentally disabled, who had been abused as children, experienced deep trauma in their lives, and who have reformed themselves while incarcerated.
Rarely do we execute men or women whose "extreme culpability makes them the most deserving of execution," as the Eighth Amendment to the U.S. Constitution requires.
Arkansas is no different here.
The post In a Rush to Use Expiring Drugs, Arkansas Executed Two Men on Monday appeared first on Reason.com.
]]>On April 11, 2002, Cynthia Powell entered the criminal justice system for the first time in her life, for what could be the rest of her life.
Two detectives for the Sunrise Police Department in Florida had arrested Powell in the parking lot of a Starbucks for agreeing to sell 35 of her Lorcet pills—basically Tylenol with a small amount of hydrocodone—and some of her Soma pills (a muscle relaxant) to an undercover police officer.
Powell, a 40-year-old African-American woman, had no prior convictions and no arrest record. Her occupation was listed on the arrest report as "unemployed." On her criminal history sheet, it's listed as "disabled."
"Anyone who knows my mother knows she's a sweet lady," Powell's daughter, Jacqueline Sharp, says in an interview with Reason. "Even before she went, people would drop their kids off for her to watch them."
In many other states, Powell would have been a candidate for a diversion program or maybe probation. Under Florida's ruthless anti-opioid laws, she received a mandatory minimum of 25 years in prison on charges of drug trafficking and possession with intent to sell.
As fentanyl and heroin use have spiked across the U.S. in recent years, lawmakers and prosecutors have responded by pushing tough new sentences to crack down on dealers and users.
The Pennsylvania Legislature is advancing a bill, pushed by state prosecutors, to restore mandatory-minimum sentences for drug crimes. An Ohio town has started filing misdemeanor charges of "caus[ing] serious public inconvenience or alarm" against overdose victims, simply for receiving treatment from emergency first-responders.
U.S. Sen. Kelly Ayotte (N.H.) introduced a bill last year to dramatically lower the weight threshold to trigger a five-year mandatory federal prison sentence for fentanyl possession. And in Florida, where lawmakers seem to have exceptionally short memories, a state senator has introduced a bill, with the backing of the Florida Sheriff's Association and the Attorney General's office, that would create harsh new penalties for fentanyl trafficking.
But before legislators pass new laws, they should look at Florida's recent history. Two decades ago, the state enacted strict mandatory-minimum sentences to combat prescription pill abuse. In an effort to shed light on the effect of those laws, Reason pored over the cases of every current inmate in the state admitted for trafficking hydrocodone or oxycodone pills. Those cases, rarely examined at the macro level and never at the individual level, show Florida's war on prescription pain medicine has been an abject failure for 20 years and counting.
A Reason analysis revealed that there are more than 2,000 inmates serving sentences in the state for trafficking oxycodone/hydrocodone. Although Florida legislators passed the laws with the intention of going after large-scale traffickers, 63 percent of those currently serving time for pill trafficking offenses are first-time inmates like Powell. Many, like Powell, were set up by confidential informants who started working for the police after their own arrests.
The mandatory-minimum sentences stripped judges of their discretion, saddled the state with an aging, expensive inmate population with no possibility of early release, and have been woefully inadequate at getting pills off the streets or treating addicts, many of whom are now turning to more powerful opioids like heroin and fentanyl.
Mandatory Minimums Were Supposed to Crack Down on High-Level Dealers
To understand why Cynthia Powell is in prison today, and how Florida settled on its approach to opioid use, you have to return to the mid-1990s, when Florida gained a reputation as ground zero of the opioid epidemic. After OxyContin entered the market in 1996, clinics that dispensed the powerful painkiller began to proliferate throughout south Florida. The state's Interstate 75 corridor became known as the "Oxy Express."
In 1993, the state had abolished mandatory-minimum sentences for all but the highest-level drug trafficking offenses. But in 1999, state lawmakers reinstated its mandatory minimums in an attempt to crack down on what supporters described as high-level dealers.
Former state representative Victor Crist, a sponsor of the bill that reinstated the minimums, said during a committee hearing, "We're talking about the person who's growing three barns full of marijuana, or bringing in a boatload of cocaine. We're talking the major players who are dealing and selling these drugs."
Not when it comes to prescription pain medication. Under the 1999 laws, it took only 4 grams of oxycodone or hydrocodone—roughly eight pills—to trigger a drug trafficking offense that carried a mandatory-minimum term of three years in prison and a $50,000 fine. For a minimum 25 years and $500,000 fine, a person needed to illegally possess or sell 28 grams, or roughly 54 pills, which is less than half of a month's prescription for long-term pain patients like Cynthia Powell, who was prescribed this medication for her diabetic nerve pain.
The result was not a crackdown on high-level dealers, but a surge in lengthy sentences for low-level offenders like Powell.
There were 2,310 inmates serving sentences in Florida for "trafficking" opioids, the vast majority of which were convicted for hydrocodone and oxycodone, as of December 2016, a Reason analysis found. Prior to 2014, the Florida Department of Corrections (DOC) classified all opioid trafficking convictions with the same offense codes, lumping heroin and morphine with oxycodone and hydrocodone. However, a minority of inmates in 2010—6 percent—were incarcerated for trafficking substances other than oxycodone or hydrocodone, such as heroin, according to a 2012 report by the Florida Legislature's Office of Program Policy Analysis and Government Accountability (OPPAGA), and Reason's estimate assumes the inmate population has a similar makeup today.
Of the more than 2,300 Florida inmates serving time for opioid trafficking, the overwhelming majority—63 percent—have never been to prison before. Another 20 percent were previously incarcerated, but for a drug or property crime only. Just 17 percent had been previously incarcerated for a violent offense. Some 435 are over the age of 50, which is the age prisoners are defined as elderly in Florida. Of those, 53 percent have never been to prison before, and 26 percent have been imprisoned previously for a drug or property crime only.
What these numbers show is that, more often than not, Florida prosecutors used opioid trafficking laws to imprison the bottom rung of the drug trade—addicts or people with prescriptions who sold on the side for extra cash—rather than high-level dealers.
More often than not, Florida prosecutors used opioid trafficking laws to imprison the bottom rung of the drug trade.
The 2012 OPPAGA report confirms this. It found that most oxycodone and hydrocodone trafficking convictions were based on illegal possession, sale, or distribution of pills "equivalent to one or two prescriptions." For those convicted and sentenced for trafficking hydrocodone, the report stated, "50 percent were arrested for possessing or selling fewer than 30 pills and 25 percent were arrested for fewer than 15 pills." The median number of pills involved with oxycodone trafficking convictions was 91. That's less than a month's supply for many long-term pain patients, which typically ranges from 90 to 120 pills.
"You're not talking about bringing kilos of heroin in through the Miami shores or something," says Greg Newburn, the state policy director of Families Against Mandatory Minimums (FAMM), an advocacy group working to reform Florida's sentencing laws. "You're talking about people who either illegally possess or sell one or two bottles of painkillers and are getting busted for trafficking. It's a tremendous number of very low-level users and low-level dealers, often the same people."
How Cops Use Confidential Informants to Trap Pain Patients
It usually starts like this: Someone gets a call, maybe from a friend or acquaintance, or a guy who knows a guy, who's looking for pills. They'll pay good money, and they need them bad. They might have a sob story.
The confidential informant who set up Cynthia Powell called her repeatedly begging for pills and saying she was sick, according to a statement Powell gave to police after her arrest. "She kept on calling me, kept on calling me.…She told me she had throat problems, had a bad flu, because she sounded real bad," Powell told the police.
"I don't even know nothing about this lady," she continued. "The only way I know about her was because of a friend of mine. I'm on a lot of medication. So I told her no. She said, 'Cynthia, please, please just give me a little pill.'"
Confidential informants have played a major role in the state's opioid busts. Some 62 percent of those arrested for opioid trafficking in the state were set up by an undercover police officer or confidential informant, according to the 2012 OPPAGA report, which looked at a sample of 194 offenders put in prison between 2010 and 2011. In 16 percent of the cases, offenders were arrested after they were searched "during law enforcement contact," 11 percent were arrested after being reported by a pharmacist for possible fraud, and 8 percent were arrested during a traffic stop.
"They'll just badger them and badger them to sell the pills," Newburn says. "And if somebody happens to be down on their luck, or maybe between jobs or whatever, and they've got this bottle of pills…"
Once the transaction happens, and sometimes even before money and pills change hands, as in Powell's case, the police move in. Usually the whole exchange is caught on tape. Since it takes less than a single bottle of pills to successfully prosecute someone as a drug trafficker in Florida, police are just as happy to go after those cases as someone with a trunk full of weed.
The 35 hydrocodone pills Powell offered to sell the undercover officer exceeded the 28-gram threshold, meaning she faced a 25-year mandatory-minimum sentence under Florida law at that time.
"Doing Work"
After her arrest, Powell had three choices. She could plead not guilty, but the state's attorney had her dead to rights, and if she lost she would go down for the full 25-year sentence.
She could take a plea deal offered by the state's attorney for 12 years in prison.
Or she could take a third, tantalizing option offered by the prosecutor. She could become a confidential informant for the police, same as the woman who set her up.
The potential reward was high—but so was the risk. If she succeeded, she might only do a few years in prison, might even get off on probation. But if she failed to provide information leading to an arrest, she would be sentenced to the full 25.
In most trafficking cases, Florida prosecutors ask defendants if they're willing to "do work." The official nomenclature is "providing substantial assistance" to law enforcement.
The "substantial assistance" provision was part of the 1993 bill that repealed mandatory minimums for most trafficking offenses through 1999, but it stuck around after the minimums were reinstated. With both mandatory minimums and substantial assistance agreements on the table, prosecutors have enormous sway over the potential sentence defendants may receive. According to a court filing in one case reviewed by Reason, a defendant said the details of her substantial assistance agreement were as follows: If she helped police with one arrest, she would get two years in prison and 10 on probation. If she gave assistance resulting in three arrests, it would be 10 years of probation and no prison time at all.
But these agreements aren't effective at taking traffickers off the street. Regular dealers have little trouble finding new targets for narcotics police, while small-time users and sellers have to hustle or risk catching the full mandatory-minimum sentence. So a well-connected large-scale dealer stands a significantly better chance of avoiding prison entirely.
Prison population data confirms this phenomenon. Lower-level offenders convicted of a drug trafficking offense serve sentences above the mandatory on average, while inmates convicted of higher-level trafficking offenses tend to serve sentences below the mandatory, according to a 2009 report published by the Florida Senate Committee on Criminal Justice. The reason, the report notes, is that these lower-level offenders have little to no information about other dealers or operatives in a drug trafficking organization, making them unlikely to benefit from a "substantial assistance" reduction.
That dynamic is one of the reasons why Cynthia Powell was sentenced to so much prison time. Against the advice of her attorney, she plead guilty and entered into an agreement to provide substantial assistance to the Sunrise Police Department, working with the same detectives who arrested her.
Powell's daughter, Jackie Sharp, doesn't think her mother even understood what she was signing when she entered into the agreement. Powell dropped out of school in the 11th grade to care for Sharp, and her reading and writing skills are limited. "She was receiving disability, and once they evaluated her she was not even able to sign for her own checks," Sharp says. "Her social security and disability checks came in my name, care of her. Someone else should have been back there with her with the judge and prosecutors. She was incompetent."
One former public defender who asked not to be named says it's "standard operating procedure" for police to target individuals with addiction or dependence issues. "There's not enough large-scale drug dealers to substantiate the funding. I'm not saying they are creating the people, but they're targeting people who are obviously sick."
One former public defender says it's "standard operating procedure" for police to target individuals with addiction or dependence issues.
Complicating matters further, the Sunrise Police Department didn't even have painkillers for Powell to sell. Most individuals who enter into substantial assistance agreements just have to try to sell whatever police departments have on hand.
"She always wanted to sell Lorcets because that's what she was arrested for to begin with…and I told her we didn't have that many Lorcets in our locker," Sunrise Police Detective Ben Hodgers would testify at Powell's sentencing hearing. "However, we did have 10,000 ecstasy pills, 30 kilos of cocaine, 35 pounds of marijuana, whatever she wanted to sell."
Powell's daughter and her public defender say she couldn't set up a deal because she wasn't a drug dealer to begin with.
Powell, in other words, was a 40-year-old woman with no criminal history, who got by on disability and social security checks, who agreed to sell a bottle of pills she had a prescription for, and who probably only had a muddled understanding of the plea agreement she signed, who was now being asked by police to move cocaine and ecstasy. Unsurprisingly, Powell had nothing to show for her work. The state's attorney took her back to court, this time for sentencing.
Mandatory Minimums Give Prosecutors Enormous Power
At Powell's sentencing hearing, prosecutors played dumb.
"I don't know why Ms. Powell has chosen this course. I do not know," Assistant State Attorney John Gallagher stated. "I think I offered her 12 years just flat-out if she pled up straight to the charges. She said she didn't want to do that, she said she really thought she had people that were dealing drugs that she could introduce to the police. And, Judge, I do it every time, OK. I literally try to talk these people out of getting into these harsh sentences. The legislature has deemed this to be such a serious crime that her mandatory-minimum prison sentence is 25 years [at] Florida State Prison and there is a $500,000 fine that accompanies trafficking."
One thing Gallagher neglected to mention was that, as a state's attorney, he had full freedom to decide what charges to bring against Powell. He could have dropped the trafficking charge and prosecuted her solely for possession with intent to distribute. He could have declined to bring the charges in the first place. (Gallagher did not respond to a request for comment.)
Because these offenses carry mandatory-minimum prison terms upon conviction, prosecutors wield enormous power in these cases. The only way an individual can receive a sentence below the mandatory minimum is if the prosecutor negotiates a plea bargain in which lesser charges are agreed to, which means a defendant gives up her right to a jury trial. If a person declines to plead guilty to lesser charges and is subsequently convicted of a trafficking charge, she must be sentenced to the mandatory minimum term, unless she provides substantial assistance. There are no other options for receiving a shorter sentence than what's required by statute.
At her sentencing hearing in 2003, Powell begged for more time to provide assistance to the police, but unlike the prosecutor, the judge had no choice in the matter. "They don't want to work with you any longer," Judge Ana Gardiner explained. "I cannot force them to work any longer, and I don't know of any other legal reason, any legal grounds for me to be able to depart from the minimum mandatory. So whether I feel for you, what I feel about your priors, whether I have a great heart about your daughter, yourself, your situation, you pled open to this court, you pled guilty to these charges, you have not done substantial assistance, now you need to be sentenced."
Apparently still not grasping the severity of the situation, Powell asked the judge if she could be put on house arrest. "I'm sorry, Ms. Powell, there's nothing else I can do," Gardiner responded. "It's not an easy thing, but I can't do anything else."
And with that, Cynthia Powell, a first-time nonviolent offender, was sent to prison for a mandatory minimum of 25 years. She is still there today, housed in a minimum-security facility. Her daughter says the other inmates call her mom.
Sentencing Reform That Failed to Help Those Already In Prison
Powell was unlucky in many ways—among them, the year she was sentenced.
In 2014, the Florida legislature agreed to a modest increase in the weight threshold necessary to trigger these harsh sentences for trafficking oxycodone and hydrocodone. The new rules were put in place in response to concerns, raised by the 2012 OPPAGA report, that the state's harsh sentences were mostly ensnaring low-level offenders.
"We were able to come to a compromise with the prosecutors. Those are always the ones who staunchly oppose any type of significant or meaningful reform when it comes to sentencing," says the bill's sponsor, Florida state Rep. Katie Edwards. "We were looking at it and saying: Does a person who is an addict that has, you know, seven pills in their possession without a prescription—do I want that individual sentenced to three years in state prison where the judge has no discretion? And I think everybody realized: Oh my goodness, this was stupid."
But the thresholds remain quite low. For example, a person can be sentenced to a mandatory minimum of 15 years for illegally possessing or selling roughly 50 oxycodone pills. This is much lower than the median number of pills, 91, convicted offenders possessed or sold at the time of their arrests, according to OPPAGA. And individuals sentenced under the old thresholds—including all of the individuals profiled here—are not eligible for resentencing. That creates a disparity in the system.
"Although the threshold weights for certain painkillers were increased, it provides no accommodation for people who were already serving their sentence," says Deborrah Brodsky, Director of the Florida State University Project on Accountable Justice. "As it stands, under the current legal and constitutional framework, this results in unequal application rendered through the luck of a line on the calendar, rather than an evolved standard that the state of Florida now embraces."
Powell and others like her are stuck serving outdated sentences that the state has subsequently judged too harsh in part because of something known as the "savings clause" of the Florida Constitution, which bars the legislature from making such sentencing changes retroactive. So unless inmates are miraculously granted clemency from the governor—and the current one has done so for just five inmates since taking office in 2011, only three of whom have been released from prison so far—those sentenced under Florida's old opioid trafficking thresholds have no hope of an early release.
The only way to allow inmates to be resentenced after criminal statutes are changed is by repealing or amending the savings clause.
Every 20 years, the Florida Constitutional Revision Commission meets and votes on changes to the constitution—this year being one of them. The commission has been appointed, and the members will meet over the next few months. But there's little hope that this particular reform will even be discussed. "Right now I would guess it's not at the top of their list," says Democratic Florida state Sen. Jeff Clemens.
