sentencing – Dirtsa's

Tips For Being on Probation

After working 5 years in a private probation office, I have some easy advice to offer out to those who may be on probation. To make their time spent easier, more comfortable, possibly help them not extend their stay…

If you are going to insist on continuing to sell pot, do not bring a pound of prepackaged baggies in your coat, to your probation meeting. Your PO will smell it, search your coat, and you will be arrested.
If you are going to cheat on your UA (urine analysis – pee in a cup in front of a stranger to prove you’re sober), do not use animal pee… It makes for an awkward conversation at your next meeting… “So, when were you bit by the werewolf?”
Or your girlfriends… “Congratulations sir, you’re pregnant.”
Don’t ask if you can drink the left over pee. No one needs to know you’re on that cleanse.
If you’re going to use a Wizinator (fake strap on penis that pees stored urine), this is not the time to brag. The person testing you has likely seen you test before, an average Asian man does not one day come in with a big black dick.
Don’t cry during the UA. Neither you nor the tester wants to be there, they can not make anything different. You either pee in the cup or you don’t.
Peeing in the lobby, on the floor, and on the guy in front of you’s flip-flop/foot, because the long line is annoyingly long, will never go over well in front of the judge.
Threatening your PO’s life in the testing lobby is not a good idea. The desk staff interacts with the courts daily, likely knows your PO, and may care if they die. They will report you.
Your ankle monitor did not ‘just fall off’. Ever.
If you’re on pretrial and arguing incompetents, due to not being able to retain information for more than 5 minutes… Don’t call your mom a bitch while loudly correcting her on your schedule for the following week, during your meeting. Your case manager will report you.
Don’t ask the staff out to the bar for drinks. Especially if they are supervising your UA’s for alcohol consumption/DUI. They will always say no, and will report you.
Don’t ask anyone out for a one-night-stand in the lobby of the Probation/UA office. You may never call her back, but you’ll likely see her within a couple weeks in the lobby again. It will be awkward for all.
If you’re not on probation, chucking a Red Bull can at the front door and screaming ‘Fuck the police!’ is a good way to try to change that.
Your child is not allowed in here, not to inconvenience you, but because there are pedophiles that come here. Do you want your kid sitting next to a pedophile in the lobby? Why would you want your 7+/- year old to see this shit anyhow? Find a sitter.
Yes, that’s probably vomit… Or shit.
If you work in probation, transferring to the half-way house will not make for a friendlier less stressful work environment.
If you get your girlfriend to take a job as a UA tester, to try to steal your case file from your PO in the same office… Know that even if she makes it that far, before the staff figures out you’re dating, it’s just a hard copy. There’s several different copies in several CJS data bases. All records are recorded in computer systems. All you might accomplish, is needing to replace all the paperwork you provided, proving you’d completed your court ordered classes, community service, and so on… Like seriously… Don’t do this, it’s beyond stupid.
If you break into the probation office to steal your file, read tip 17; and remember, if all you do is take your file (and maybe set your PO’s desk on fire….), they will know who did it.
If you break in (tip 17 again), steal your file, some of your friends, and a few random ones, it’s just going to take a little longer to figure it out… But trashing your PO’s office narrows it down.
If Jesus didn’t want you to pee in a cup on a Sunday, Jesus would have stopped you from driving drunk in the first place. Stop screaming at people who have nothing to do with your being there.

Jocelyn Johnson

Wrongful Convictions

Wrongful convictions are a miscarriage of justice in which an innocent person is convicted, sentenced, and imprisoned or even executed for a crime they did not commit. Wrongful convictions happen at all levels, from misdemeanor to death penalty, the evidence shows thousands of people have been wrongfully convicted and imprisoned throughout the history of the United States Judicial Systems. There are several independent and combination reasons for wrongful convictions, along with options for those convicted to appeal the rulings. However, for all the progress we make as a society in our judicial systems, we still fail dozens of people a year (going by the optimistic numbers that don’t account for those yet undiscovered).

What causes wrongful convictions? Usually a combination of factors. The leading cause is Eyewitness Misidentification, being linked to about 75% of cases. Any entry level psychology course will show, human memory is flawed, research shows that people neither ‘record’ events ‘in play’, nor later ‘recall’ them exactly as they happened. Memories distort and degrade under stress and over time. Also, they are also easily contaminated by preconceptions and other people. There are also those convicted due to the witnesses knowingly lying for the purpose of convicting the accused, for varying personal reasons.

Junk Science is when scientific methods are used to prove guilt, however, the methods used are not properly regulated, come with inadequate validation of their reliability or significance, are preformed by under-qualified labs and/or technicians, and some are due to unethical practices, incompetence or plain sloppiness. Overall, they do not hold to proper scientific standards. ‘Proper’ scientific examinations have freed hundreds of wrongfully convicted people.