For inmates sentenced before the 2014 mandatory-minimum revisions, their punishment now seems all the more capricious and arbitrary.
That includes people like James Caruso, who in 2002 was sentenced to a mandatory 25 years in prison for trafficking hydrocodone, plus a $500,000 fine. "Under the new law I would be subject to a seven-year prison term and $100,000 fine," he writes in a letter to Reason. "I have served more than twice that and owe five-times the fine. A person in Florida could literally do the exact same thing today that I did in 2002 and still get out of prison before me…And if you believe the police reports, I was just a lookout."
And it includes Cynthia Powell. If she were convicted under the new thresholds, she would've received a 15-year mandatory minimum prison sentence, and would have already been released. Instead, she has over 6 more years to go before she's projected to be released, by which time she'll be 61 years old.
"When you look at the fact that we've changed the law, and now there are people serving 15- and 25-year sentences who would have only served three- or seven-year sentences—it's a crime to keep those people locked up just because some anachronistic constitutional provision ties the hands of the legislature," says FAMM's Newburn. "That provision was passed in 1885."
The Victims of Florida's Mandatory Minimums
Cases like Powell's are common in Florida's prison system, where state drug laws have ended up ensnaring the sick, the elderly, and the desperate. The particulars vary, but the essence of the stories—which invariably involve some combination of small amounts of drugs, mandatory minimums, mental health issues, and confidential informants—are fundamentally the same.
Mary Nowling, who just celebrated her 65th birthday from prison, was homeless, on disability, and staying at a male friend's house when, according to trial transcripts, he pressured her into selling her Oxycodone pills to a confidential informant so Nowling could pay the friend rent he suddenly said she owed. She said the pills were prescribed to her after back surgery for a degenerative back bone loss, according to court records. She was convicted of drug trafficking by a jury and received a mandatory-minimum 15 years in prison. Her projected release date is in 2022; she'll be 70 years old. Under the 2014 thresholds, she would've received a mandatory minimum of seven years and would be a free woman this year.
"It's a crime to keep those people locked up just because some anachronistic constitutional provision ties the hands of the legislature."
Inmate William Forrester was sentenced in 2009 to a mandatory-minimum 15 years in prison for trafficking oxycodone and obtaining a substance by fraud. In his case, a pharmacist filled a prescription for 120 oxycodone pills. When he came back to fill a second prescription, the pharmacist called the doctor to verify. When the doctor said he did not authorize either prescription, Forrester was arrested for trafficking the meds he had obtained the month before, as well as for forging the current prescription. Despite the trafficking charge, there was no evidence he intended to sell the pills.
At Forrester's sentencing hearing, the judge had no choice but to sentence him to the mandatory-minimum term. He told Forrester that if drug rehabilitation "was an option, then certainly we would talk about it. But my hands are tied by the law, and I have to sentence you to 15 years, and there's no ifs, ands, or buts about it. The legislature has said for this particular crime, we prescribe a fixed sentence. It doesn't give me A, B or C. I've only got A."
"I had no idea such long sentencing laws for not selling pills were even in existence," Forrester writes in a letter. "I thought 'drug trafficking' laws were for people found guilty of huge quantities of drugs such as moving it in boats, planes, trunks of cars, etc." Forrester, now 60, suffers from multiple health issues and had a lung removed due to cancer before his arrest. If he survives until his projected release date in 2021, he will be just shy of 65 years old. Had he been sentenced under the 2014 thresholds, he would've gotten out last year.
Or take the case of Todd Hannigan, now 49, a troubled man who in 2009 decided to take his mother's bottle of prescription Vicodin and a six-pack of beer, to find a park bench to sit on, and to commit suicide by overdose. Police arrested him before he could complete the act, but instead of mental health treatment or drug rehab, Hannigan was sentenced to 15 years in prison–the legal minimum–for trafficking hydrocodone, despite having no intention to sell the pills.
As in Forrester's case, Hannigan's judge voiced frustration as he handed down the mandatory sentence. "I do think this is an inappropriate sentence under these circumstances," the judge said. "The legislature has, in its infinite wisdom, decided to transfer a significant amount of what was once judicial discretion to the prosecutorial arm of this state. There's nothing I can do about that. There's nothing I can do about that at all….Under this set of circumstances, this court does nothing more than perform an administerial function. I sign the papers. I'm on autopilot."
A judge expressed similar sentiments in 2010 to Nancy Ortiz, a then-49-year-old woman with a documented history of mental health issues. She was arrested after she sold some of her prescription pain medication to an undercover officer.
"Ms. Ortiz, I'm very sorry that you got caught up in what you got caught up in," the judge said as he sentenced her to a mandatory 25 years. "And I take no pleasure in imposing that sentence. Now as I said, I think you should be punished for your crimes. I think that the sentence that the legislature requires for this offense is in some cases not proportionate to the criminal activity, and I think this is one of those cases, but I don't have any discretion in the matter." Ortiz is now 57 years old. The earliest she can be released is in 2032, when she will be 72.
Florida lawmakers "think they're getting Pablo Escobar off the streets of Tampa or Miami, and they wind up getting Suzie Schoolteacher going up the road for a year and a day in Florida state prison," says David Knox, a former prosecutor and now a Tampa defense attorney. "I don't know if people care to change it, but I can tell you a lot of the state attorneys are bothered by it."
"It's one thing where you have a drug dealer—you know who they are, they've got the cocaine press in their house, and people are coming and going at all hours of the day," Knox continues. "They knew what they were getting into when they started dealing drugs. It's another when you've got a person who's pulled over and their car is searched. You got some pills here? You have a prescription? No? Oh, well, tough. You're arrested for felony trafficking of oxycodone, you've got a $10,000 bond, and you're looking at a mandatory three years in prison."
A Failed Policy
Florida's mandatory minimums were intended to stop high-level traffickers and reduce opioid abuse in the state, but according to the Journal of the American Medical Association, prescription drug overdose deaths in Florida increased more than 80 percent between 2003 and 2009. At the same time, prison admissions for trafficking prescription pills quadrupled between 2005 and 2011. Yet in 2010, after years of prosecuting offenders like those described in this story, Florida still had 93 of the top 100 oxycodone-dispensing doctors in the U.S.
Overdose rates and prison admissions for oxycodone and hydrocodone began falling in Florida in 2011, following a crackdown on so-called "pill mill" doctors and clinics. But patients suffering from chronic pain now have a harder time getting legal relief—and overdose deaths for cheaper and more readily available drugs like heroin and fentanyl have skyrocketed. Heroin-caused deaths in the state rose 1,400 percent, from 48 in 2010 to 733 in 2015, according to reports by the Florida Department of Law Enforcement. Over the same period, fentanyl-caused deaths rose by 433 percent. The crackdown on prescriptions has meant that users simply turn to other, more dangerous drugs.
Meanwhile, those unlucky enough to be caught before 2014 continue to lose years of their lives in prison. In the end, the state has been saddled with an aging, expensive prison population, while families are left without loved ones and inmates like Cynthia Powell, who turns 55 next month, are left with no hope of getting out before the best years of their lives are gone. It's hard to conclude the policy has been anything but a total failure.
Powell has missed a lot on the outside since 2003. "Even when I had my kidney transplant, my mom couldn't even be there for me because she was incarcerated," Sharp, her daughter, says. "I had to beg the warden to talk to her before I went in for surgery."
When Powell's father died, Sharp says the prison wouldn't give her furlough to attend the funeral unless the family would pay for four or five guards to watch her. She would have been shackled in any case, but the family couldn't afford it. Powell missed the funeral.
"She's been in prison for 16 years now," Sharp says of her mother. "That's just crazy." Sharp says her mother isn't doing well in prison. "When I go to see her, I tell her to keep praying, and I'll keep praying, and that's all we can do."
The post How Florida Entraps Pain Patients, Forces Them to Snitch, Then Locks Them Up for Decades appeared first on Reason.com.
]]>This year, legislation has been introduced in at least 29 states that would increase penalties for heroin and fentanyl-related offenses, or allow for individuals to be held criminally liable or charged with murder/manslaughter when a person they supplied with heroin overdoses and dies.
The most disheartening aspect of this new sweep of proposed legislation is some of the state legislators who filed these bills have, in previous years, been sponsors of major sentencing reform legislation that has been enacted in their states, while others have voted for it.
Many of the criminal justice reforms that have been passed at the state level over the past few years have shortened sentences for those convicted of nonviolent offenses, or have diverted low-level offenders from prison and into rehabilitative treatment or other alternatives to incarceration.
The new bills show how easy it is for legislators who appeared to have accepted the notion that relaxed sentences result in smarter crime policy to fall into old punitive, tough-on-crime habits.
In Kentucky, a bill was filed that would significantly increase penalties for individuals who sell any amount of heroin/fentanyl, an offense that would now be considered trafficking. This week, the bill passed the Senate unanimously. The legislation will undo some of the reforms that were passed in 2011 as a part of a comprehensive criminal justice reform bill that received support from a partnership between The Pew Charitable Trusts and the Federal Bureau of Justice Assistance.
The Senate bill sponsor, Sen. John Schickel (R-Boone) voted for that comprehensive sentencing reform legislation, as did Kentucky's Senate President, Robert Stivers (R-Manchester).
Speaking on the proposed legislation, Stivers said that this new bill would probably cost "in the tens of millions of dollars" but that "it is worthwhile to send a message—it's time for this to stop at whatever level for whatever drug it may be."
In 2015, Alabama enacted legislation aimed at reducing prison overcrowding, requiring low-level, nonviolent drug and property offenders be diverted from prison into alternative programs. This "Justice Reinvestment" legislation was put forward as a result of a partnership between the legislature and The Pew Center on the States and the U.S. Department of Justice.
This year, however, the same Alabama legislators that sponsored the comprehensive reform bill are in full freak-out mode when it comes to heroin.
A bill filed this year by Sen. Cam Ward (R-Alabaster) would create mandatory minimum sentences for "trafficking in fentanyl," which includes possession of a small amount of this drug or any mixture (which could include heroin). Astoundingly, the bill creates a mandatory minimum sentence of life without the possibility of parole for trafficking in just 28 grams.
"Even if it did increase the numbers on incarceration, that's okay, because this is something we need to crack down on," Ward told the Alabama Media Group.
In Idaho, Rep. John Gannon, a Democrat who voted for a criminal justice reform bill that was passed in 2011 as a part of a Justice Reinvestment initiative, sponsored a bill that would charge individuals who sell heroin to someone who dies from overdose with second degree murder—a mandatory minimum 10-year prison sentence in the state.
Other states are introducing similar bills to allow for murder or manslaughter charges for those who sell or give heroin to someone who later dies from an overdose, while others have steadily increased the number of prosecutions for these individuals, as noted in a post last year.
In Connecticut, a state that has seen its prison population at its lowest point in decades and that has enacted many positive reforms in recent years, three bills have been introduced that would increase penalties for individuals who sell heroin to someone who fatally overdoses. Two of those bills would "hold dealers criminally liable," while the other would allow dealers to be charged with homicide.
In Maryland, the governor put forward a bill that creates a new felony offense for when someone provides or sells heroin, resulting in a fatal overdose. This new offense carries up to 30 years in prison.
Prohibition and increased penalties for heroin related offenses will not solve any heroin crisis, it will only further compound all the problems legislators think it will fix. As similar responses to past drug crises have shown, these tactics only result in more loss of life, more incarceration, more spending on prisons, more wasted taxpayer dollars, and more failure. As long as heroin hysteria exists, we'll continue to see the same kind of wrongheaded policy responses.
The post Legislators Who Supported Criminal Justice Reform Now Sponsoring Tougher Heroin Bills appeared first on Reason.com.
]]>A scientist at the Oregon state crime lab is accused of stealing pills submitted as evidence by law enforcement for analysis and testing. She faces federal charges and was put on leave last fall. But because this analyst worked on roughly 1,500 cases, all her work is now considered "tainted."
Oregon State Police are investigating the same lab for another possible scandal. According to a letter issued by the department, a forensic scientist matched a fingerprint without following proper procedures, then altered his report to make it seem like he had. It's unclear how many cases this analyst worked on.
In Broward County, Florida, a whistleblower accused the crime lab of overstating the significance of DNA tests that yielded inconclusive results. This same crime lab has been the subject of multiple internal affairs investigations after an analyst used tainted drug evidence in several cases.
And a New Jersey state judge recently stated that the nearly 15,000 drug convictions one crime lab analyst worked on may be tainted after it was discovered he faked the results of a marijuana test.
The post Forensics Failures appeared first on Reason.com.
]]>The research showed that 6,724 officers were arrested between 2005 and 2011. Some 41.5 percent were on duty at the time of the offense. The most serious offenses were driving under the influence, aggravated assault, forcible fondling, and forcible rape. Over 12 percent of officers had more than one case in the count, either because their crimes had more than one victim or because they were arrested more than once in the six-year span.
Roughly 42 percent of these cases resulted in a known criminal conviction. Over half of the officers were suspended (33.1 percent) or resigned (25.4 percent). In only 28 percent of the cases were officers actually fired; in 13 percent of the cases, no action was taken at all. The highest rates of arrest came from the New Orleans Police Department, the Milwaukee Police Department, the Memphis Police Department, the New Mexico State Police, and the Pittsburgh Police Department.
"Our data directly contradicts some of the prevailing assumptions and the proposition that only a small group of rotten apples perpetrate the vast majority of police crime," the authors concluded.
The post Cops Out of Control appeared first on Reason.com.
]]>What if you committed a crime, got caught, and served time? Most people would say you had paid your debt to society. But for certain drug, property, and violent crimes, incarceration is frequently accompanied by a fine—with the first payment typically due right after you walk out of prison.
In Florida, for instance, an individual caught selling just seven grams of oxycodone (the equivalent of roughly 14 five-milligram Percocet pills) can receive a three-year mandatory minimum prison sentence and a $50,000 fine. Fifty five-milligram Percocet pills—less than a month's prescription in some cases—will set you back 15 years and an extraordinary $500,000.
Legal financial obligations, which include fines, court user fees, restitution, and collection charges, exist in every state, in Washington, D.C., and at the federal level. These fines and fees were built into state and federal laws for a variety of reasons: sometimes to serve as a deterrent, sometimes to provide compensation for victims, and sometimes purely because someone thought incarceration wasn't punishment enough. According to sociologist Alexes Harris, author of A Pound of Flesh (Russell Sage Foundation), legal debts are also imposed on people "to help reimburse the state for costs resulting from their criminal behavior, including the costs of arresting, prosecuting, and punishing them." That's right: individuals are sometimes forced to pay the state for nabbing them and locking them up.
Jurisdictions across the United States typically base monetary sanctions on offense type—either set by statutes or through judicial discretion—and do not take a defendant's ability to pay into consideration; the same $10,000 fine could be a slap on the wrist for a rich man, but a harsh sentence for a poor one.
In many states, legal debtors are also charged for the privilege of making payments on what they owe. In Virginia, state law requires individuals to pay a $100 fee to initiate a payment plan, as well as a 6 percent annual fee. In Texas, individuals are charged a 4 percent credit card convenience fee on each payment they make. These numbers might seem small, but they can add up over time—especially for people who are barely holding on.
When a person misses a payment, many states tack on additional sanctions—monetary or otherwise. Some charge late fees. Others, such as Pennsylvania and West Virginia, suspend driver's licenses. In 44 states and D.C., judges may order jail or prison time for individuals with unpaid debts.
People newly released from prison already have bleak employment prospects. It's challenging enough for someone with minimal skills to find work. Imagine how much more difficult it becomes when you have a felony record, a 10- to 20-year gap in employment, and no place to live—and you know you'll have to return a significant portion of what you manage to earn to the state, probably for the rest of your life. The most recent survey data show more than half of the formerly incarcerated remain unemployed for up to a year after their release. Roughly 40 percent return to prison within three years.
For many folks caught up in the criminal justice system, especially those who are poor or who have spent years or decades in prison, coming up with the money to pay off their legal debt can be an insurmountable task—a life sentence.
What follows are edited excerpts from reporting in Alexes Harris' A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (Russell Sage Foundation).
Kathie owed over $20,000. That figure started at $11,000, but after accruing interest and additional fees for years, the total had nearly doubled. The 49-year-old was disabled and living with her three children, her ex-husband, and her father-in-law in a three-bedroom apartment. Although she was employed, her job did not bring in enough to pay her debts—let alone to afford her own housing:
"Oh my God, I'm going to get emotional…I really feel like it's time for me to move on. I'm going to be 50 years old next year, it's just time for me to have my own life again. And the financial obligations are, I mean it's something I think about every single day. I mean, there's not a day that goes by that I don't think, 'OK, what can I do today to try and figure this out?' And then there are days that I do everything in my power—OK, it's there, but I have other things to focus on today."
Scott owed $100 but only had $35 on hand at the time of his hearing. He was accompanied by his employer, who ultimately agreed to make up the difference—for self-serving reasons:
Clerk: You were supposed to pay $100. You were in for sentencing. You were released from the jail and told to pay $100. Do you have $65 more?
Scott: No.
Clerk: You will have to wait for the judge.
Employer: What happens if he doesn't pay the $65?
Clerk: He could go to jail. Do you have a credit card with $65?
Scott: No, it's all I got.
Employer: Will the judge give me time to scrounge around for more money?
Clerk: No.
Employer: So I have to go to the ATM right now?
Clerk: Yes.
[Scott and his employer leave and return later with a payment receipt.]
Clerk: Are you related?
Employer: No, I have a vested interest. As of today I own him. He is one of my mechanics.
Steve was convicted of a victimless crime, but he was charged a "victim penalty assessment" anyway:
"I feel like, my crime was, like, you know, selling. I was selling crack. So, I didn't really—I wasn't stealing money. So I still don't understand how that fit together. So, and then I think sometimes—and for myself it wasn't really a high amount, but I've seen amounts that are just, like, ridiculous, and where a person, they'll probably never pay it off, and I just don't think that's fair, to hold it over a person's head for the rest of their life, you know?"
Mike, a legal debtor, fretted that the system encourages people like him to return to crime when they get out of prison:
"I understand you have to pay your way, and the court has to pay its way, and they got to collect off somebody. But it seems to me like the way our criminal justice system works, you know, there's too many people making money out of corrections, and the corrections isn't correcting anything. It's more creating people who are unable to get jobs, who are unable to deal in society…So they work outside the block, and those kinds of things that they do, which are illegal, it just kind of compounds it."
In order to be released from James County jail, Patricia was told she had to commit to paying a monthly fee, something she knew she would not be able to do:
"[The clerk is] saying, 'OK, you can't pay $25, you have no income at all.' 'That's right, I have no income whatsoever—don't have any income.' And yet I'm not going to be released until I sign that paper and set myself up for a violation [by] saying I'll pay $25 a month. 'I can't'…'Well, there's no way you can get?'…Yeah, OK, if I whore myself on the corner, I can get it…
The post What It's Like To Be in Debt to the State appeared first on Reason.com.
]]>Under Louisiana law, any individual convicted of a fourth or subsequent felony offense—regardless of whether it's violent—faces no less than 20 years in prison and can be sentenced to up to the rest of his natural life. Because the two-decade requirement is mandatory, judges have no discretion at the time of sentencing.
While Grimes' case illustrates just how extreme this law can be, it's not unusual for Louisiana prisoners to serve decades in prison for a nonviolent crime. Louisiana is one of just a handful of states that allow nonviolent offenders to be sentenced to life without the possibility of parole—meaning they'll die in prison. More than 175 individuals in the state are currently serving such sentences for nonviolent offenses. Until a recent Supreme Court decision, the state even allowed children to receive life without parole.
The post Your Life for Candy appeared first on Reason.com.
]]>Last Friday, President Obama commuted the sentences of 42 federal inmates, bringing the total number of sentences commuted by the president to 348.
While this is certainly something to celebrate, especially for the families of those inmates who were scheduled to spend the rest of their lives behind bars, these inmates make up only a fraction of the 10,000 or so prisoners former Attorney General Eric Holder projected would be eligible for clemency under the administration's clemency initiative, which kicked off in April 2014. The initiative aims to prioritize clemency applications from inmates who met certain criteria, such as those who are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels, and individuals who have served at least 10 years already.
But instead of offering salvation, the painful slowness of the clemency process has subjected many prisoners and their families to a new kind of bureaucratic cruelty as they wait in dimming hope of being amongst the lucky few who make it through the system.
One such inmate is Antonio Bascaro, who according to clemencyreport.com is the longest serving prisoner for a marijuana offense. Bascaro was sentenced in 1982 to 60 years in prison for a series of crimes tied to a large marijuana conspiracy in the late 70s, when Jimmy Carter was president and before President Reagan ramped up the harsh sentences associated with the "War on Drugs."
In 2014, the United States Sentencing Commission (USSC) voted to amend its sentencing guidelines to make sentences for most drug offenses shorter—and also made the new rules retroactive.
However, because Mr. Bascaro was sentenced in 1982, two years before the USSC was created, a court ruled he was not eligible for a reduction in his sentence under the amended guidelines.
At this point, then, Mr. Bascaro's only hope at an early release is to be granted clemency before President Obama leaves office, or to survive past his release date, which is currently June 8, 2019. At that time, he will be 85 years old.
The initiative was sold as a way of helping inmates like Bascaro. Instead, he's become the victim of a slow-moving system that has struggled to live up to its goals.
When the initiative was launched, the Office of the Pardon Attorney announced it would be working with the Federal Bureau of Prisons to facilitate the initiative, as well as with the Clemency Project 2014 (CP14), a group composed of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union (ACLU), and Families Against Mandatory Minimums (FAMM).
Clemency Project 2014 recruited over 4,000 volunteer lawyers to screen applications from federal prisoners looking to obtain counsel to complete their clemency petition. After inmates are screened and CP14 determines their case meets the president's criteria for clemency, the petitions are sent to the Office of the Pardon Attorney at the Justice Department. The Office of the Pardon Attorney reviews the cases it's sent through CP14 and those submitted by inmates directly. The U.S. Pardon Attorney then decides which cases to send to Deputy Attorney General Sally Yates for review. Yates decides which cases make their way to the White House counsel, who then has the final say over which applications make their way to the President's desk.
With an undertaking this large, and a bureaucratic structure this vast, the system has struggled to process applications in a timely manner. A Politico investigation published in January 2015 found that the clemency initiative "languished during its first year due to a flood of applications, inadequate resources, reliance on a group of outside lawyers to prepare prisoners' paperwork, and a series of bureaucratic hurdles that weren't anticipated."
In January 2016, Pardon Attorney Deborah Leff announced she was resigning barely one year after she was formally appointed to the job. In her resignation letter to Deputy Attorney General Sally Yates, Leff wrote that the Justice Department had "not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president." According to USA Today, "Leff said Yates had overruled her recommendations in an increasing number of cases—and that in those cases, the president was unaware of the difference of opinion. " After her departure, a longtime federal prosecutor, Robert A. Zauzmer, was appointed to fill her shoes.
Since Leff's departure, the Office of the Pardon Attorney remains overwhelmed. In January, the office only had 10 lawyers, which The New York Times noted is "virtually the same size it was 20 years ago," despite the fact that the number of clemency petitions has increased substantially.
According to Kevin Ring, Vice President of Families Against Mandatory Minimums, a founding member of CP14, Obama's effort was beset with problems from the very beginning. "All the usual problems are there. Prosecutors are reviewing prosecutors decisions and don't necessarily want to let people out—they're not the most sympathetic crowd," Ring said. "Even beyond that, he frankly didn't have the resources to do this job. That's why we got involved with CP14 to provide free legal services."
"From all accounts of what we've heard, the president is personally engaged in this issue," Ring said. "I think the problem isn't lack of will, but the lack of infrastructure."
Early this year, the Office of the Pardon Attorney announced it was hiring 16 new attorneys, which would bring the total number of lawyers in the office to 26.
With 10,621 commutation petitions pending at the Office of the Pardon Attorney in May, and only 26 attorneys available to review, this means that each staffer is responsible for thoroughly reviewing roughly 408 petitions each over the next 6 or so months before Obama leaves office. And the petitions lucky enough to get vetted through the first stage have to endure the bureaucratic vetting process in place before eventually landing on the president's desk.
Separately, as of June 2, CP14 has sent only 1,150 petitions to the Office of the Pardon Attorney for review. The rates of success aren't great. According to Cynthia Roseberry, project manager of Clemency Project 2014, 145 petitions CP14 has sent the Office of the Pardon Attorney "have been acted on," which means they've either been granted or denied by the President, and 111 have been granted. With time running out, many inmates and their families are left wondering if their cases are going to fall through the cracks.
That's the position in which Bascaro and his family now find themselves. According to his daughter, Aicha Bascaro, the clemency process has been a bureaucratic mess for him and his family. In a phone interview, Aicha said her father applied for assistance through CP14 in May 2014. It wasn't until October 2015 that they were assigned a lawyer. In May of this year—two years after he initially applied—Aicha was told that her father's lawyer was withdrawing himself as representation of his case.
According to the letter, the lawyer writes: "He deserves clemency, as he has been in jail for more than 35 years for marijuana smuggling, and he's over 80 years old. Unfortunately, I am a sole practitioner with no criminal law experience, and I do not have the time or the resources to devote to this matter, which is far more complicated than I initially anticipated."
After Aicha received that letter from the lawyer, who sent it to her as a courtesy, not a requirement, Aicha emailed CP14 directly. Aicha told Reason, "I got a response on May 16 that said they are personally reviewing the case to see if he qualifies for representation."
"My father doesn't have a lot of time left. He's had back surgery last year and now walks with a cane. He also has glaucoma."
When I asked Roseberry if she had seen many lawyers withdraw as representation, she told me it happens infrequently, and that most lawyers have stayed. No exact figures were cited, though.
Other inmates, like Rose Summers, have had their cases closed by CP14 because of their upcoming release dates. Summers, a nonviolent drug offender, was sentenced to over 24 years in prison in 1997 when her son was just one year old. Her release date is August 2018.
When I asked Roseberry why they had closed cases of inmates because of their release dates, she said: "We have decided that our focus is going to be on the longer sentences and work our way back." She continued, "we have a skeletal staff, and the best use of our resources is to focus on lifers and those who have still have 40, 30, 20 years left."
For the next six or so months, families of inmates will have to keep their fingers crossed that the see a familiar name on the list of inmates granted clemency appears on the White House's website seemingly random days at a time.
At this pace, it seems likely that Obama's clemency initiative will benefit few, while the majority of otherwise eligible inmates will remain behind bars—waiting and hoping that the next president offers the chance at freedom that Obama's clemency project was supposed to give them.
This article has been updated.
The post President Obama's Clemency Project is a Bureaucratic Nightmare appeared first on Reason.com.
]]>Yesterday, Sen. Karen Carter Peterson, a Democrat representing Louisiana's District 5, blocked a bill that would have allowed people sentenced as children to life in prison without the possibility of parole—essentially death without execution—to become eligible for parole after serving 30 years behind bars and meeting certain other requirements. Why would a democratic senator let the clock run out on a bill that sailed through the Louisiana House (82-3) with bipartisan support and would likely have seen a similar vote in the Senate? Petty politics, of course.
According to Julia O'Donoghue of the Times-Picayune, Peterson actively blocked the juvenile-parole bill as retribution for House members failing to vote on a construction budget bill that was backed by the Senate. Now a vote on the measure, House Bill 264, will have to wait indefinitely, as the regular legislative session has run out.
HB 264, sponsored by Representative Sherman Mack (R-Livingston), would have made Louisiana compliant with two recent U.S. Supreme Court cases. In 2012, the Court ruled in Miller v. Alabama that mandatory life without the possibility of parole sentences for juveniles were unconstitutional. Earlier this year, the Court ruled in Montgomery v. Louisiana that the Miller case should be applied retroactively to minors sentenced before 2012.
It's estimated that approximately 300 inmates could have been eligible for parole through the passage of the Louisiana bill. That means there are currently 300 inmates who were essentially sentenced to die in prison for crimes they committed when they were kids—something the U.S. Supreme Court has determined to be a form of "cruel and unusual" punishment. But because of Peterson's petty politics, they'll have to keep waiting for relief until a bill is passed and signed by Governor Edwards. Perhaps that will happen if a special session is called, perhaps they'll have to wait until next year.
According to Ben Cohen, of counsel for the Promise of Justice Initiative, Peterson's actions will result in a wave of new litigation because Louisiana still is not compliant with the recent Supreme Court decisions. This litigation will come with additional costs and uncertainty.
Cohen wrote in an email, "I think the idea that this will be fixed some day in the future, either by the state courts, the United States Supreme Court, or at next year's legislative session—it derives from the perverse view that people serving an unconstitutional sentence of life without parole at Angola, should be happy with whatever they get, should accept a second class justice. When I think about the people I know serving that sentence, that unconstitutional sentence, each day is an injustice. And today, I think Senator Peterson is responsible for that."
It's times like these where it's important to remember that being awful on criminal-justice issues can be a bipartisan issue, too.
This post has been updated since publication.
The post Louisiana Inmates Serving Unconstitutional Sentences Will Have to Keep Waiting for Relief appeared first on Reason.com.
]]>According to the D.A.'s office press release, police and prosecutors may still arrest and criminally charge someone for committing one of these offenses "if there is a demonstrated public safety reason to do so."
Such offenses were criminalized as part of the city's "broken windows policing" effort over the past few decades. The theory was that if you arrest someone for low-level "quality of life" offenses, that person will be less likely to go on to commit other more serious crimes. But critics say the policy has been disproportionately used to harass poor and minority citizens, and that many people have consequently been caught up in the criminal justice system unnecessarily.
The D.A.'s office and the mayor's office hope these changes will reduce Manhattan's overburdened criminal court docket. Over 1.1 million New Yorkers currently have open arrest warrants for failing to appear at their court dates for low-level offenses.
The New York City Council has also been considering legislation that would create a civil process for quality-of-life violations in all five boroughs, not just Manhattan.
The post NYPD Backs Off appeared first on Reason.com.
]]>Florida is one of only three states that not only allowed judges to override jury recommendations for life in prison but also did not require unanimous jury verdicts in death penalty cases. The other states with similar provisions are Alabama and Delaware.
Despite this ruling, Alabama executed an inmate named Christopher Brooks on January 21. His lawyers argued that the Hurst v. Florida decision also invalidates the way Alabama hands down death sentences, but authorities in Alabama disagreed, and the U.S. Supreme Court did not stop the execution from being carried out.
Delaware has taken a different approach. Following the ruling, a Superior Court judge ordered a halt to executions in the state until the state Supreme Court determines the constitutionality of its capital punishment scheme.
Florida too has paused capital punishment. The Florida Supreme Court granted a stay of execution to Cary Lambrix, who was set to be put to death on February 11, putting the status of the death penalty in Florida in limbo.
Florida has the second-highest number of death row inmates in the nation, with 390 men and women currently awaiting execution. According to a recent analysis by The Villages Daily Sun newspaper, 75 percent of the state's death row cases involved non-unanimous juries.
The post Florida Death Penalty appeared first on Reason.com.
]]>Amy Povah was just 30 years old when she was sentenced to 24 years in federal prison for a drug crime she didn't even commit herself. The crime—manufacturing a large amount of ecstasy in both the United States and Germany—was committed by her then-husband, Sandy Pofahl. Her lengthy prison sentence was based on the entire amount of ecstasy Pofahl manufactured, even though five co-defendants provided affidavits stating Amy was not involved in his drug trade.
Because Pofahl cooperated with the U.S. prosecution by providing the government with information about other drug dealers, he walked away with just three years probation in the U.S. after serving four years in a German prison. Povah, meanwhile, refused to cooperate with the federal investigation into her husband's crime and, as a result, was indicted for conspiracy. The charges came with a mandatory 20-year to life sentence in federal prison. She was convicted in 1991.
Charlie Strauss, an assistant U.S. attorney from Waco, Texas who had initially questioned Povah, told Glamour magazine in 1999, "Had she come to the table at that time—cooperated, been truthful, honest and candid—I would say there's a probability she wouldn't have been prosecuted."
Povah's predicament is far from rare. There are thousands of others like her in America, people who have received outsized sentences despite very minimal connections to the crimes of others thanks to our country's conspiracy statutes. These laws give broad discretion to prosecutors to charge just about anyone who "conspired to commit" a crime.
What "conspired" means, however, is largely up to interpretation, and the definition can be stretched to absurd lengths at the whim of the prosecution. It often is.
Worse, if a person is convicted of conspiracy, he or she is subject to the same sentence required for the actual crime itself. This allows for individuals to be convicted as high-level drug traffickers even if they have never physically touched any drugs in their lives.
Using conspiracy statutes, the government doesn't have to prove someone ever sold, trafficked, or even possessed drugs in order to sentence them to prison as if they had. It's a recipe for extremely harsh sentencing—sentencing that in some cases, like Povah's, can be substantially longer than the punishments doled out to those who actually committed the crimes. As Molly Gill from Families Against Mandatory Minimums (FAMM) puts it, "Being charged with a conspiracy means people are punished for drugs they didn't sell, guns they didn't possess or use, and bad behavior they may have had nothing to do with. Conspiracy makes small players look like big fish, and get mandatory minimum sentences to match. Judges know the difference but can't do anything about it, unless Congress changes sentencing laws."
Luckily for Povah, her case garnered a lot of media attention, and her sentence was eventually commuted by President Bill Clinton in 2000. At the time of her release, she had served over nine years in prison. Shortly after her release, she founded the nonprofit CAN-DO organization, which brings attention to other individuals who are serving harsh prison sentences. "First-time offenders used to get probation in a drug case," says Povah. "Now we have thousands of first time offenders serving 15 years to life, and almost everyone for conspiracy. … Like everyone, I have survivors guilt, which is why I do what I do."
Federal conspiracy statutes can be traced back to the Reagan administration, when laws like the Anti-Drug Abuse Act of 1988, which expanded upon the Anti-Drug Abuse Act of 1986, were enacted. The 1986 law created a number of mandatory minimum prison sentences for various drug crimes, and it required individuals to actually be caught with a certain amount of drugs to be sentenced to the corresponding mandatory minimum prison terms. When it was amended in 1988, conspiracy was added.