DNA forensics is the most regulated in it’s testing methods, however, the other methods vary greatly from there. “A subsequent review identified forensic science testing errors in 63% of the wrongful convictions and false or misleading testimony by forensic experts in 27%” (Giannelli, Paul, 2011.) Like everything in the justice system, the science is only as accurate as the human producing the results.

False Confessions are another cause of wrongful convictions, being involved in about 25% of cases, a third of which were juveniles. Regardless the confessors age, race, mental state, and so on, most have one thing in common, at some point they decided confessing was easier than fighting to show their innocents. Then, there are those who think they are helping someone (taking the blame or feel responsible though they are not), as well as those who are mentally ill, and others who would have less interest or ability to appeal or be known of.

False confessions can also go hand and hand with Government Misconduct. Improper interview techniques, such as denying access to a lawyer, mistreating the detainee, taking advantage of a member of an ‘at risk’ community (mentally challenged, Juvenal, the elderly, etc…). Up to outright ignoring evidence to the contrary and proceeding, evidence planting and tampering (with evidence, witnesses, and so on.). Government misconduct is arguably the most reprehensible cause for wrongful convictions.

Snitches, witnesses who testify for an incentive, have caused the conviction of about 19% of the cases overturned. Often times, juries are unaware that a witness is a snitch, weather it’s time off their sentence, privileges, or just monetary compensation, knowing testimony is ‘bought’ can make a big difference in it’s credibility. While there is a generally held code among inmates not to snitch, it happens regularly, more often when rewarded.

And, even if none of the aforementioned effects someone, wrongful convictions can come simply from having a Bad Lawyer. Weather under-prepared, under-skilled, overworked or what-have-you, a bad lawyer can be all it takes to put an innocent person in jail or prison.

Cameron Todd Willingham’s case shows how several of these factors can play into a false conviction and execution. Mr. Willingham (a widower) was convicted of the arson murder of his three daughters, and sentenced to death in 1991. A heater in the girl’s bedroom ignited a house fire in the night, Mr. Willingham was the only survivor. He maintained he woke in the night to the smoke, and upon failing to get the girl’s bedroom door open he ran outside as the fire engulfed the house. The prosecution argued the (non-forensic) arson investigation showed acceleration points, had burned fast and hot, and was set intentionally. They also produced a cell-mate, Johnny Webb, witness to testify that Willingham had confessed to him. During sentencing a psychologist, James Grigson, cited a skull and serpent tattoo and band posters as evidence to sociopath tendencies, along with his erratic behavior in the moments and days following the fire. They claimed financial gain as motive.

In appeals, it was brought up that the psychologist that testified, had been expelled from the field since, for unethical behavior. Gerald Hurst (a renowned forensic-arson expert) reexamined all the physical evidence and could refute and discredit every piece with peer-reviewed and repeatable testing methods. Other fire investigators had also found the same evidence during a previous appeal. There was even another fire due to a faulty heater (the same model), that left an identical burn pattern (the main citation for arson evidence), while he was on death row. The Texas Governor at the time, Rick Perry, is accused of impeding the writ of habeas corpus investigation. He’s said to have replaced three commission members, to sway the findings, to uphold the conviction. The DA in the case has been accused of suppressing evidence that could have provided reasonable doubt, and the witness has been recorded stating he lied in his testimony, in exchange for time off his own sentence. Mr. Willingham was executed in 2004.

What can be done if wrongfully convicted of a crime? If sentenced to death, one at least has the benefit that ‘exhausting the appeals’ is mandatory. Though, 2% (that have been proven) of the death row population has been wrongfully executed, since the death penalty’s reinstatement in 1976. Another 12% of those sentenced to death, since reinstatement, have been exonerated prior to execution. The first step regardless of conviction level is to decide who one appeals through, weather one goes through a non-profit, personal lawyers, or independently. The Innocents project for example (non-profit), will only accept cases where the defendant is ‘fully innocent’. Other organizations will help in situations such as ‘it wasn’t murder, it was self-defense’, if they feel it holds merit and aligns with their core values. Some of these groups are non-profit and free or financially assisted, others are not. Privet attorneys will take any case they feel they can win, but unless it’s through a pro-bono (which can narrow eligibility), this is often too expensive for most inmates to maintain. The prisoner can also file with the courts directly on their own behalf, without a lawyer (most frequented method).

The prisoner must file a petition for a writ of habeas corpus with the courts, including the facts of the case and the evidence to their being held illegally (wrongfully convicted). The petition can be filed by mail, online, or in person with a filing fee. Some states waive this fee for the first few filings or if the petitioner is deemed unable to afford it (though there is a limited number of times this applies to each case), the costs involved are one reason some inmates stop trying to appeal. If one is using a lawyer or has found an organization to aid them, they would send their petition to them, they would then review it for validity and likelihood of the case being overturned. The review process takes several months in non-profit organizations, but can be much faster through personal lawyers, there is no official review process for direct filing by a prisoner.

Once the petition is filed the courts serve it, in that the party claimed to be at fault (facility/warden) for the wrongful detention in question, is informed of the petition and the courts decision as to rather they need to provide a response. From here, a judge takes the petition into consideration to decide rather to elevate it into a writ, or to dismiss it.

Once a petition becomes a writ, a hearing is set. The hearing is a full trial with evidence and witnesses. It can involve a jury, but only it’s focus is the wrongful conviction, not the original crime involved. The outcome of this hearing is the ruling. If denied, and the conviction upheld, the prisoner can start the process over with new findings or evidence. Many inmates give up at this point due to funding and lack of new evidence.

Wrongful convictions can be fought, but it is difficult, time consuming, and expencive to win. The more appropriate correction is with the original conviction processes. Starting with being more selective in the type of and experience level of scientific testing and administrators/experts admissable in court. To requier proper disclosures reguarding eyewitness reliability, and if the witness is profiting in any way. And, like many of the problems in the criminal justice system, uncloging it or properly funding it, so that the lawyers and courts had the proper time to spend on a cases, would go miles.

References

Bernhard, Adele. “Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated.” Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated by Adele Bernhard :: SSRN. SSRN, 2004. Web. Oct. 2016. <https://papers.ssrn.com/sol3/papers.cfm? abstract_id=1396849>.

“Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas – Innocence Project.” Innocence Project. N.p., 12 Sept. 2010. Web. Oct. 2016. <http://www.innocenceproject.org/cameron-todd-willingham-wrongfully-convicted-and- executed-in-texas/>.

Giannelli, Paul. “Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs.” Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs by Paul C. Giannelli :: SSRN. SSRN, 7 Sept. 2011. Web. Oct. 2016. <https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1083735>.

Leo, Richard. “Studying Wrongful Convictions: Learning from Social Science.” Studying Wrongful Convictions: Learning from Social Science by Richard A. Leo, Jon B. Gould :: SSRN. SSRN, 2009. Web. Oct. 2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1531903>.

“Death Penalty Information Center.” DPIC | Death Penalty Information Center. N.p., n.d. Web. Oct. 2016. <http://www.deathpenaltyinfo.org/>.

Jocelyn Johnson

Pre-Trial: From The Defendants POV

As explained in Criminal Courts: A Contemporary Perspective (Hemmens, 2013), first a defendant is arrested, the prosecutor decides whether or not to press charges and if so, they quickly have their initial appearance in front of a judge where they are released or detained. If released there may be bond requirements of monetary security deposits or other forms of monitoring beyond the standard pretrial conditions.

Once arrested a defendant is brought to the jail, from here the prosecutor has virtually complete discretion to decide to charge the defendant with anything or release them. 43% of cases are dismissed by the prosecutor off the bat, regardless of their personal philosophy guiding their process, they are determined to be cases that wont likely be won even if guilt is believed (Hemmens, 2013).

Once the prosecutor decides to press charges the defendant is sent before a judge for their initial appearance, this most often happens in a matter of hours but could take up to a couple days. In the initial appearance the defendant has the charges against them listed and explained, along with consequences of being found guilty, by the judge. If the defendant pleads guilty they are either sentenced or held over for sentencing. Felony charges can not be accepted in most cases during the initial appearance.

If the defendant enters a not guilty plea the judge decides rather the defendant can be released on their own recognizance or on bond requirements. Bound requirements can be monetary retainers and or more involved tracking methods (electronic tracking devices: ankle monitors. Etc…) or other less often used options. Most bonds only require the monetary retainer, that can be made through a bondsman for 10% of it’s total, this money is lost if bond conditions are broken or if the defendant absconds. Repeat offenders, those with escalated or aggravated charges and many with DUI’s are sometimes given a monitory bond that is believed to be higher than they could pay, this on occasion proves to be wrong. Some are put on substance use monitoring and or monitoring equipment.

When given an electronic monitoring requirement the equipment must be hooked up before the defendant may be released from the jail. This presents an issue with the jail, as they are only permitted to retain a defendant for a finite amount of time after they have made bond, before it becomes false imprisonment in the eyes of the courts (regardless the bond requirement). Probation offices (often privet rather than state operated) contract out to the jail/courts/pretrial services to provide the electronic monitoring for defendants with those requirements on their bonds and sentences.

A few defendants will bond out with In-Home Detention as a pretrial requirement, usually when associated with a charge that has a victim the court wants to have extra insurance they will not be contacted by the defendant (domestic violence and stalking usually). DUI defendants age given electronic requirements most often, in Boulder County (Colorado), when bonding out on repeat offenses. They most often are required to go on “Electronic Alcohol Monitoring”, which due to the wording of an order by the judges must also require GPS capabilities. The frustration with is, is that the judge may be under the false impression that the defendant will be wearing some form of ankle monitor, when in fact this defaults the defendant onto a portable breathalyzer. Yes the breathalyzer will GPS the defendant and take a photo during testing to ensure sobriety requirements are being adhered to, however, the defendant could also chuck this device in a bush the second they walk out of the booking doors at the jail and take off. This device is occasionally assigned to sex offenders due to the misgivings the GPS implies, and it’s the discretion of the privet probation office to hook up or refuse to, however they have to have a cause such as not being able to insure the victim does not live where the accused will be residing. If there is no cause to refuse the hook-up, it legally must be done.