"After conspiracy was added," Julie Stewart, President of FAMM, wrote in an email, "you could be held liable for all the drugs in the group (conspiracy) even if your part was exceedingly small and you had no idea of the total amount of drugs involved. This was an easy way to drive up drug quantity for each player and, in turn, subject them to long mandatory minimum prison sentences."
In the 1994 ruling of United States v. Shabani, the United States Supreme Court upheld the application of the law by unanimously deciding "conspiring to commit a narcotics crime can be a violation of Federal law even if the conspiracy is never carried out."
Alfred Anaya is another individual needlessly caught up in the justice system as a result of these laws. Anaya owned a small car stereo installation business in California, where he offered his clients a number of different services, including the installation of secret compartments in cars. He had no knowledge of what his customers were using the compartments for, and he thought that was enough to cover him from any accusations of wrongdoing.
But when one of Anaya's customers became the subject of a Drug Enforcement Agency investigation and was found with drugs, Anaya was wrangled in as a co-conspirator in a multi-state drug trafficking operation. Eventually he was convicted and sentenced to 292 months in federal prison, while the two men at the top of the trafficking organization received sentences half as long, according to a profile of Anaya that ran in Wired.
"The fact that I've been criminally charged in federal court for something I did not do has been devastating to me, and my two young sons, and family," Anaya wrote in an email. "I wonder what the outcome would have been if I could have been afforded a competent defense team."
Because he's served a little over four of his 24 years in prison, he doesn't meet the requirements laid out for Obama's clemency initiative, which requires those who apply to have served at least 10 years of their sentences, among other factors.
It's difficult to ascertain the exact number of individuals in federal prison for conspiracy crimes, since most readily available statistics lump all drug offenders together. We do at least know that the majority of those whose sentences were commuted by President Obama were convicted of conspiracy crimes.
"I would hazard to guess that conspiracy is charged almost any time there is more than one person involved in a drug crime, which is usually," says Gill. "I would also hazard to guess that DOJ charges conspiracy as a way to run up the drug quantity to get longer sentences."
As long as these conspiracy laws on the books, individuals like Povah and Anaya will continue to be needlessly swept up into the criminal justice system on little more than the whim of the government. Conspiracy laws are basically everything wrong with the war on drugs and overzealous prosecution packaged into one, and meaningful criminal justice reform cannot possibly come without reexamining these draconian policies nationwide.
The post How Conspiracy Laws Let Prosecutors Abuse Their Power appeared first on Reason.com.
]]>Federal sentencing reform has been slowed in recent months over contentions between conservative and liberal lawmakers and advocacy groups over mens rea reform. Many conservatives and libertarian groups have advocated for strengthening mens rea requirements—or increasing the burden of proof the state must meet when it comes to showing an individual not only committed a crime, but also intended to commit a crime or knew they were breaking the law—at the federal level.
This discussion has, for the most part, ignored another similar area of criminal law: the felony-murder rule. In all murder cases, with the exception of the felony-murder rule, the state has to prove that a person who caused the death of another intended to kill that person or cause serious bodily harm.
In states with a felony-murder rule, a person could be convicted of murder if someone died during the commission of a felony, even if the person did not intend for the death to occur. This rule, while seemingly straightforward, has been applied broadly to cases in which individuals had no knowledge a murder—or even a crime—had occurred. Simply being connected to a felony crime in some way, however small that connection may be, allows the state to charge an individual with murder.
For example, Ryan Holle was convicted of first-degree murder and is currently serving a life sentence for letting his friends borrow his car, which they used to commit a burglary. The burglary turned violent, and one of the men killed 18-year-old girl. Because Ryan Holle lent them the car they used to commit these crimes, he was also charged with first-degree murder.
From The New York Times: "A prosecutor explained the theory to the jury at Mr. Holle's trial in Pensacola in 2004. 'No car, no crime,' said the prosecutor, David Rimmer. 'No car, no consequences. No car, no murder.'"
Here's another example, from Illinois: In 2008, three teenagers broke into a home while two friends waited outside. A person inside the home, surprised by the burglars, shot and killed one of the boys. While the shooter wasn't prosecuted for the killing because he acted in self-defense, two of the teenage boys were charged with first-degree murder. Both boys took a plea deal, in which they pleaded guilty to involuntary manslaughter and burglary, and were both sentenced to 30 years in prison.
Let's look at one more case from Illinois: 17-year-old Cedrick Chatman was shot and killed by Chicago police after he exited a car that was stolen by him and two of his friends. Instead of charging the cop, his friends were each charged with first-degree murder. The prosecutors alleged that the two "set in motion a chain of events that caused the death of Cedrick Chatman," despite being several blocks away from where the shooting occurred. The charges were eventually dropped.
This rule has extended to drug-overdose deaths, specifically related to heroin overdoses, in some states as well. For example, just last week a Virginia man was charged with felony murder after his wife overdosed and died from heroin he supplied.
Kent Scheidegger, the Legal Director and General Counsel of the Criminal Justice Legal Foundation, explained to The New York Times in 2007 why he believes state felony-murder rules makes sense: "A person who has chosen to commit armed robbery, rape or kidnapping has chosen to do something with a strong possibility of causing the death of an innocent person," Scheidegger said. "That choice makes it morally justified to convict the person of murder when that possibility happens."
But evidence suggests that the felony-murder rule may not have the effects proponents think it should have. According to the findings of 2002 study by Anup Malani, which analyzed state-level data on felonies and felony homicides from 1970-98, the felony-murder rule did not substantially improve crime rates and even increased the number of felony deaths in a state. According to the author, "although the rule reduces the rate of some felonies, this effect is small and can be easily replicated by increasing the penalty for these felonies."
So, not only does the felony-murder rule allow individuals barely connected to a felony crime in which a death occurred to be convicted of first-degree murder, this rule also does not actually serve to reduce crime in states that have it.
If policymakers and advocates want to get serious about reforming the perversions and excesses of our criminal justice system, they should be looking beyond just excessive punishment for nonviolent offenses, but also at statutes that conflict with the basic principles of criminal law: that a person must know that he or she committed a crime in order to be prosecuted for it. Weak mens rea requirements and the felony-murder rule both go against this notion. Any crime that doesn't require the state to prove intent, whether violent or nonviolent in nature, makes it all too easy for prosecutors to stretch charges to absurd lengths.
The post The Felony-Murder Rule Sends Non-Killers to Prison and Doesn't Even Reduce Crime appeared first on Reason.com.
]]>Has the media narrative shifted when it comes to certain types of drug users? While it's increasingly common to find news reports describing heroin and opioid use as an "epidemic," a "plague," and even "an apocalypse," media are also paying attention to what a new type of "user" looks like, and have adjusted their moral panic accordingly.
Overall, coverage of U.S. heroin use inflates the scope of the problem by failing to provide relevant context. Americans use drugs like cocaine and hallucinogens at higher rates than heroin, there are still less than a million current heroin users in the U.S., and more Americans died from alcohol-induced causes than heroin and opioids combined in 2014, to provide some perspective.
But a "new face of heroin" is shifting the discourse on drug addicts in the media. Since introduced by ABC 20/20 in 2010, the "young, middle-class, white" American heroin addict has captured much media attention, and it's become accepted as truth that middle-class, suburban youth are now heroin's biggest customer. The drug addicts du jour are no longer so "other"—neither the poor, urban blacks that fueled crack cocaine panic nor the poor, rural whites of methamphetamine lore. They're "our sons, daughters, brothers, and sisters," they're community members. As one father told The New York Times in 2015, "[heroin users are] working right next to you and you don't even know it. They're in my daughter's bedroom—they are my daughter."
This new (white) face of drug use has led to white families and politicians seeking a "gentler approach to the war on drugs," The New York Times recently noted. And indeed, there's some truth to the idea that shifting media coverage of who is using heroin has led to more empathetic responses from law-enforcement leaders and politicians, at least in terms of how they talk about this issue. Increasingly, town halls are being held to discuss how to compassionately combat the "heroin epidemic."
But has the new, empathetic tone of the coverage and conversation around opioid users actually translated into more humane public policy? Not quite.
Over the past few years, many states have passed legislation that either requires law enforcement to carry overdose-reversing drugs, such as Narcan, or increases access to these types of drugs with the hope that the number of overdoses will decrease. Yet there are no examples of states decreasing penalties for possession of heroin. And while it appears that law enforcement, prosecutors, and judges are at least talking about being able to use more discretion when handling heroin cases, few statistics are available to see if this talk has translated into action.
Plus—as with every victim-centered narrative—someone or something has to be blamed. In the case of heroin, the perpetrators have become both the dealer and the drug itself.
It seems natural that this has begun to happen. When people hear that epidemics, tsunamis, and apocalypses are sweeping through their communities and preying upon community members, it makes sense that they want to blame someone and to "get tough." Indeed, that's been the typical response to past perceived drug epidemics, from crack to club drugs. Now we're beginning to see the same sort of reactionary, tough-on-crime response when it comes to the sale of heroin, although perhaps even more severe than in decades past.
Specifically, we're starting to see states enact tougher penalties for heroin dealers and "traffickers." For example, in 2014, Louisiana enacted a law that requires a 10-year mandatory minimum prison sentence for individuals convicted of selling any amount of heroin. Recently, the inflammatory Republican governor of Maine, Paul LePage, called for the state to bring back the guillotine for drug traffickers.
In many more states, prosecutors are routinely charging individuals who sell heroin to someone who later overdoses and dies with murder, manslaughter, and homicide, though these statutes were rarely used in this way before this heroin "epidemic" started. And other states, such as New Hampshire, Delaware, and New York, are considering legislation that allows murder or homicide charges for these crimes.
Already we're seeing repercussions from these changes. News stories are popping up at least weekly about individuals who have been convicted of murder, manslaughter, and other violent offenses for selling heroin to individuals who overdosed and died. Here are some examples from the past two weeks alone:
Even more startling, a California doctor was just convicted of murder and sentenced to 30 years in prison in connection with the prescription pill overdose deaths of three of her patients. This is the first example in the United States of a doctor being convicted of murder for prescribing medication that patients subsequently fatally overdosed on, and it sets a dangerous precedent.
As these examples show, the narrative surrounding victims may lead to leniency from law enforcement and judges for users, but tough-on-crime policies are still in full swing when it comes to other heroin offenses. And while we wait for media and politicians to sober up, the results of these policies will prove just as unjust as those from previous moral panic related to the war on drugs.
The post The Media Narrative Around Drug Use Is Shifting, But the Harsh Policies for Drug Crimes Are Not appeared first on Reason.com.
]]>Despite having the opportunity to clarify their stances on criminal justice issues, Democratic presidential frontrunners Hillary Clinton and Bernie Sanders failed to offer any real solutions to the problems at large during last night's Democratic debate.
Two questions were posed for the candidates on criminal justice issues. First, a Facebook question asking, "Do black lives matter, or do all lives matter?" Second, a question on marijuana legalization.
Sanders offered a bold response to the black lives matter question, insofar as he said, "black lives do matter," and brought up the case of Sandra Bland, a woman who was pulled over for changing lanes without signaling and was found dead in a jail cell three days later. He noted high incarceration rates, but when it came to offering real solutions in dealing with the problems of our broken criminal justice system, Sanders disappointingly he intended to "make sure that our people have education and jobs rather than jail cells."
This response seems to be in line with what he's done throughout his career, which is to side-step the issue of criminal justice reform and instead just talk about education and jobs, as noted earlier this week at the Marshall Project.
Hillary took a more moderate approach to the "black lives matter" question, instead choosing to praise President Obama for being a "great moral leader on these issues," and further stating "What we need to be doing is not only reforming criminal justice…we need to tackle mass incarceration." Seemed like a good start.
But, like Sanders, Hillary followed with a statement that offered no concrete solutions, and in fact had little to do with criminal justice reform at all. She said, "We've got to do more about the lives of these children, that's why I started off by saying we need to be committed to making it possible for every child to live up to his or her God given potential. That is really hard to do is you don't have early childhood education, if you don't have schools that are able to meet the needs of good people or good housing—there's a long list. We need a new New Deal for communities of color and the poor." Back to her old, familiar talking points it is, then!
When both candidates were asked if they would vote in favor of the marijuana legalization ballot initiative in Nevada if they could, Sanders outright said that he would, which is the first time he's publicly supported marijuana legalization.
When Hillary was asked the same question, she responded that she was not ready to take a position on legalized marijuana, a response she's stuck with for a while now. She then went on to say the following: "We've got to stop imprisoning people who use marijuana, need more states, cities, and the federal government to begin to address this so that we don't have this terrible result that Sen. Sanders was talking about, where we have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana."
But, as Jacob Sullum noted earlier today, a very small minority of prison sentences for drug offenses are for marijuana. Many more who are incarcerated for "low-level" drug offenses are there for possessing, manufacturing, or selling drugs like heroin, cocaine, or methamphetamine. Indeed, Sullum notes, "even releasing all drug offenders, who represent about one-fifth of the [total] prison population, would still leave a lot to do."
Besides some factual inaccuracies about who exactly is in prison for nonviolent offenses, what makes these candidates' responses to particularly disappointing is that there are so. many. possible reforms they could have offered. And yet Hillary and Bernie chose to stick to talking points that are both stale and unappealing, particularly to those who care about reforming our broken criminal justice system.
Of course, it's important to remember that Hillary has had a pretty abysmal record when it comes to criminal justice issues, publicly supporting Bill Clinton's 1994 Crime Bill, advocating draconian Three Strikes laws, and criticizing then-presidential candidate Barack Obama for being "too soft on crime" during the 2008 election campaign. While she's started to retreat from those positions, it's hard to know if she's doing so only because being against reform will make it harder for her to be elected. As highlighted earlier, Sanders has never really been a champion of criminal justice reform throughout his career (and it should be noted that he indeed voted for the final version of the 1994 Crime Bill).
But criminal justice reform is popular with the public these days. Search on any given day and you'll find at least one article touting the bipartisanship of the issue. Indeed, black lives matter activists have also taken to interrupting Bernie Sanders during a campaign speech, and have publicly met with both him and Clinton in recent weeks. Earlier this year, Clinton gave a speech on the merits of reform, though once again offered limited concrete solutions.
I don't mean to downplay the significance of having such a topic discussed during the first Democratic debate. I do, however, think it's unfair for Democrats or criminal justice reform supporters to throw all of their hopes and dreams behind two candidates who have either done basically nothing on the issue or have supported the very same "tough-on-crime" policies that were a major driver to the incarceration problems we're facing today, despite some evidence that they're beginning to head in the other direction. Given that there were more substantive responses on the issue given at the Republican debate, and that Bernie and Hillary failed to deliver any real concrete policy solutions despite the softball questions thrown their way, I'm afraid many who favor a more just criminal justice system will end up disappointed if one of these candidates is elected in 2016.
The post Clinton and Sanders Pay Lip Service to Criminal Justice Reform, but Offer No Concrete Solutions appeared first on Reason.com.
]]>At 3 p.m. Wednesday, Oklahoma will administer a lethal cocktail of drugs into the arm of Richard Glossip, a man who is likely innocent of the crime he was condemned for. A number of well known figures and celebrities, including Susan Sarandon (who appeared on Dr. Phil to talk about Glossip's case), former University of Oklahoma football coach Barry Switzer, and Sen. Tom Coburn (R-Okla.), have publicly pleaded with Gov. Mary Fallin to spare Glossip's life.
Some brief history: Glossip was tried twice, convicted, and sentenced to death for the 1997 murder of his boss, motel owner Barry Van Treese. The state argued that it was a murder for hire, committed by 19-year-old Justin Sneed at the behest of Glossip. Sneed, also an employee of the hotel, admitted to beating Van Treese to death with a baseball bat, but claimed Glossip ordered him to do it in exchange for money and the opportunity to manage one of Van Treese's motels.
However, there was no corroborating evidence tying Glossip to the crime—no fingerprints, no DNA, nothing. He was convicted and sentenced to death based upon the testimony of Sneed alone. What's worse, there's video evidence, which Glossip's lawyer failed to introduce to the court and therefore the jury never saw, that shows Detective Bob Bemo pushing Sneed to implicate Glossip. In exchange for this testimony, Sneed was able to avoid the death penalty.
Liliana Segura and Jordan Smith at The Intercept summarized what's on the tape:
"Had members of the jury watched the tape, they would have heard [Detective] Bemo tell Sneed that before he decided whether or not to waive his rights and talk to the cops, he should consider the situation. "Before you make your mind up on anything," Bemo cautioned him, "I want you to hear some of the things that we've got to say to you."
Sneed was read his rights, and then Bemo leaned in: "We know this involves more than just you, okay?" Sneed told Bemo that he didn't "really know what to say about" what happened to Van Treese. Well, Bemo said, "everybody is saying you're the one that did this and you did it by yourself and I don't believe that. You know Rich is under arrest, don't you?" No, Sneed said, he didn't know that. "So he's the one," Bemo replied. "He's putting it on you the worst."