regardless of how they got there, once on pretrial a defendant starts going through court required programs and systems that result in the defendant effectively preforming the core requirements of probation (prior to conviction). Defendants must set up with a pretrial case manager that they must meet with once a week (regular probation requires monthly meetings), they are set up on monitored drug testing most often, and some are required to attend therapy evaluations and/or classes. On the surface, one might think only those who have cases related to drugs or alcohol will be taking drug tests, you would be wrong. In Colorado and Boulder county especially, almost everyone pees in a cup, at least a few times (in front of a stranger monitoring to insure no cheating). Juries don’t know this is standard, and if it comes up in court it could hold less favor as proof of sobriety and possibly cause damage by implying guilt for having been done at all. This is a common concern among pretrial defendants.

If given an electronics requirement, the cost will range from $8-11 a day for the defendant. Inability to pay for the equipment’s use can result in bond revocation due to monitory failure to comply with terms and conditions of the company providing the equipment. When placed on drug tests, defendants will often start at 6-8 tests a month whose price can range from $10-20+ each. Pretrial supervision costs $50 a month, and any evaluation or class will range from $50-200 each. Many defendants know they can not afford this or have no intention of being able/willing to comply with the bond requirements and would rather do straight time, if guilty it counts for time served. However, in Boulder county, the jail is well over max capacity and it’s a battle to be retained and not placed on bond (also probation once convicted).

Should the defendant have not lost their employment during their arrest and release phase, they will now have to juggle weekly meetings, random drug testing, and other time consuming requirements around it. If they have lost their (or never had) employment, they will be expected to find new employments as soon as possible while also complying with pretrial terms and conditions. If a defendant is on charges of DUI, there is a good chance they have lost their license and are now limited to walking, biking or busing everywhere, resulting in things taking three times as long to accomplish. One of the most commonly held complaints is: being expected to accomplish more on a daily bases than those assigning it, in less time than they would be allotted, and not feeling any amount of understanding for how difficult that would be for any person, simply because they have charges (not convictions) related to it. This is where the impression that the system is set up to ‘help one fail’ starts to develop in defendants.

Defendants on pretrial often see it as a forced extension to their sentence that costs them much of their time and money and only reimburses them with the ability to attend to their daily life (jobs and other responsibility’s) and allows them to be around friends and family rather than incarcerated. Most defendants would rather do the pretrial sentence in jail, as the time spent awaiting trial would count towards their sentenced time (which is most often accredited ‘good time’ – day for day). there is nothing about pretrial bond requirements that applies towards ones sentence. The evaluations must be redone, the classes started over, the drug tests done only get used if to prove the defendant relapsed between pretrial and sentencing. Only now can the defendant start community service (referral from the probation office required) and if convicted of a DUI, get an interlock installed in their car (DMV requirement to have holds removed from licenses but allow driving in the mean time) and much of the pretrial conditions will continue (from square one). Defendants will still be testing 6-8 times a month at $10-20 each, regardless of charge. Classes may not have been required for pretrial, but they will be on probation, and there are countless ways to trip up and get revoked and reinstated (your probation time duration starts over).

When released on pretrial defendants may still be innocent until proven guilty, but they are required to preform the requirements of those convicted to retain their pretrial freedoms granted by the courts, these freedoms may be used to build a defense, maintain their life, or to deal with their impending conviction. Those not granted release must spend their time sitting in jail with little to no power over the events effecting their life. From arrest to initial appearance to arraignments, discovery and pretrial motions the defendant may only see the court room a dozen times over the course of

around 6 months, but rather innocent or guilty they will be sanctioned.

Many in the pretrial/probation departments see all clients as guilty, not because they are jaded necessarily but because more often than not it’s true. However, there are exceptions as well as cases of people who ‘had a few drinks too many, honestly thought they were fine’, weren’t by the smallest amount and the fact that they weren’t is enough in itself to have gotten the point across (regardless impending punishment), or were in the wrong place at the wrong times and got caught up in something they otherwise wouldn’t have. ~ There are many people who have clean records with the same story, just minus the arrest (including many working in the system).

While I can see the retribution, rehabilitative and restitution factors in the pretrial requirements being a mirror of probation sentencing, I also see it as biased and prejudicial towards those that are in fact innocent. On top of defending themselves, they are sent through a gauntlet of requirements that their non-convicted freedom and lives depend on. I feel there should be no class requirements with pretrial, evaluations should remain as they would be needed for mental heath and other like assessments. If someone needs to be on monitored sobriety there are cost effective alternatives that would not disrupt a defendants life as much as the standard methods do. Rather than calling a hot-line every day to see if you need to test that day (at $60-80 a month) a defendant could either be set at a lower amount per month or placed on a more affordable testing method. If a defendant is found innocent or their case dropped, any supervision infraction (with pretrial not new charges) encored during pretrial should be dismissed as well. A person should not have to continue to serve a punishment related to a crime they are not charged with. If anything, should dismissal not be an option, turn it into a monetary fine, rather than a way to trap someone in the system on technicalities.