If Sneed didn't want to talk about the involvement of anyone else, Bemo said he would be happy to walk Sneed into the jail and book him for Van Treese's murder, "and you would be facing this thing on your own," Bemo said. "And I don't think it's just you."
Sneed obliged, confessing to the murder and blaming Glossip for it."
Even Justin Sneed's daughter, O'Ryan Justine Sneed, wrote a letter to the Oklahoma Pardon and Parole Board last year saying she believed her dad's conscience was eating at him and that he had begun to consider recanting his testimony. She asked the board to spare Glossip's life.
So why is this man, whose guilt has now been brought into question, still facing execution Wednesday? Because Glossip has exhausted all of his appeals. Since he was convicted and his sentence upheld multiple times, the burden of proof shifts from guilt to innocence. Before his conviction, the burden of proof was on the state—it had to prove that Glossip was guilty of hiring Sneed to murder Van Treese. Now, the burden of proof has shifted to Glossip; he must now show "actual innocence," which is a much higher bar to reach than "reasonable doubt" of guilt.
Unless Glossip's lawyers are able to find a piece of evidence that proves Glossip's "actual innocence," it is likely that Oklahoma will kill him Wednesday at 3 p.m.
There are two other possible means in which Glossip's execution may be halted tomorrow, both of which seem very unlikely. First, the U.S. Supreme Court could intervene on the basis of innocence, which seems unlikely since his lawyers do not have evidence that proves his actual innocence.
His very last hope is to have his death sentence commuted to life in prison by Gov. Mary Fallin. However, she's already indicated she will not be exercising that executive power. The likelihood of this happening decreased further Tuesday evening when Falin rejected Glossip's request for a stay of execution and issued this statement.
Glossip's case will not be the first time a man has been executed for a crime he likely did not commit. In 2004, Texas executed Cameron Todd Willingham for setting fire to his home and killing his three daughters—a fire scientists say was started accidentally by a faulty electrical wire in the attic. There's also the case of Carlos DeLuna, executed by the state of Texas in 1989 for a crime many believe was committed by a similar looking man from a nearby neighborhood.
Many convictions that have resulted in death sentences have relied, at least in part, on witness testimony, or "snitch" testimony. In 2005, the Northwestern Law School's Center on Wrongful Convictions found that false testimony was the leading cause of known wrongful convictions in death penalty cases. False testimony was used in nearly half of all death row exonerations at that time.
So, this is our justice system in 2015, folks. Despite all we know about wrongful convictions, and the fact that a likely innocent person has been put to death before, we still require a person who is about to be murdered by the state to prove his innocence, not just reasonable doubt of guilt. States are so eager to administer the highest form of punishment—death—that they're willing to rely on the shoddiest of evidence and overlook even the most glaring examples of possible innocence to get the job done.
*Updated Wednesday, September 16, at 1:15 p.m.: The Oklahoma Court of Criminal Appeals issued an emergency stay of execution just four hours before Glossip was scheduled to be executed in order "to give fair consideration to the materials included in his subsequent application for post-conviction relief […]". The full court order can be read here. His execution has been rescheduled to September 30, 2015.
The post Oklahoma Is Going to Execute a Plausibly Innocent Man Today appeared first on Reason.com.
]]>President Obama commuted the sentences of 46 federal prisoners today, all of whom were convicted of a nonviolent drug offense and would have received shorter sentences if they were convicted of the same crimes today. Per Obama's orders, all of these individuals will be released November 10 of this year. The White House published a full list of the inmates whose sentences were commuted here. Obama also made a video announcement about the commutations, which was published on the White House Facebook page.
Of the 46 prisoners whose sentences were commuted today, 14 were sentenced to life (although one individual had his life sentenced amended to 293 months, or roughly 24 ½ years, in March). All of the prisoners were sentenced for a nonviolent drug offense, but the majority were convicted of a crack/cocaine offense. Two individuals, Jerome Johnson and John Wyatt, were convicted of only marijuana offenses.
All of these prisoners face an uphill battle upon release, not only because reintegrating into society after spending decades behind bars is really tough, but also because these individuals will be branded with a felony record for the rest of their lives unless pardoned by the President. Having a felony on one's record makes obtaining employment, housing, or other federal assistance, such as student loans, quite difficult or impossible. For example, Barbara Scrivner, a woman whose 30-year prison sentence was commuted by Obama last year, told Yahoo a few months ago that despite having a letter signed by President Obama himself, she was rejected by hundreds of employers before securing a job at a cleaning company. By then, the house she had been living in, previously owned by her father who had passed away while she was incarcerated, was repossessed and sold by a bank. She's currently raising money to be able to relocate with her daughter and grandson.
There are still thousands of federal prisoners awaiting the same type of relief these lucky 46 inmates received today. Indeed, after the Department of Justice expressed a new openness to commutation petitions in 2014, over 30,000 prisoners contacted the Clemency Project—a joint effort by Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association, and the National Association of Criminal Defense Lawyers—with the desire to have their petitions considered.
These commutations come just a few days before President Obama is scheduled to tour the El Reno federal prison, a medium security prison in Oklahoma that houses 1,300 inmates. This will be the first time a sitting president has ever visited a federal prison. Tomorrow, Obama will address the NAACP's annual conference in Philadelphia, during which he will lay out his ideas for criminal justice reform.
While these 46 commutations are promising and an overwhelmingly positive step in the right direction, real reform must come in the form of legislation that scales back the destructive, punitive sentencing laws that allowed for these individuals to be sentenced to decades in prison in the first place. While it's not perfect, there's one bipartisan bill currently before Congress, the SAFE Justice Act, that presents the best chance to reforming federal drug sentencing laws, and it's receiving increased levels of support in recent months.
It's encouraging to see a President who has until recently had one of the most awful clemency records of any modern president, and whose administration has prosecuted more individuals for federal marijuana offenses than previous administrations, actually attempt to do something to reform our criminal justice system. Whether federal sentencing reform becomes a reality in light of Obama's commutations and federal prison visit has yet to be seen.
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]]>Today, the Nebraska legislature voted 30-19 to override Governor Pete Rickett's veto of legislation repealing capital punishment in the cornhusker state. This makes Nebraska the first Republican dominated state to abolish the death penalty in more than 40 years.
Last week, the legislature overwhelmingly passed the bill with a veto proof majority—32 to 15. However, Governor Ricketts vetoed the bill on Tuesday, stating he did so for public safety reasons. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to be able to put these hardened criminals behind bars," he said. (Nevermind that the repeal won't actually prevent the state from keeping criminals behind bars…)
Prior to issuing his veto, Gov. Ricketts announced that the state recently purchased more than $50,000 worth of sodium thiopental and pancuronium bromide in order to "resolve" the "functionality of the death penalty in Nebraska." Despite only having 11 inmates on death row, the amount of drugs purchased is enough for "thousands of executions."
According to Buzzfeed, the drugs purchased by the state come from a questionable source:
Rickett's office said the drugs were purchased from a distributor in India called HarrisPharma, a source that shouldn't be unfamiliar to Nebraska officials. The state purchased drugs from a broker named Chris Harris, who now runs HarrisPharma, several years ago, but Nebraska was never able to use them after questions over whether the purchase was done legally.
In 2011, the manufacturer claimed the drugs were free samples given to Harris for tests in Africa, but were "wrongfully diverted" to Nebraska's execution chamber.
Controversy has surrounded a number of states that have carried out or have attempted to carry out executions with questionable lethal injection drugs—some of which have been botched—in recent months. The U.S. Supreme Court is currently reviewing whether Oklahoma's lethal injection protocol—specifically, the use of the drug midazolam—violates the Constitution's protection against cruel and unusual punishment.
The man behind Nebraska's death penalty abolition bill is state senator Ernie Chambers, who says he has tried to abolish the death penalty in the state 37 times. What made this year different, however, is the amount of support he was able to garner from conservative legislators. "Conservatives have vowed that whenever they find a government program that isn't working, they will scrap it. And if there is a government program that doesn't achieve its goals, it's the death penalty," he said.
With today's vote, Nebraska became the 19th state to abolish the death penalty, along with the District of Columbia. According to the Death Penalty Information Center, Nebraska has executed only three inmates the past 50 years, the most recent of which occurred in 1997. All three inmates were executed by electrocution.
For more, here's ReasonTV's "3 Reasons to Get Rid of the Death Penalty"
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]]>The U.S. Supreme Court agreed last Friday to hear arguments over whether Oklahoma's lethal injection protocol violates the Constitution's protection against cruel and unusual punishment.
The justices will review whether midazolam—the drug Oklahoma used for the first time in the botched 2014 execution of Clayton Lockett—can be used in future executions. Petitioners in the case, Glossip v. Gross, argue that midazolam "cannot reliably produce a deep, comatose unconsciousness" and ensure an inmate does not experience "intense and needless pain and suffering" when the second and third drugs are injected.
The decision to review Oklahoma's lethal injection protocol comes eight days after the Court refused to halt the execution of Oklahoma inmate Charles Warner, who was executed with a three-drug cocktail that included midazolam on January 15. Warner was a petitioner on the case the Court agreed to hear.
The last time the U.S. Supreme Court ruled on the constitutionality of lethal injection protocols was in 2008 in Baze v. Rees. In that case, the Court upheld Kentucky's three-drug cocktail used for executions—the sedative sodium thiopental, the paralytic pancuronium bromide, and potassium chloride—as constitutional. Without a proper dose of sodium thiopental to render the prisoner unconscious, the court wrote, there would be "substantial, constitutionally unacceptable risk" that the inmate will suffer unnecessarily when the second and third drugs are injected. However, the Court found no reason to believe that Kentucky inmates were at risk of receiving an improper dose.
Petitioners in the Glossip v. Gross argue "there is a well-established scientific consensus that [midazolam] has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness," which was a requirement the Court laid out in Baze. Indeed, part of the state's research to determine if midazolam would render an inmate unconscious did not come from any medical studies, but from "Wiki leaks or whatever it is," according to testimony provided by Michael Oakley, general counsel for Oklahoma's Department of Corrections.
At the time of the Baze ruling, all states that imposed capital punishment in the U.S. used the same three-drug cocktail to carry out executions, and all drugs used came from Food and Drug Administration (FDA) regulated companies that stopped allowing their drugs—namely, sodium thiopental—to be used for executions around 2009. Without access to these drugs, states began to change their lethal injection protocols to include drugs like midazolam, which had never been used in executions before.
Protocols now vary widely from state to state, and the suppliers of these new drugs are mostly unknown. However, no state uses the drug cocktail evaluated by the Court in Baze to carry out executions today.
Last year, Ohio became the first state to use midazolam in an execution—one that lasted nearly 25 minutes and prompted a lawsuit. A year after that execution, Ohio removed midazolam from its lethal injection protocol.
Arizona used a combination of midazolam and hydromorphone in an execution that lasted 114 minutes last year. During that time, the inmate was "gasping and snorting for more than an hour." Like Ohio, Arizona agreed to no longer use midazolam in future executions.
A St. Louis Public Radio investigation found Missouri had used midazolam in every execution carried out in the state since November 2013, despite the fact that the Secretary of Missouri's Department of Corrections testified they had never used the drug. Florida has also used midazolam to carry out executions, but all occurred without incident. The ruling in this case will likely have an impact in the states that allow executions to be carried out with midazolam.
The U.S. Supreme Court has never struck down a particular method of execution—including hanging, firing squad, lethal gas, or electrocution—as unconstitutional, so it's unlikely it will do so with midazolam. It's also worth remembering that all executions carried out in the U.S., including the several botched executions from last year, were done with the Supreme Court's approval. However, given that midazolam has not been approved for use as an anesthetic by the FDA, and that there are no studies to show it will work as intended in executions, there's a chance the Court will no longer allow this particular drug to be used in executions going forward.
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]]>In 1996, Holsey robbed a convenience store, then shot and killed a pursuing police officer. He was convicted of armed robbery and murder and sentenced to death in 1997.
His attorney, Andy Prince, later testified that during Holsey's trial, he would go back to his hotel room in the evenings and drink until he "couldn't drink anymore." According to Prince, he was consuming roughly a quart of vodka every night—the equivalent of 21 shots. "What I considered doing fine at the time was just barely getting by. I shouldn't have been representing anybody in that case," Prince has said.
Prince later voluntarily forfeited his law license and was sentenced to serve three years in prison for stealing over $100,000 from one of his clients.
Eventually, a Georgia Superior Court judge would rule that Holsey's lawyer failed to present mitigating evidence that may have led to a different outcome, including facts about Holsey's intellectual disability and his violent family history. Georgia requires a unanimous jury vote to impose the death penalty; if this evidence had been presented, perhaps one or more jurors may have voted otherwise. The judge vacated Holsey's death sentence and ordered him to be resentenced.
However, the Georgia Supreme Court reversed that decision and ruled Holsey had failed to show that the outcome would have been different if his lawyer had presented this additional evidence. In 2012, a federal appeals court ruled Holsey had not proved the Georgia Supreme Court's decision was "unreasonable."
In 2002, the United States Supreme Court barred the execution of inmates with mental disabilities, but left the states to determine who qualifies as mentally sound. This year, the United States Supreme Court invalidated a Florida statute that allowed inmates with an I.Q. of 71 or higher to be executed. In their Hall v. Florida ruling, the court argued Florida's rigid cutoff excluded the state from considering other evidence that may prove an inmate's disability.
Lawyers for Holsey argue his I.Q. is around 70, and say he never rose above a fourth grade level of intellectual functioning. His prison records, they argue, further document his mental disability.
But in Georgia, state law requires Holsey to prove he's mentally disabled "beyond a reasonable doubt." That's the strictest standard in the nation and extremely difficult to meet. Holsey filed an appeal with the Georgia Supreme Court that argued Georgia's standard is unconstitutional in light of the U.S. Supreme Court's ruling in Hall v. Florida. This afternoon, however, the Georgia Supreme Court denied that appeal along with a motion for a stay of execution, thus clearing the way for Holsey to be executed this evening unless the United States Supreme Court intervenes.
All inmates should have the right to be represented by lawyers not completely inebriated during trial. Even those who support the death penalty should be able to concede that allowing a mentally disabled man to be executed is a barbaric act that flies in the face of justice.
Update: The United States Supreme Court denied Holsey's application for a stay of execution as well as his petition for a writ of habeas corpus. He was executed by the state of Georgia at 10:51 p.m. Tuesday night.
The post Georgia Set to Execute Mentally Disabled Man Whose Lawyer was Drinking Heavily Throughout His Trial appeared first on Reason.com.
]]>Tonight at approximately 6 p.m. CST Texas is scheduled to execute Scott Panetti, a man who has suffered from schizophrenia and other mental illnesses for over 30 years.
First diagnosed with schizophrenia in 1978, Panetti was hospitalized over a dozen times by 1992 and involuntarily committed to a mental hospital at least twice. On one such occasion in 1986, Panetti had buried his furniture in the backyard because he believed the devil was inside it.
In 1992, shortly after Panetti stopped taking his medication, he shaved his head, dressed in army fatigues, and killed his in-laws with a hunting rifle in front of his wife and 3-year-old-daughter. He turned himself in shortly after, and told police officers that "Sarge" was responsible for the killings.
After a jury found him competent to stand trial, a judge allowed him to represent himself in court. At his trial, Panetti wore a cowboy costume and a purple bandana and attempted to subpoena Jesus Christ, John F. Kennedy, and the Pope, along with 200 others. His statements were often incoherent and rambling, and at one point he even fell asleep. In 1995, Panetti was convicted of the murders and sentenced to death.
The central issue at hand—one which Panetti's lawyers and the state of Texas have been arguing over for decades—is whether Panetti is insane and therefore ineligible for legal execution. In 1986, the United States Supreme Court ruled that executing a mentally insane prisoner violated the Eighth Amendment to the U.S. Constitution. However, the court never defined what constituted mental "competency."
The Fifth Circuit Court of Appeals, which has jurisdiction over the state of Texas, thus developed its own test for competency, which requires prisoners facing execution to have factual awareness of the impending execution and the state's reasoning for it, or that they're able to say they understand they're being executed by the state because of the crimes they've committed, regardless of whether they believe it or not. Because Panetti knew that he committed two murders, was set to be executed, and was aware of the state's reason for executing him, the Fifth Circuit court ruled in 2004 that he was competent to be executed. However, witnesses for the state, a psychologist, and a clinical psychiatrist testified that Panetti believed the real reason the state wanted to execute him was to stop him from "preaching the gospel."
That competency test wasn't good enough for the U.S. Supreme Court. In 2007, the Court reversed the Fifth Circuit's decision and ruled that to stand competent for execution, a prisoner must also have rational understanding of the state's reason for execution. This meant the state must now prove that Panetti's schizophrenic delusions don't inhibit him from understanding the reason for his punishment.
In 2008, the Fifth Circuit held a second competency hearing for Panetti. Like in 2004, multiple expert witnesses testified Panetti believed the state was executing him to stop him from preaching the gospel. Despite their testimony, the court found Panetti had "both a factual and rational understanding of his crime, his impending death, and the casual retributive connection between the two," and once again ruled him competent to be executed.