Pretrial sounds cut and dry in text book descriptions, just a matter of court dates and time, but from the defendants point of view it is incredibly, if not overwhelmingly, involved. The costs of being

released quickly soar above and beyond that of a bond payment on average. The stress involved can hinder recovery in addicts if not cause relapse, and the costs can ruin lives in ways beyond the conviction alone. In counties where overcrowding and other factors result in most people being released on pretrial but having to wait up to 6 months for their trial/sentencing while preforming endless monitoring tasks, It can be hard not to at least accept how defendants could see the system as stacked against them. Not to says it’s justified as many of the referred points of view are warped to some degree towards the system, but the sheer magnitude of pretrial requirements and weight they carry over a defendants life are something that shouldn’t be easily dismissed.

References

Hemmens, Craig, David C. Brody, and Cassia Spohn. Criminal Courts: A Contemporary Perspective. Los Angeles: Sage, 2013. Print.

Jocelyn Johnson

Crime Control and Community Models of Corrections

Our corrections system has been conducted through several reformative and punitive models. From colonial, penitentiary, reformatory, progressive, medical, community, and crime control (due process model), we have grown and adjusted as society changes. No one model is truly unique, each model is rooted in its predecessors aspects, we use a jumble of them in the varying aspects of the system. While crime control is currently the official front-runner, community models are heavily represented too, despite heavy financial ties to their use.

Crime control models focus on ‘assembly line justice’, structured sentencing and more productive processing through the courts and punishment systems. Crimes/offenses are sorted into categories (nets), each one comes with a base sentence that has room for ‘personalization’, and most sentencing is uniform and formula based. What the offense is, how the sentence is served, previous convictions, all factor into what sentence adjustments are made and how long the sentence is for the offender. The room for personalization and adjustments is where community models still have a strong hold in society.

Community models focus on keeping the offender connected to the community, not severing their ties unless necessary. This means serving probation sentences with rehabilitation, reform, and community service requirements. There are assessments, therapies, punitive punishments, all meant to connect the offender with those they harmed in their offense, the community damage encored, and hopes to ‘drive home’ reform. Their retained popularity may have less to do with shown results and

more to do with the over crowded, under staffed courts and detention facilities, along with the boom in the privet sector of reform.

While many studies show that crime rates are lowering, the facilities in existence are over capacity across the board, some worse off than others. The lowering rates justify the political choices to not build more facilities, while the realities of the current population forces the system to get creative. Offenders are sentenced in assembly line fashion (crime control) to sentences that are often partially if not fully community based. If the offender is not completely released from a holding facility (work release or day reporting) they can work towards it (while earning good time – time off their sentence). The system is currently set up to process offenders from arrest to sentence completion as efficiently (cost effective) as possible. That community corrections model provides a manner to do this in (probation, parole, half-way housing, etc…) also aids with the over crowding issues, outweighing the lack of significant noted effect on crime rates and recidivism.

This combination is politically popular in it’s cost-effectiveness. Offenders in a low enough tear to go into privet facilities are responsible for their own funding ($10,000 – 15,000 for a 2-year probation sentence on average). Those who come in at a state level can have some costs covered by the state, but are mandated to choosing facilities from a given list (unless the courts approve an outside facility, in which case the financing reverts to the defendant’s responsibility), these facilities are for the therapies, classes, community services, drug testing, and other requirements of their sentences. The mandated facilities are often in contracts with the courts to keep the costs lower. On the surface this appears to be a benefit to the offender, but on the state level it’s more beneficial to them, when it comes to paying for services to ensure their clients complete (or have a fair shot at completing) their court requirements. All of this, while expensive, is still cheaper than spending public tax money on more facilities to detain offenders (which is more in line with crime control models).

Community models strong connections to rehabilitation and treatments are popular with society, as they show compassion and allow for restitution in several forms. However, the changes in crime rates are not linked to community models over other models. While each model has its strengths, no one focus is ‘the answer’. Crime control models are primarily about efficiency, and while the initial punishment is presented as incarceration, community options are not disavowed. It is more efficient to use community corrections than incarcerate most offenses, so community corrections are utilized.

I feel like the current models are a result of frustration with past models not being ‘the answer’, and changing environments as well as public awareness. Society is overwhelmed at the moment and less concerned with the details of corrections for it. So long as the bad guys are being caught, processed, and they are not watching their tax money be spent on boring day reporting and work release facilities while the news reports crime rates are overall lower, they are happy. Never-mind that the current set up is more aligned with keeping a steady flow of clients through the privet sector, via sanctions and infractions that rank from justified to petty (completely counter to reform and creates recidivism).

Community corrections is the best model we’ve used thus far, regarding addressing the root cause to crime and correcting it, it just needs adjustments and proper funding to get a proper run. Crime

control goals are counterproductive to community goals, to properly asses and treat offenders would slow the system down and stall the ‘assembly line’ process. However, it would produce more effective (lasting) reform, and lower the criminal population over time.

References

“The Potential of Community Corrections to Improve Communities and Reduce Incarceration.” Federal Sentencing Reporter 26.2 (2013): 128-44. Web.

Welch, Michael. Corrections: A Critical Approach. 3 ed. New York: McGraw Hill, 2011. Print.

White, Michael D. “The New York City Police Department, Its Crime Control Strategies and Organizational Changes, 1970-2009.” Justice Quarterly 31.1 (2014): 74-95. Web. <http://www.tandfonline.com/doi/abs/10.1080/07418825.2012.723032>.

— Jocelyn Johnson

Mandatory Sentencing

What is mandatory sentencing? “Mandatory minimum sentencing laws require binding prison terms of a particular length for people convicted of certain federal and state crimes. ” (FAMM – » What Are Mandatory Minimums?, 2016.) If certain aspects of a crime qualify for the mandatory sentences in place, the defendant must be processed under them, regardless of other factors. While much of the public focus is on ‘prison’ sentencing, mandatory sentencing also applies to other sentences, such as jail, parole and probation.

Is mandatory sentencing the major crime deterrent the justice system was looking for? Did it help streamline the courts case flow like it was meant to? I plan to compare and contrast the intentions with the realities for mandatory sentencing, to show that it does not work and is counterproductive in the Criminal Justice System reform goals. Mandatory sentencing is flooding the system with low end offenders, who’s lives are negatively impacted for prolonged periods of time. Courts are forced to order years of prison/jail or parole/probation (which includes thousands of dollars worth of treatments and sanctions that may or may not apply to the crime(s) or offenders and/or their situations.)

Mandatory sentencing was initially imposed by congress during the 80s. “In

1984, Congress enacted the most sweeping and dramatic reform of federal sentencing — the

Sentencing Reform Act.” (Special Report to the Congress | United States Sentencing Commission. 1991). It was meant to permanently reduce crime rates, but it’s focus became ‘the war on drugs’. It was

aimed at the king pins and meant to deter those lower down in the network. Along with ‘three strikes’ laws: “Under these laws, you will face a specific minimum sentence if you are convicted of a third felony.” (What Are Mandatory Minimum Sentencing Laws. 2016), it was meant to be a helpful tool in the war on drugs. There are mandatory sentencing laws involving drugs, firearms, varying sex offenses (mainly trafficking), gang violence and a few miscellaneous crimes, but its main focus is drugs and firearms cases (Special Report. 1991).

When the sentences were constructed, no matter the position on the ladder or level of involvement, the sentence was the same for the given parameters. This was intended to stop the leaders from getting lighter sentences due to loopholes and technicalities. As long as a connection was established, the mandatory sentence applied. However, this is not how it worked out, the much larger number of workers v leaders simply resulted in the system being flooded with low end offenders serving long term sentences. The leaders (when caught) still tend to get lighter sentences than the workers, overall. (Drugs & Crime Facts. 2016).

The statistics collected by the Bureau of Justice reflect about a third of mandatory sentenced, low end, drug offenders are serving sentences for crimes committed (in part) to support their own substance abuse habits. The same statistics also reflect that about a third of those in the correctional system with drug charges, also have mental illness issues as well. In a reformative system, one would think that treatment for the substance abuse and mental illness issues would be addressed, as well as a correction aspect that would be more pro-social to support a successful reform. However, under mandatory sentencing, the courts can’t take personal factors into proper account when adjusting the sentences. Fun side fact: Remaining steady since 1980, about 40% of the drug trafficking/selling (felony level) arrests, were for marijuana. (Drugs & Crime Facts. 2016).

The courts are often forced to send these offenders away for years, to prisons and jails or place them in a probation system that can exasperate said issues, and create ‘revolving door clients’. The

probation and parole systems have treatment requirements meant to ensure that clients receive

evaluations and help. However, the execution is often group meetings that may or may not stay on topic, and can not be properly personalized to produce effects expected to last (without continued treatment – which is rare when original treatment is ‘ordered’.) Some offenders are taking therapies that have no relation to their crime, beyond satisfying a requirement of the courts. The courts have no choice but to order it, the defendant has no choice but to pay thousands of dollars for it and complete it, in order to term the case with the court and move on with one’s life.

The effects of mandatory sentencing are destroying the lives of otherwise productive members of society who have committed comparatively minor offenses. It also makes for a standard list of requirements attached to any ‘reform’ sentencing by the courts that may or may not relate to the offense. When the sentencing is not in line with the crimes, it weakens the reform aspects of punishment. When unrelated classes and therapies are mandated, long incarceration periods are required, the reform aspect is damaged and distorted when the punishment outweighs or doesn’t relate to the crime.