The state's reasoning behind their ruling relied not on the expert witnesses testimony, but on secretly-taped conversations between Panetti and his parents in which, according to the court, he "initiates a very rational, organized conversation with his parents about various states abolishing the death penalty," among other things. The statements made in these taped conversations prove Panetti has rational understanding of the state's rationale for his execution, the court said.
Panetti has not had a competency hearing since 2008, though lawyers assert his mental state has deteriorated since then. It's clear that they're not the only ones who believe Panetti is too mentally ill to be executed. In recent months, Panetti's case has generated huge amounts of outcry from groups and individuals normally silent about the death penalty in Texas, including former Texas Gov. Mark White, who called Panetti's trial a "sham," and 55 evangelical leaders. Even Ron Paul wrote to Gov. Rick Perry asking he grant Panetti clemency.
It's unknown as to whether or not any of this outcry will help stop the execution from taking place. Currently, appeals are pending with the Fifth Circuit Court as to whether a new hearing will be granted in lieu of his execution today. Unless the court allows another competency hearing to take place, Gov. Perry issues a 30-day reprieve to review the case, or the U.S. Supreme Court intervenes, Panetti will be strapped to the gurney come 6 p.m. tonight.
If Panetti's execution is carried out, it won't be the first time Texas has executed a mentally ill prisoner. In 2004, the state executed Kelsey Patterson despite his history of psychotic behavior. During both his competency hearing and trial, Patterson testified that devices implanted in him by his lawyers were controlling his actions remotely.
Regardless of whether Panetti is ultimately executed, the entire process that's played out in his case represents a gross miscarriage of justice. "This is a case where we've had cascading, catastrophic error and it all concerns the criminal justice system's failure to protect a severely mentally ill man," Kathryn Kase, one of Panetti's lawyers, told me yesterday afternoon. If Texas carries out the execution this evening, it will be an outrage.
Update: At around 11:45 EST, the Fifth Circuit Court of Appeals issued a stay of execution. The stay, which can be accessed here, reads as follows:
"We STAY the execution pending further order of the court to allow us to fully consider the late arriving and complex legal questions at issue in this matter. An order setting a briefing schedule and oral argument will follow."
It is unclear what "late arriving and complex legal questions" have arisen that weren't present in years past. If I had to guess, I'd say the public (and notably conservative) outcry may have played a role here.
The post Texas to Execute Severely Mentally Ill Man Tonight Despite Public Outcry (Updated) appeared first on Reason.com.
]]>The initiative changes the possession of most drugs, including cocaine and heroin, from a felony offense to a misdemeanor. Possession of certain, less common Schedule I and II substances (including LSD for some reason) will remain a felony offense. Certain property offenses such as shoplifting, grand theft, receiving stolen property, forgery, fraud, and writing a bad check will all be considered misdemeanor offenses, as long as these crimes involve $950 or less.
The initiative also allows offenders currently serving felony sentences for these offenses, including some inmates sentenced under the state's draconian Three Strikes law, to petition a court for resentencing.
For offenders who have previously been convicted of one or more certain serious or violent offenses, however, current convictions of these crimes would remain felonies punishable by 16 months, two, or three years in a county jail.
California's Legislative Analyst's Office (LAO) estimates California will save "several hundred million dollars annually, primarily from freeing jail capacity" at the county level.
LAO also estimates the initiative could result in the release of "several thousand inmates" from state prisons, which could temporarily reduce the state prison population "for a few years."
The initiative stipulates that the 65 percent of the savings achieved be used to support "mental health treatment, substance abuse treatment, and diversion programs for people in the criminal justice system, with an emphasis on programs that reduce recidivism of people convicted of less serious crimes," 25 percent of the savings be used on a program to reduce truancy and support students who are "at risk of dropping out of school or are victims of crime," and 10 percent be used to support trauma recovery centers and to provide services to victims of crime.
Some may say this ballot initiative was necessary to overcome the state government's lack of political will to pursue any type of meaningful sentencing reform to help reduce it's unconstitutionally overcrowded prisons. Indeed, Governor Brown vetoed legislation just last year that would have given prosecutors the choice of charging low-level drug possession as a felony or a misdemeanor, depending on the case.
Yet an overwhelming number of voters—58 percent—cast their ballot for Proposition 47 yesterday, a measure that's arguably much more "radical" than the sentencing reform bill vetoed by Brown last year.
The success of the measure can be attributed, in large part, to the amount of outside support it received.
All in all, the measure received roughly $10.8 million in financial support from groups and individuals of all political and ideological backgrounds, including conservative billionaire B. Wayne Hughes, Jr. and Netflix CEO Reed Hastings. Opponents of the measure managed to raise only $500,000. Notably, B. Wayne Hughes, Jr. and former drug warrior turned reformer Newt Gingrich co-authored an op-ed published in the Los Angeles Times touting the benefits of the measure's proposed reforms.
Proposition 47 also drew the support of a number of A-list celebrities such as Jay Z, Olivia Wilde, Brad Pitt, Cameron Diaz, John Legend, and others who were featured on the website, artistsfor47.com. For a criminal justice reform initiative, this type of support is truly unprecedented.
It's hard to believe that this measure passed in the same state in which voters once enacted the nation's most draconian Three Strikes law just 20 years ago, which required offenders convicted of any third felony offense, including minor drug possession offenses, to be sentenced to life in prison.
The success of this measure indicates that sentencing reform is starting to become palatable to more than just libertarians, but the general public. Criminal justice reform is certainly an issue both Democrats and Republicans agree is going to play a central role in the 2016 presidential election. Let's hope that what happened in California last night may be replicated elsewhere, either by legislators or voters themselves.
Corretion: The original version of this blog post wrongly stated that possession of LSD would remain a felony offense under Prop. 47. Simple possession of LSD, like with most other drugs, has been reduced from a felony to a misdemeanor offense with the passage of this initiative.
The post California Voters Make Possession of Most Drugs a Misdemeanor Offense appeared first on Reason.com.
]]>In an attempt to exploit these fears for political gain this midterm election season, candidates and independent groups have run ads in Nebraska, Kansas, Alaska, and Colorado attacking opponents for being "soft on crime".
Some of these ads are so heinous, they've drawn comparison to the infamous Willie Horton spot that aired in 1988. That ad went down in the annals for making people believe Democratic presidential candidate Michael Dukakis was to blame for the rape committed by a scary black prisoner who was on weekend furlough.
Here are some of the worst Willie Horton–style ad campaigns running this year:
Nebraska
The ad that most closely resembles the Willie Horton spot comes from Nebraska. Paid for by the National Republican Congressional Committee, it tries to link Democratic state senator Brad Ashford to the murders committed by Nikko Jenkins, a man who was released from prison early. The ad has been viewed over 162,000 times on YouTube.
Like the fear mongering Willie Horton ad, this ad plays up racial stereotypes with menacing footage of Nikko Jenkins, a black man heavily covered in facial tattoos, yelling at the camera while in his prison uniform. As this footage plays, a female narrator states Jenkins was released from prison after serving only half of his sentence because of the state's "good time" law, which Ashford supported and still defends.
Indeed, Nebraska's "good time" law, which was expanded in 1992 to allow prisoners to earn automatic credits toward reductions in their sentences, is why Jenkins was released after 10 and a half years. He had received a maximum 21-year sentence for two carjackings committed as a teenager and two assaults committed while behind bars.
But it's still not right to take away all offenders' ability to earn credit for good behavior just because there's a chance one of them might commit a crime in the future. The implication that Ashford, who didn't even vote on the law, is somehow responsible for Jenkins' murders is ridiculous at best.
If that's not bad enough, there's more. Yesterday, the NRCC released a second ad attacking Ashford for being soft on crime. The narrator once again links his support of the state's "good time" law to Nikko Jenkins' murders—and adds that he also supported removing sex offenders from the state registry.
According to the Omaha World-Herald, that claim refers to amendments Ashford offered that would allow the state to differentiate between high-risk offenders, like those convicted of child molestation, and low-risk offenders, like those convicted of public urination. As far as the NRCC is concerned, this means he wants to prevent families from knowing if sexual predators are in their neighborhoods.
Kansas
This ad comes from the current Republican governor of Kansas, Sam Brownback. It starts by showing two scary black men, the Carr brothers, who went on a "killing spree" and were subsequently sentenced to death row. The Kansas Supreme Court later overturned those sentences because of legal errors made during the sentencing phase of trial.
However, the narrator states that "liberal judges" changed the Carr brothers' death sentences and that Brownback's Democratic opponent, Paul Davis, "supported these judges." The ad goes on to accuse Davis of being a "liberal defense lawyer" who will appoint "liberal judges" to the Kansas Supreme Court who will let murderers, like the Carr brothers, "off the hook."
The thing is, the Carr brothers weren't let out of prison, as the ad suggests—their convictions stand. The likelihood that they'll be released before they die is roughly 0 percent. And even if their death sentences had been upheld, they likely wouldn't have been executed, as Kansas hasn't performed an execution since 1965.
But who cares about all of that when there's fear to manufacture and exploit?
Alaska
Alaska Senator Mark Begich, a Democrat, initially ran an ad attacking his Republican challenger, Dan Sullivan, on his crime record, but pulled it after it received massive backlash.
The ad, which can still be viewed on Politico, suggested that as the state's attorney general, Sullivan was responsible for the early release of a convicted sex offender who later murdered a couple and sexually assaulted their 2-year-old granddaughter. It features a retired police sergeant parking in front of the location where the brutal crimes took place and even lists the address.
But Jerry Active, the man accused of committing these crimes, hasn't been convicted yet. In fact, the trial hasn't even begun. The victim's family attorney contacted Begich's campaign and asked him to take down his ad, partly out of fear it could poison the jury pool.
Moreover, Sullivan had nothing to do with Active's release. He was let out of prison in 2009 after serving four years of a plea deal that, according to Politico, happened "because of a clerical error that took place before Sullivan became attorney general."
The controversial ad received a "pants on fire" rating from Politifact.com.
Sleazy, yes. Facutally inaccurate, potentially harmful to Active's trial and traumatizing to the victims' family? Who cares. An election is at stake!
Republican candidate for governor Bob Beauprez is running a similar ad suggesting Hickenlooper let a prisoner out who threatened to "kill as many people" as he could.
The ad ends with text that reads, "With John Hickenlooper as Governor, is your family safe?"
Terrifying, indeed.
Besides being inflammatory, inaccurate, and/or misleading, all these ads have the potential to do some real harm. A recent study published by the American Constitution Society and two Emory Law School professors found that airing a lot of state supreme court election ads makes justices less likely to rule in favor of criminal defendants.
It's one thing to run ads criticizing a candidate's record on crime, but using scary images of heinous criminals and attempting to link your opponent to the crimes they committed crosses a line. It's irresponsible, and it reinforces the misconception that crime is going up and politicians need to "do something" about it. Good policy rarely comes from hysteria.
The post 2014's Willie Hortons: Hysterical "Soft on Crime" Campaign Ads Make a Comeback appeared first on Reason.com.
]]>Eighty-two percent of Democrats, 71 percent of Independents, and 66 percent of Republicans all favor allowing nonviolent drug offenders who have served their sentences to vote.
There were discrepancies between those of different racial/ethnic backgrounds, however. An overwhelming number of African-Americans—91 percent—are in favor. However, 72 percent of whites, and only 66 percent of Hispanics are in favor. Still, there are clear majorities among all three groups polled.
As things currently stand, only two states—Maine and Vermont—have no restrictions on voting for convicted felons. In these states, felons may even vote absentee from jail or prison. However, the majority of states pose some restrictions on voting for those who have been convicted of a felony. In eight states, voting restrictions are imposed on offenders incarcerated for a misdemeanor offense.
Thirteen states and Washington D.C. restore voting rights for all convicted felons after they are released from prison or jail. In four states, voting rights are restored for convicted felons after they complete their term of incarceration and parole, and 20 states allow voting rights to be restored after convicted felons complete their term of incarceration, parole and/or probation.
Of the remaining states, various restrictions are imposed on those who have been convicted of felony offenses. Some states, like Virginia, allow only those who were convicted of a nonviolent felony to have their voting rights restored after completing their prison sentence, parole and/or probation, and have paid all of their court costs. Other states allow felons to have their voting rights restored only after receiving an executive pardon from the governor.
Florida, the state with the toughest voting restrictions for convicted felons, prohibits anyone convicted of any felony offense—even nonviolent offenders—from ever voting. As a result, it has the largest number of disenfranchised citizens out of any state in the country. As of 2012, 10.4 percent of the entire state population was prohibited from voting due to a felony conviction.
According to data provided by the Sentencing Project, roughly 5.85 million American citizens were disenfranchised through the criminal justice system in 2012. At that time, roughly 7 percent of all African-Americans had lost their right to vote.
Public opinion seems to side with Senator Rand Paul, who recently filed legislation that would allow individuals convicted of a nonviolent criminal offense to vote in federal elections after they have completed their terms of incarceration and parole/probation. That legislation, however, only has a two percent chance of being enacted according to govtrack.us.
There's no real public safety threat in allowing those who have completed their sentences—even those convicted of violent crimes—from expressing themselves at the ballot box. Still, it's a welcome sign that public opinion overwhelmingly favors allowing at least nonviolent drug offenders to vote after they've served their sentences.
The post 73 Percent of Americans Favor Restoring Voting Rights for Nonviolent Drug Offenders appeared first on Reason.com.
]]>Fueselier was immediately taken to the jail's hospital and held there for three days, brain-dead and unresponsive. On his third day in the hospital, the office of New Orleans Sheriff Marlin Gusman released Fueselier from custody, and he was transferred to a hospice. One week later, Fueselier died, and the official cause of death was listed as lung cancer. Because he was released from custody before he died, Fueselier's death was never investigated by the sheriff's office, and an official autopsy was never conducted.
According to a new multi-part investigative series published by Louisiana's Times-Picayune called "Dying at OPP," Fueselier was one of seven inmates who were released from custody shortly before they died. Because their deaths occurred after they were released, they don't appear on any official count of the jail's inmate fatalities. This, the Times-Picayune reports, is "a practice that critics say is an intentional circumvention of the public reporting requirements for in-custody deaths."
Beyond not officially reporting these seven deaths, Times-Picayune found that OPP failed to notify the families of several inmates who died while in custody. In some cases, families weren't notified until days or weeks after their relative had died.
In one case, the wife of an inmate was told her husband had been released when she called every day for two weeks; he had actually been dead the entire time. He died two days after he was brought to OPP on charges of domestic battery. In another case, the father of an inmate wasn't told that a guard had critically injured his son—who had been brought in two days earlier on charges of public drunkenness—until after he had been taken off life support. In a third case, the sister of an inmate was told she had been released when she had actually been declared brain dead, two days after being charged with biting a security officer. In all three cases, lawsuits have been filed alleging that mistreatment by OPP guards contributed to these inmates' deaths. The sheriff's office is fighting these claims.
Since 2006, a total of 44 inmates at OPP have died, including seven the sheriff's office did not report. According to the Times-Picayune, OPP's inmate death rate exceeded state and national averages "in all but one year from 2006 to 2011."
As one of the country's most notoriously awful jails, abuse, negligence, and incompetence have run rampant at Orleans Parish Prison for years. Things have gotten so bad that the jail was put under a federal consent decree in 2013 to improve conditions for inmates. In his opinion, Federal Judge Lance Africk wrote that the decree "is the only way to overcome the years of stagnation that have permitted OPP to remain an indelible stain on the community, and it will ensure that OPP inmates are treated in a manner that does not offend contemporary notions of human decency." (Emphasis mine)
The court ordered OPP to make several improvements, including reporting inmate deaths to a federal monitor who would then notify the U.S. Department of Justice. Despite these mandated changes, there are still no independent investigations after an inmate dies at the facility. Instead, New Orleans Parish sheriff deputies carry out inmate death investigations.
For now, families of inmates who have died at OPP have little consolation. Five lawsuits in total have been brought against the New Orleans Sheriff's Department over inmate deaths, but sheriff's lawyers are fighting them all.
The post Fail To Show Up at Traffic Court? Risk Dying at Orleans Parish Prison appeared first on Reason.com.
]]>The federal government and a number of states have enacted mandatory minimum sentencing laws over the past few decades, most of which were applied to drug offenses. These laws require judges to sentence offenders convicted of certain crimes to a minimum term of imprisonment, regardless of whether or not the judge agrees the sentence is in the best interest of justice. These types of sentencing laws prohibit judges from evaluating the circumstances of individual cases and assigning the punishment they find most appropriate.
Instead, mandatory minimums transfer sentencing authority from judges to prosecutors, who pressure defendants to plead guilty in exchange for a shorter sentence, rather than go to trial and risk receiving a much longer mandatory minimum sentence if convicted. According to a report by the United States Sentencing Commission, an average of 98.7 percent of offenders who were convicted of a federal drug offense pleaded guilty in FY 2013 to avoid going to trial.
The poll found that Americans of all races and political parties favor eliminating mandatory minimum sentences, and that support among all groups has grown since the end of last year.
When Reason-Rupe asked this question in December 2013, 74 percent of Democrats favored eliminating mandatory minimums, while 72 percent of Independents and 68 percent of Republicans agreed. This time around, 81 percent of Democrats, 75 percent of Independents, and 73 percent of Republicans supported eliminating mandatory minimums in favor of judicial discretion.
The results for this question were similar among Americans of different races/ethnicities as well. Seventy-seven percent of whites, 80 percent of African Americans, and 73 percent of Hispanics favored eliminating mandatory minimums. When this question was asked in 2013, 71 percent of whites, 69 percent of African-Americans, and 75 percent of Hispanics were in favor.
These results only demonstrate that Americans are overwhelmingly in favor of returning sentencing discretion to judges and do not indicate whether or not Americans support the type of lengthy prison terms mandatory minimum sentencing laws require for nonviolent offenders. But they at least make clear that public opinion no longer favors the status quo. Simply put, mandatory minimum sentences for nonviolent offenders are becoming increasingly unpopular and harder to defend.
The post 8 Out of 10 Americans Favor Eliminating Mandatory Minimum Sentences for Nonviolent Offenders appeared first on Reason.com.
]]>Two North Carolina men who were convicted of the brutal rape and murder of an 11-year-old girl in 1983 were exonerated yesterday after new DNA evidence proved their innocence.
The men, Henry Lee "Buddy" McCollum and Leon Brown, are stepbrothers. McCollum, 19 at the time of the crime, was sentenced to death and spent 30 years on North Carolina's death row, making him one of the longest serving death row prisoners in the state. Brown, 15 at the time of the crime, was also sentenced to death but was later retried and sentenced to life in prison. Both men are considered mentally disabled—McCollum's IQ is between 60 and 69 and Brown's IQ is 49.
Recent DNA testing of a cigarette butt found near the scene of the crime implicated convicted rapist and murderer Roscoe Artis, who lived a few hundred feet from the field where the body of the 11-year-old victim, Sabrina Buie, was found. Artis is currently on death row in North Carolina for the rape and murder of 18-year-old Joann Brockmann—a crime he committed less than a month after McCollum and Brown were arrested. Despite the fact that both murders were carried out in a similar way (both girls were raped, asphyxiated, and left in fields), within a month of one another, and in a town of roughly 4,000 people, Artis was never even considered as a suspect in the Buie murder.
No physical or forensic evidence tied either McCollum or Brown to the crime. Instead, their convictions were largely based on confessions written by police, which the men signed. In a recent video interview with Raleigh's The News & Observer, McCollum said, "I just made up a story and gave it to them so they would let me go home."
According to the Innocence Project, roughly 30 percent of defendants exonerated by DNA evidence gave false confessions, falsely incriminated themselves, or pled guilty to crimes they did not commit.
Both men later recanted their confessions and said they were coerced. At his trial, McCollum recanted his confession 226 times.
The prosecutor on the case, Joe Freeman Britt, who was once listed in Guinness World Records as the "deadliest prosecutor" after winning 46 death row cases. Known for his theatrics in court, Britt famously held the courtroom in a silence for five minutes during McCollum and Brown's trial to emphasize how long it took Buie to suffocate.
McCollum and Brown's innocence was proven only after the North Carolina Innocence Inquiry Commission, a state agency established in 2006 "to investigate and evaluate post-conviction claims of factual innocence," decided to take on their cases.
Before then, McCollum and Brown's guilt was never questioned. Indeed, McCollum was even used as an example by United States Supreme Court Justice Antonin Scalia to justify the death penalty. In 2010, the North Carolina Republican Party sent around campaign mailers containing McCollum's mug shot before the state's general election, attacking state Democrat's support for the Racial Justice Act.
Now retired, Britt told The News Observer last Friday he still has no doubts over the men's guilt. "You find a cigarette, you say it has Roscoe Artis' DNA on it, but so what? It's just a cigarette, and absent some direct connection to the actual killing, what have you got? Do you have exoneration? I don't think so," said the man whose prosecution relied solely on confessions written by police and signed by mentally disabled teenagers.
Defense attorneys say McCollum was the last person prosecuted by the "deadliest prosecutor" who remained on death row.
According to The New York Times, McCollum and Brown's release from prison "provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent." I'd go a step further and argue their innocence (or at least McCollum's) demonstrates, once again, just how broken the death penalty is in the United States. Isn't it time for it to just die already?
The post Mentally-Disabled Men Sent to Death Row 30 Years Ago By World's "Deadliest Prosecutor" Found Innocent appeared first on Reason.com.
]]>The post War On The Streets appeared first on Reason.com.
]]>The Department of Defense's 1033 program has allowed police departments across the country, including in Ferguson, Missouri, to acquire excess military equipment DoD is no longer using—including mine-resistant vehicles, planes, helicopters, machine guns, body armor, etc. This property is delivered to law enforcement agencies free of charge, too. All they have to pay is the costs associated with shipping and/or transportation.
According to the Law Enforcement Support Office (LESO), the facilitators of the 1033 program, each item given to local law enforcement agencies "must have a justification and be approved by both the State Coordinator and be approved by LESO Staff." Preference is given to those agencies that request property to be used for "counter-drug and counter-terrorism" operations. And, according to Pentagon press secretary Navy Rear Adm. John Kirby, "there's a lot of due diligence" involved in decisions made about the type of equipment police forces receive through the 1033 program.
"I want to make sure that it's clear that this isn't some program run amok here, or that there isn't proper accountability," Kirby told the press this week. "There is. And it's well thought-out."
However, according to a document that details every transfer made through the 1033 program to local law enforcement between 2006 and May 2014, some county police forces have received tens of thousands of dollars worth of items that one would expect to normally see at, say, a kids' birthday party—not in a police station. Here are some highlights of the ridiculous items some local law enforcement agencies have received through the 1033 program:
Musical Instruments
Since 2006, several counties have received tens of thousands of dollars worth of musical instruments. Some counties received enough instruments to start their own marching band, if they wanted to.
For example, Trumbull County, Ohio, was given a $2,300 euphonium, two $1,700 saxophones, a flugelhorn, a tenor trombone, a $2,000 alto horn, a clarinet, and a piccolo. Ashtabula County, Ohio, right next door to Trumbull, received two clarinets, four trumpets, three tenor trombones, four snare drums, three French horns, a bass violin, a bass drum, and 13 unnamed "musical instruments" or "musical instrument parts and accessories."
Bouncy Castle
The citizens of Genesee County, Michigan, can feel safer knowing their police are equipped with a $500 bouncy castle at its disposal (for crime fighting purposes only, of course!). In February, they were also given a French horn.
Ice Cream Makers & Icey Machines
Since 2006, three counties have received soft-serve ice cream makers, valued anywhere from $5,200 to $16,500. One county, Worth County, GA, was given an icey machine (for making slushies, etc.). They were also given a $3,200 vending machine, presumably to make up for the lack of soft serve availability.
Meat Slicers
Between 2006 and May 2014, five counties received meat slicers courtesy of the Department of Defense. Clark County, Indiana, was even lucky enough to receive two. The value of the slicers ranged from $880 to $4,780.
Xbox Games
Yes, Xbox games. I'm guessing Call of Duty and Grand Theft Auto are being used for police training purposes in Allen County, Ohio.
Popcorn & Hotdog Machines, Pizza Ovens
Since 2006, the Department of Defense has given Aiken County, South Carolina, a $1,500 popcorn machine, Clark County, Indiana, two $11,000 pizza ovens, and Maricopa County, Arizona, a hot dog machine and a $3,500 popcorn machine.
This certainly doesn't sound like a program that's "run amok," now does it?
The post Grenade Launchers, Helicopters, and…Popcorn Machines? Highlights of the Ridiculous Items Given to Police by the DoD appeared first on Reason.com.
]]>A new piece published by The Lens reveals that the Louisiana Department of Corrections (LDOC) tricked a local hospital into supplying it with drugs it intended to use for an execution that has since been delayed.
According to documents obtained and published by The Lens's Della Hasselle, the Louisiana Department of Corrections placed an order for one of the two execution drugs it needed, hydromorphone, with Lake Charles Memorial Hospital on January 28th—eight days before condemned child-killer Christopher Sepulvado was scheduled to be executed. The state already had the other drug it needed, midazolam, in stock at the time it placed the order, although the origin of that drug is still unknown.
When the hospital filled the hydromorphone order for LDOC, they assumed it was going to be used to treat sick inmates housed at Louisiana's Elayn Hunt Correctional Center, not to kill a death row inmate housed at the state penitentiary.
A spokesman for the Lake Charles Memorial Hospital told local Louisiana news outlet, KPLC, "At no time did [the hospital] believe or was led to believe that the drug would be used for an execution." Instead, a pharmacist at Elayn Hunt Correctional center told the hospital "they needed the drug, hydromorphone, for a medical patient."
Ulysses Gene Thibodeaux, a board member for Lake Charles Memorial Hospital told The Lens, "Had we known of the real use, we never would have done it."
This isn't the first time Louisiana has used shady tactics in an attempt to obtain lethal injection drugs. Emails released by the publication in January reveal that Louisiana prison officials explored illegally obtaining pentobarbital last September from a compounding pharmacy in Oklahoma that was not licensed to do business in Louisiana.
However, it appears that this is the first time a state has openly lied to a hospital in order to obtain drugs it wanted to use for an execution. What's more, Louisiana broke its own execution protocol in the process, since the drug was ordered 22 days after it was supposed to have already been in stock.
Ultimately, Sepulvado's execution was delayed for at least six-months in order for prison officials to review the "most effective" dosage levels of lethal drugs for its protocol. This delay came shortly after Clayton Lockett's botched execution in Oklahoma, which was carried out using one of the same drugs Louisiana intended to use on Sepulvado.
It's unclear if any actions will be taken against the state in light of this new information. According to Hasselle, "A hospital spokesman hasn't responded to comment when I asked if Lake Charles had any plans to sue the LDOC."
Louisiana state officials have refused to comment on the story, which—let's be honest—shouldn't be all that surprising at this point.
The post Louisiana Tricked a Local Hospital Into Supplying Execution Drugs appeared first on Reason.com.
]]>Another state, another botched execution carried out with secret new drugs. This time: Arizona, where convicted murderer Joseph Randolph Wood gasped and snorted for more than 90 minutes after his execution began. What should have been a 10- to 15- minute ordeal took 117 minutes for Wood.
According to witnesses, Wood "gulped like a fish on land" and made movements "like a piston: the mouth opened, the chest rose, the stomach convulsed." He gasped for air roughly 660 times over the course of the 117-minute execution—which had been carried out using a controversial two-drug cocktail the state had never used before.
One of the drugs, midazolam, has been used in flawed executions carried out in other states this year, including the horrific botched execution of Clayton Lockett in Oklahoma, who died of a heart attack more than 40 minutes after the procedure started. It was also used in Ohio on Dennis McGuire, who gasped and snorted on the gurney before being pronounced dead 25 minutes after the execution began.
In the weeks leading up to Wood's execution, his attorneys argued that Wood had a First Amendment right to information about the drugs that would be used to kill him, which Arizona—like many states throughout the country—has kept confidential. On Saturday, the U.S. 9th Circuit Appeals Court sided with Wood and ruled that the execution could not be carried out until Arizona provided him with information about the origins of the lethal injection drugs, as well as the qualifications of the personnel who were going to administer the drugs.
The 9th Circuit's ruling is significant, as it marks the first time a federal court has ever issued a stay of execution based on the issue of drug secrecy. In all previous challenges, the court has sided with states. (Notable that one of the judges who dissented from the decision was Judge Jay Bybee, known for signing the infamous "torture memos" in 2002, which authorized "enhanced interrogation techniques" used at Guantanamo Bay.)
Arizona state officials appealed, but the circuit court upheld the ruling. On Tuesday, the U.S. Supreme Court vacated the federal court ruling and cleared the way for the execution to proceed on Wednesday at 10 a.m. MDT. However, the Arizona Supreme Court halted the execution minutes before it was set to take place in order to consider a last-minute appeal by Wood's lawyers over the secrecy of the lethal injection drugs to be used.
A couple of hours later, the state supreme court dissolved the stay, and Wood was strapped to the gurney. At 1:52 p.m., the execution commenced. According to journalists present, he began to gasp for air roughly seven minutes after the procedure began, and continued gasping for more than an hour and a half. According to his lawyers, who had enough time to file an emergency motion for a stay of execution while he laid alive on the gurney, staff checked Wood for sedation at 3:02 p.m. and found he was still alive. At 3:49 p.m., Wood was finally pronounced dead.
Shortly after, Arizona Gov. Jan Brewer released a statement ordering the Arizona Department of Corrections to conduct a "full review of the process." However, because the review is going to be conducted by the very same people who were responsible for the botched execution yesterday, one should be skeptical that the investigation will be unbiased or thorough.
In her statement, Gov. Brewer also claimed, "Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer." This, she said, "is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims—and the lifetime of suffering he has caused their family." Wood was sentenced to death in 1991 for shooting and killing his estranged girlfriend and her father in 1989.
Brewer's response to Wood's death was predictable yet telling. Besides misrepresenting some eyewitness accounts, Brewer's comments reveal her ignorance of the role of the state in carrying out capital punishment.
Yes, it's true that Wood's victims suffered. And yes, the families of the victims have suffered as well, probably much more than Wood did last night. But there are limits to the type of punishment the state can impose on prisoners in America—the punishment they receive for their crimes isn't supposed to match the level of pain and suffering they impose on their victims or victims' families. Vengeance isn't the job of the state. To argue otherwise signals a fundamental misunderstanding of the restraints purposely put on the government to protect its citizens from abuse and tyranny.
Wood certainly won't be the last inmate to have his execution botched. As long as states continue to experiment on inmates with secret lethal injection drugs from presumably dubious sources without providing an ounce of transparency into the process, these grisly results are going to continue to repeat themselves again and again.
The post Barbarism in the USA: Arizona's Botched Execution appeared first on Reason.com.
]]>One doctor, James Heinrich, was responsible for the two-thirds of the tubal ligation referrals during that period from the biggest offender, Valley State prison.
Asked by CIR about his startling record, Heinrich justified the money spent sterilizing inmates by claiming it was minimal "compared to what you save in welfare paying for these unwanted children—as they procreated more." He has since been barred from future prison work.
Following the publication of the 2013 CIR article, California lawmakers called for a formal investigation.
Yesterday, the California State Auditor published a report that confirms over a quarter of the 144 sterilizations performed on female prisoners between 2005 and 2011 were done without obtaining proper consent. The report only details female inmates who underwent the sterilization procedure of tubal ligation, commonly known as having one's "tubes tied."
In California, a tubal ligation may only be performed on an inmate after her doctor declares it to be medically necessary and the service is approved by two committees: one in the prison and the other at the California Receiver's Office headquarters.
However, according to the auditor's report, both committees approved only one of the 144 procedures performed.
In fact, the Receiver's Office wasn't even aware that inmates were being sterilized until January 2010, when a legal advocacy group called Justice Now began alleging that medically unnecessary sterilization procedures had been performed.
Some additional findings of the California State Auditor's report include:
These illegal sterilizations, and potential motivations of doctors who encouraged the women to consent to them, echo California's ugly history of sterilization abuse. In 1909, the state passed a eugenics law that allowed state officials to sterilize those considered "feeble-minded," prisoners exhibiting sexual or moral "perversions," and anyone with three or more criminal convictions. California's eugenics program was apparently so "successful" that in the 1930s, members of the German Nazi party asked California eugenicists for advice on how to run their own program.
Between 1909 and 1964, California forcibly sterilized roughly 20,000 people. In 2003, then–Gov. Davis issued a formal apology to victims of the grisly practice, which has been officially banned since 1979.
California legislators are currently considering legislation that would disallow all inmate sterilizations for purposes other than life-threatening emergencies and to cure physical illness. Last month, the state senate approved the measure. It is currently before the state assembly.
The post Report: California Illegally Sterilized Dozens of Female Inmates appeared first on Reason.com.
]]>A bill that would have brought one of the toughest lethal injection secrecy regimes in the country to Louisiana was pulled by its sponsor just hours before the 2014 legislative session came to an end yesterday.
The bill, HB 328, has a peculiar genealogy. It started out as a backdoor reauthorization of the electric chair in the Bayou State. After a few weeks, the legislature decided Gruesome Gertie wasn't worth resurrecting and abruptly changed course.
In April, the legislature rewrote HB 328 to give cover to Louisiana's Department of Corrections for the sloppy, illicit practices officials had attempted to get away with over the past few months—such as illegally purchasing lethal drugs out of state (from the dubiously named compounding pharmacy, The Apothecary Shoppe, in Oklahoma last year), changing its drug cocktail protocol without giving sufficient notice (as in the case of child-killer Christopher Sepulvado, whose execution has been stayed twice over this issue), and keeping information about the execution drugs a secret (even from inmates set to be strapped to the table). The bill also would have prohibited any public inquiry into botched executions.
The real reasons for scrapping the legislation—after both houses of the Louisiana legislature approved it—are still unclear. Republican state Rep. Joe Lopinto told reporters yesterday, "We passed a resolution today to study this issue. There's no reason for us to rush through and pass piecemeal legislation that will only be a short-term fix for something that needs a long-term solution."
A growing number of other states have adopted secrecy measures regarding the procurement of execution drugs, such as Oklahoma and Missouri, in response to a shortage of the drugs made by the only FDA approved manufacturers, who stopped making the drugs available for executions.