Mandatory sentencing runs on a chart/points system, like a math formula. The judge/magistrate starts with the type of crime and rather the offender is a first time or returning offender and matches it to the mandatory sentencing qualifiers (such as substances possessed and weights there of). Once this number is obtained it is adjusted based on other crime factors adding or removing points: was a weapon involved, was anyone hurt or killed, were minors involved, if one or several actors were involved – was the defendant a leader or a follower, and so on. There is room to lower the number, but much more to raise it. This final number then sets the parameters for minimums and maximums, if convicted, the court’s hands are tied into them. (FAMM. 2016.)

Because of this, most of the discretion has shifted from the judges bench to the DA’s office in plea deals. Many corrections clients take a plea deal for a lesser offense to avoid mandatory sentencing with jail/prison time, the system is full of stories where the defendant ‘could’ have won at trial, but wasn’t willing to risk it or couldn’t afford to keep fighting it. To top it off, the ‘lesser charge’ plead to will come with a sentence that will have its own mandatory requirements, tailored to the charge itself, and therefore likely to not line up with the offenders actual needs.

When pleading down, resulting charges may have no relation to the actual crime in question. However, the crime charged dictates the mandatory requirements of the sentenced handed down, what types and/or amounts of therapies, classes, level of supervision, and so on. When the final charge is off-base with the original crime and the sentence requirements match the charge, people are stuck between a rock and a hard place. They are required to spend large amounts of time and money on things that will not only fail to ‘address/reform’ the situation, but will frustrate both the defendant and those servicing the court orders.

It is far less disruptive to one’s life to spend two years on probation than two years in prison or jail. However, that two years on probation will still disrupt ones life. It can result in loss of employment, family, friends, and so on, while costing $10-15 thousand (or more) to complete.

In 1980 there was a total adult correctional population of about two million people. In 2014, about seven million people accounted for the adult correctional population. (Drugs & Crime Facts. 2016). There has been an increase in population from prison and jail to parole and probation, across the board it accounts for an increase of over 300%. The prison and jail populations between 1910 and 1980 only went from about 100 thousand to about 400 thousand (Drugs & Crime Facts. 2016). The massive spike in numbers after 1980, lines up with the implementation of mandatory sentencing methods. It has only recently begun to decline (slightly) since the turn of the century, coinciding with the same time frame individual states started adjusting their mandatory sentencing laws to be more lenient. (FAMM. 2016.) This flood of offenders has not cleared up the courts, it merely formed the foundation of ‘assembly-line justice’.

Mandatory sentencing was meant to ‘reduce’ crime rates, but according to The Bureau of Justice statistics, the number of drug arrests has increased right along with sentencing rates. Though, the crime

rates are down from 13 million to 9 million, between 1980 and 2014 (United States Crime Rates 1960

– 2014.), they do not include drug crimes (usually recorded separately and the largest focus for

mandatory sentencing) which are rising (in opposition to the reduction goal). Drug related arrests were twice in 2009 what they were in 1980, accounting for 100/100,000 arrests from 50/100,000 (Drugs & Crime Facts. 2016). When over a third of those serving long term mandatory sentences for repeat felonies connected to drug possession/trafficking have a drug and/or mental illness issue, and that the numbers are rising, it seems clear the current methods are not working. Punishing addiction or mental illness does nothing to resolve the issue.

Neither detention centers such as jails and prisons, nor enforcement agencies such as probation and parole are equipped for (nor should they be burdened with) the needs of serious addiction and mental illness issues. These are cases that never should have reached the justice system in the first place, but since they have, should still be redirected to treatment facilities equipped for such needs.

The first issues with providing proper addiction, mental health, and other treatments to offenders that come up, is the money and where it’s coming from. Treatment can cost a lot, to be effective. Addicts and the mentally ill don’t often have a stock pile of money to pay for such treatments, so the bill falls on the state. However, the state is already footing a bill of about $30,000 a year per prison inmate (1/3 of which committed their crimes due to addiction issues). Should said inmate have a mandatory sentence of 10 years, that’s $300,000 on the state (tax payers) to pay. 30 to 90 day rehabilitation treatments run $10,000-60,000+/- per person. Given a reported 40-60% of those who go through treatment relapse, we can still estimate half of those treated will likely succeed.

We have established that 100/100,000 arrests are drug related (Drugs & Crime Facts. 2016), and there are about 9 million arrests a year (United States Crime Rates 1960 – 2014. 2016.), this equates to 9,000 drug related arrests per year. 3,000 of these drug arrests are tied to addiction issues, and 1,500 of them could likely succeed in rehabilitation treatment. This results in a price difference of $450 million

to incarcerate those 3,000 people for 5 years, or $30-180 million to treat all the offenders instead. Even when calculating for shorter sentences, those 3,000 inmates cost $90 million a year to house. A two-year sentence for each, is all it takes to max out the cost of the most expensive 90 day treatment, for each offender. Treatment of addiction is not only more compassionate, it’s actually shown to be effective, and just so happens to be cheaper than incarceration.