Among the states to adopt secrecy measures is Georgia, which passed a law that makes the identity of the pharmacy that supplies the state with its execution drugs a "state secret." That law has faced a number of legal challenges from lawyers, but the state supreme court upheld the law last month on the grounds that it made executions "more timely and orderly." Legal challenges to secrecy measures are currently pending in numerous other states.
The Guardian, Associated Press, and three local newspapers have filed suit over Missouri's lethal injection secrecy measures, asserting that the public has the right to know "the type, quality and source of drugs used by a state to execute an individual in the name of the people," under the first Amendment of the U.S. Constitution.
The fact that Louisiana's lethal injection secrecy bill was scrapped yesterday signals that at least some state legislators, like Lopinto, are willing to reconsider the costs and potential unintended consequences of allowing states to conduct its most grisly business behind closed doors. Let's hope that others follow suit.
The post Louisiana Tries to Bring Back Electric Chair and Make Lethal Injection Drugs Secret, Luckily Fails at Both appeared first on Reason.com.
]]>A timeline of Oklahoma's botched execution (covered yesterday) was released today by Robert Patton, director of the Oklahoma Department of Corrections. The timeline revealed that Clayton Lockett was Tasered and cut his own arm hours before he was executed. The timeline also revealed that the lethal injection IV was inserted into Lockett's groin area. The insertion area was "covered with a sheet" before the curtain was lifted to prevent witnesses from viewing his groin. Prior to inserting the IV, staff examined both of Lockett's arms, legs, feet, and his neck and concluded that "no viable point of entry" was located.
It seems highly suspicious that a man, who was described by his lawyer as being healthy and a non-drug user, would have no "viable point of entry" for the IV besides his groin.
A lot of information was left out of the timeline, which raises questions about whether or not it's fully transparent. For example, it fails to mention Lockett thrashing violently and attempting to speak, despite having been declared unconscious. It also does not include any information about what happened between 6:56 p.m., when the director of the Oklahoma DOC called off the execution, and 7:06 p.m., when Lockett was pronounced dead. Finally, little information was included about what happened after the curtain was lowered at 6:42 p.m. The timeline states that the doctor checked the IV at 6:42 p.m. (the first time it was checked since Lockett was declared unconscious at 6:33 p.m.) and found "the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both." However, there's no information about what happened between 6:44 p.m. and 6:56 p.m., besides details of a phone conversation between the warden and the director, in which the warden admits that not enough drugs had been administered to cause death.
In the document, Patton also recommended that the Court of Criminal Appeals issue an indefinite stay of executions in the state.
The post Botched Execution Timeline Raises Questions appeared first on Reason.com.
]]>Last night, a horrific scene played out at the Oklahoma State Penitentiary as prison officials attempted to carry out the first of what was supposed to have been a double execution.
At 6:23 p.m., the execution began for Clayton Lockett, convicted in 1999 of killing 19-year-old Stephanie Neiman.
Five minutes after a cocktail of lethal drugs was injected, Lockett began shivering, breathing deep, blinking, and gritting his teeth. Seven minutes into the execution, Lockett alerted prison officials that he was still conscious. Ten minutes into the execution, prison officials announced that he was finally unconscious. Thirteen minutes in, Lockett moved his head from side to side and then lifted it off of the bed. Fifteen minutes in, Lockett was mumbling, breathing heavily, and appeared to be struggling. Sixteen minutes in, Lockett said "man" out loud, and tried to get up. Following this, a female prison official told horrified eyewitnesses, "We are going to lower the blinds temporarily." The blinds were never lifted.
Minutes after the blinds went down, the director of prisons told eyewitnesses there had been a "vein failure" and that he was using his authority to issue a stay of execution. Less than a half hour later, after the director of prisons admitted the execution had been botched, Lockett was pronounced dead from what officials said was a heart attack.
Shortly after Lockett's grisly death, Oklahoma Gov. Mary Fallin (R) issued an executive order granting a 14-day stay for stay of execution for Charles Warner, the inmate who was scheduled to be executed two hours after Lockett. Warner's execution is now scheduled for May 13.
In her press release, Governor Fallin said that she had asked the Oklahoma Department of Corrections "to conduct a full review of Oklahoma's execution procedures to determine what happened and why" during Lockett's botched execution.
Executions in other states have been botched before, but what makes what happened in Oklahoma last night so particularly grotesque is that it could have, and should have, been prevented.
Over the past several months, questions had been raised over the constitutionality of the state's lethal injection secrecy law, which allowed state officials to prevent the disclosure of any information about the drugs used in lethal injections. Lawyers for condemned inmates argued that without being able to know even the most basic information about these drugs, it would be impossible to verify whether or not the executions carried out would comport with the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment.
On April 21, the Oklahoma Supreme Court stayed the executions of Lockett and Warner, which were scheduled to take place on April 22 and April 29, so that the justices could evaluate the legality of Oklahoma's secrecy law.
In an unprecedented move, Gov. Mary Fallin proclaimed on April 22 that Oklahoma's executive branch would not honor the state Supreme Court's stays of execution, and issued an executive order that granted a seven-day stay of execution for Clayton Lockett.
Even more shocking, a Republican state representative, Mike Christian, introduced impeachment proceedings on April 23 against the five state Oklahoma Supreme Court justices who had voted for the stays of execution, stating that the justices had used "unsupportable arguments regarding constitutional rights."
On April 24, the Oklahoma Supreme Court caved to political pressure, and declared that the state's injection secrecy law was constitutional, allowing the botched execution to proceed on April 29 as Governor Fallin ordered.
Besides the questions over the constitutionality of the state's secrecy law, concerns had also been raised over the state's essentially experimental three-drug execution cocktail, which included the drugs midazolam, vecuronium bromide, and potassium chloride.
This drug combination has only been used once before—in Florida. However, Florida's protocol called for five times more midazolam than Oklahoma's, which led some to predict the execution might not be effective. Because these drugs were obtained through secret means and information about them was protected under the state's secrecy law, there was no oversight from experts on the quality of the drugs.
Medical experts warned Oklahoma officials of the possibility of a botched execution, and defense attorneys asked them to open up the lethal injection process to review by the courts, doctors, and the public because of the dangers of this untested drug combination. It really should come as no surprise that this execution played out as it did.
If the state wasn't obsessed with killing these inmates so quickly and recklessly, and instead allowed the process to be transparent and open for review, Clayton Lockett's botched execution could have been prevented.
Instead, the state elevated an unsympathetic killer to a symbol of what the death penalty has become in states that are adopting secretive and experimental execution methods: a reckless abandonment of the rule of law.
UPDATE (2:07 p.m. ET): At roughly 1:00 p.m. ET, White House Press Secretary Jay Carney stated that Lockett's botched execution fell short of the humane standards required when capital punishment is carried out. Carney also relayed that Obama believes evidence shows the death penalty doesn't effectively deter crime, but the crimes in Lockett's case were indisputably heinous and merited the death penalty. As CBS reporter Andrew Cohen notes on his twitter feed, the Justice Department has remained mostly silent as challenges to injection secrecy have failed in federal courts across the country in recent months.
UPDATE (3:21 p.m. ET): In a statement given before the press, Oklahoma Governor Mary Fallin said there will be an independent review of the state's execution protocols following last night's botched execution. Fallin said the review will be led by Oklahoma Department of Safety Commissioner Michael Thompson.
According to journalists present, Fallin walked off the stage after her statement and did not take questions from the press.
Questions still remain over how this review will address the lack of transparency over the execution drugs as well as whether or not Warner's execution will be delayed beyond the current 14-day stay.
The post Oklahoma's Horrific Botched Execution Could Have Been Prevented appeared first on Reason.com.
]]>Early this morning, Michael Taylor became the fourth inmate in four months to be executed by the state of Missouri with drugs obtained from unknown sources. Taylor was on death row for abducting, raping, and murdering a 15-year-old girl in 1989.
Missouri has a history of flouting the law when it comes to its recent executions. Last month, the state executed convicted murderer Herbert Smulls with pentobarbital that was likely illegally obtained from The Apothecary Shoppe, an Oklahoma compounding pharmacy not licensed to do business in the state of Missouri.
Missouri executed Smulls while his appeal was still pending in the United States Supreme Court. The Supreme Court denied Smulls' final stay request at 10:24 p.m., but Smulls was pronounced dead four minutes earlier at 10:20 p.m. This was the third straight execution carried out by Missouri corrections officials while appeals were still being considered by courts. Taylor, however, was executed after his appeals were denied.
Little is known about the drugs used to execute these four men prior to their executions. Indeed, a number of states that still carry out the death penalty, including Missouri, have become much more secretive about where they have been procuring execution drugs from since European suppliers of the two FDA-approved drugs made them unavailable for executions in the United States in 2010 and 2011.
While Smulls and the other men were executed with drugs likely obtained from the Apothecary Shoppe, the compounding pharmacy agreed to not provide the state with drugs for Taylor's execution. Last week, state officials announced they had obtained pentobarbital from another unnamed source. Information about the source and the drug is crucial to know, as unknown or untested drugs are more likely to result in a painful death, therefore resulting in cruel and unusual punishment.
Without this information, lawyers are left only to assume the state carried out this and previous executions in a way that respected the constitutional rights of the condemned.
A similar story will play out in Florida this evening. Tonight, Florida is set to execute Paul Howell, who was convicted of killing a state highway patrolman with a pipe bomb in 1992. Howell will be the fourth person executed in Florida with a new combination of drugs that have been challenged by lawyers of condemned prisoners as a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. So far, challenges to the state have been unsuccessful, and it's likely that Howell's execution will take place as scheduled.
In 2013, Republican Florida Governor Rick Scott signed the "Timely Justice Act" into law, which seeks to accelerate the state's death penalty process. The law requires the governor to sign a death warrant within 30 days of the conclusion of clemency review and schedule an execution date within 180 days after the warrant is signed. Florida currently has 403 inmates on death row. Since 1976, 77 men have been executed in Florida, and 24 Florida death row prisoners have been exonerated – more than any other state.
Recent executions in Missouri and Florida highlight a troubling trend that's been taking place across the country. States, with little to no oversight, are shoving new and experimental drugs into criminals' veins while keeping information about these drugs a closely guarded secret.
The post Secret Execution Drugs Used Again in Missouri appeared first on Reason.com.
]]>Just after midnight tonight, convicted murderer Herbert Smulls will be executed by the Missouri Department of Corrections. On February 5, Christopher Sepulvado, convicted of killing his stepson in 1992, will meet the same fate in Louisiana.
It's likely that both men will die not knowing what exactly is being shoved into their veins.
Information about the drugs that will be used to kill these men—including where they came from, or if they've been tested for purity—has been kept a closely guarded secret by state correctional departments in both Louisiana and Missouri.
States became much more secretive about where they procure execution drugs from after sources of name-brand, FDA-approved drugs made their products unavailable for executions in the United States in 2010 and 2011.
Lawyers that represent both condemned prisoners have been trying to get their states to reveal information about the drugs, but have so far been unsuccessful.
Both Missouri's and Louisiana's state correctional departments argue that the identities of these pharmacies are protected under a state law that allows the identity of those involved with executions to be kept confidential.
Lawyers that represent both condemned prisoners argue that states must answer questions about whether or not the execution will be humane and comport with the Constitution. Without information about the drugs, those questions have gone unanswered.
According to Megan McCracken, Eighth Amendment Resource Counsel at U.C. Berkeley School of Law's Death Penalty Clinic, "If lawyers for the condemned prisoners can't get the information [about the drugs], then they cannot meet their legal burden in court to show that there's a substantial risk of harm."
By keeping this information a closely guarded secret, states are asking condemned inmates to take their word for it that the source is legitimate and the drugs won't result in cruel and unusual punishment when administered.
However, new information reveals that Louisiana may be breaking the law to execute Christopher Sepulvado on February 5.
In a court document filed on Friday, Louisiana officials admitted that the Department of Corrections has not yet obtained the pentobarbital for Sepulvado's execution. Instead, officials admitted they are "in the process of procuring 15 grams of pentobarbital," and would disclose more information when they have the drug in their possession. The court document can be viewed in full below:
However, according to the state's execution protocol, Louisiana must verify that the pentobarbital is in stock at least 30 days prior to a scheduled execution. If the state executes Sepulvado next week, it will be breaking its own protocol.
Additionally, according to recently released emails, Louisiana prison officials looked into illegally obtaining pentobarbital from The Apothecary Shoppe, a compounding pharmacy located in Oklahoma, last September. In the emails (which can be viewed here), The Apothecary Shoppe asked Louisiana to complete a non-disclosure agreement, which it attached.
The Apothecary Shoppe is not licensed to provide drugs in Louisiana, according to the state pharmacy board's online database. If the state does purchase pentobarbital from this pharmacy, it will be breaking state law in addition to its own protocol.
This above-mentioned email is the only available written communication between Louisiana officials and a pharmacy regarding the procurement of pentobarbital. Nothing else has been made available since then, and it's unclear if anything more will.
With Sepulvado's execution one week away, it seems that Louisiana officials are trying their best to run out the clock, hoping they won't be held accountable for any wrong-doing after the fact.
In Missouri, recent evidence has shown that the pentobarbital that will be used to kill Herbert Smulls may be contaminated, and if so, will likely result in a painful death. It's also likely that Missouri illegally purchased this pentobarbital from a pharmacy that is not licensed to do business in the state.
Lawyers representing Smulls filed a motion for a 60-day stay of execution on January 21. The motioncites the deposition of a Missouri prison system executive, David Dormire, in which he admits "the pentobarbital intended to be used to execute Mr. Smulls had been picked up on January 14, and was being stored in a locked location by the Department." Furthermore, he states the expiration or "use by" date of the compounded pentobarbital was "30 days from being compounded," and that the pharmacy had directed the Department to store the pentobarbital at room temperature.
However, according to the United States Pharmacopeia (USP) standards cited by Smulls' attorneys, "high risk" compounded drugs, such as pentobarbital, should be maintained at room temperature for a maximum of 24 hours before administration because of the risk of degradation.
According to pharmacy expert Larry Sasich, whose affidavit was cited in the motion, improper storage of pentobarbital "creates a very high risk that the compound drug will degrade or allow for more rapid growth of bacteria," which can lead to a "substantial risk of pain and suffering" upon injection.
By the time Smulls is executed, the pentobarbital will have been stored at room temperature for 15 days.
A separate expert declaration by Sasich filed by Smulls' lawyers last Friday reveals that the pentobarbital sold to the Missouri Department of Corrections was approved by Analytical Research Laboratories (ARL)—the same lab that approved drugs made by New England Compounding Center that caused a deadly meningitis outbreak that killed 64 people and sickened over 700 others nationwide in 2012.
The legality of these purchased drugs has also come into question in recent days.
Last week, the state of Missouri disclosed a heavily redacted copy of a license from the pharmacy that provided the pentobarbital to Missouri newspaper The Pitch in response to an open-records request. The Pitch also obtained a list of licenses processed by the Oklahoma Board of Pharmacy the same day this redacted pharmacy's license was issued. The Pitch was able to narrow the source down to two likely pharmacies, neither of which is licensed to sell drugs in or to Missouri.
Regardless of all of this information coming to light in recent weeks, the 8th U.S Circuit Court of Appeals in Missouri issued a ruling late last Friday night that all but guarantees the state will execute Herbert Smulls with drugs that could be illegal as well as contaminated.
From the ruling:
In sum: "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives."
This ruling, and the legal precedent it follows, is hugely significant, as well as disturbing. The court essentially ruled that death-row inmates must prove that Missouri's use of compounded pentobarbital is the worst of all "known and available alternatives." That, of course, is impossible when information about the drug has not been made readily available.
Essentially, the court shifted the burden of proving that the drugs do not constitute "cruel and unusual punishment" away from the state, and onto the prisoners who are barred from learning the most basic information about the drugs. This ruling could prevent any death-row inmate from ever inquiring about the drugs Missouri chooses to use against him in the future.
It's imperative that this grim, but some might say necessary, role of the state is carried out with transparency and oversight to ensure it's done legally. So far, Missouri and Louisiana have shown they are willing to break their own execution protocols and laws at the expense of the condemned when they think that no one's looking.
Update: On January 27, Louisiana's Department of Corrections confirmed in an email statement, published by Louisiana's The Times-Picayune, that it was revising its execution protocol to allow for the use of 10 mg of midazolam and 40 mg of hydromorphone if pentobarbital isn't available to be administered.
Midazolam and hydromorphone are the same drugs used in the controversial execution of Dennis McGuire, which took place in Ohio on January 16. McGuire's execution lasted 26 minutes, the longest since Ohio resumed the death penalty in 1999.
The email did not provide any additional information regarding where the state was procuring these new drugs from, or if it was even in the process of procuring the drugs at all.
Update 2: On January 28, the United States Supreme Court ordered a temporary stay of execution for Herbert Smulls while it reviews petitions filed by his lawyer over the state's secrecy over its execution drugs.
The post Herbert Smulls To Be Executed With Secret (and Likely Illegal) Drugs at Midnight appeared first on Reason.com.
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