The above only addresses those with addiction problems. A third of those serving mandatory sentences on drug charges also report mental illness problems, many beyond the justice systems ability to treat while ‘reforming’ other inmates. Not knowing how many mental illness inmates overlap with those suffering addiction issues, it can simply be presumed that 3,000 arrests per year require some level of mental health treatment. Unlike addiction treatment, mental health treatment is more likely to be life-long. Mental health treatment can range from $500+/- a year in insured, co-pay, maintenance costs, all the way up to $50,000-100,000 a year depending on the conditions of the illness being treated. The most common issues (exasperated by drug use) run from $500 – $2,000 a year out-of-pocket with Medicaid coverage (Burden of Mental Illness. 2016). 50 years of treatment at $2,000 a year is $100,000. 50 years of incarceration comes in around $1.5 million. Even if the state paid the difference for the out of pocket costs, it’s still significantly cheaper (and more effective) to properly treat people’s ‘problem’ than it is to punish them for the actions they resulted in.

Granted, there are some with addiction and mental health issues that need to be incarcerated, as well as treated. There are those who commit crimes with full knowledge and understanding of their acts, in accord with societal standards, and go through with them anyhow. I am in no way advocating a mass release of inmates, to treatment facilities instead of incarceration. I am just pointing out how much more cost effective and productive treatment is over punishment, for those it applies to.

Mandatory sentencing results in more problems than it solves. While intended to stop the

kingpins and deter the minions, mandatory sentencing has resulted in low level offenders flooding the

prison systems for long periods of incarceration, and not so many kingpins. “Low-level offenders often get longer sentences than high-level dealers.” (Minimums, 2016.) Mandatory sentencing does have deterrent effects, it’s results over the past 4 decades however, do not advocate the effects providing a strong argument for keeping them in place when compared to the cons. Courts are forced to satisfy a set of legal requirements set by congress, before considering individual factors in a crime. Some set requirements eliminate the courts abilities to consider certain individual factors, removing judicial oversight and the checks and balances system. It also prevents the courts from handing down harsher sentences to some, or allows them to act on bias and hand down a harsher sentence than is standard, defending it as being within the mandatory parameters.

Punishments are laced with court (sentencing) requirements that have little to nothing to do with the crime committed, or are inappropriate for the defendant/situation. However, they are required, the judges/magistrates must hand them out and clients must fulfill them to successfully term out their case with the courts. The systems ‘efficiency process’ is destroying the reform aspect of the system, and making it come off as a corporation for profit over a social structure focused on reform or social benefit.

While the ideals behind three strikes laws came with good intentions, the mandatory aspect

restrains the courts too much and needs to be reworked to allow for judicial oversight. Judges need to be able to see a defendant has an addiction problem, mental illness issue, caught up in something they don’t have any true connection with, and adjust sentencing accordingly. They need the freedom to filter the defendants that should be ordered specific treatments, to be evaluated for and assigned to take them. They need the opportunity to let the defendant who was in the process of turning their life around complete the task, rather than derail it due to environmental factors that resulted in criminal charges. They also need the freedom to exceed the maximums when the crimes truly deserve it. For those who

are too harshly sentenced, there are also those who get off too lightly. Mandatory sentencing results in

someone transporting a distributive amount of drugs (which can be a large or small amount, depending on the substance) receiving the same length prison sentence as another person convicted for over a decades worth of pedophilia related charges (including sexual contact).

While mandatory sentencing has good intentions, the justice system can not work properly when restrained, it needs to be fluid to adapt with us.

References

“Burden of Mental Illness.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 04 Oct. 2013. Web. 20 Feb. 2016.

“Drugs & Crime Facts.” Bureau of Justice Statistics Drugs and Crime Facts: Contents. N.p., n.d. Web. 30 Mar. 2016.

“FAMM – » What Are Mandatory Minimums?” FAMM. N.p., n.d. Web. 20 Feb. 2016.

Minimums, Families Against Mandatory. Mandatory Sentencing Was Once America’s Law-and-order Panacea. Here’s Why It’s Not Working. (n.d.): n. pag. Families Against Mandatory Minimums. FAMM. Web. 20 Feb. 2016.

“Special Report to the Congress | United States Sentencing Commission.” Special Report to the Congress | United States Sentencing Commission. N.p., n.d. Web. Aug. 1991.

“United States Crime Rates 1960 – 2014.” United States Crime Rates 1960 – 2014. N.p., n.d. Web. 20 Feb. 2016.

Welch, Michael. Corrections: A Critical Approach. 3rd ed. New York: McGraw Hill, 2011. Print.

“What Are Mandatory Minimum Sentencing Laws.” – Attorneys.com. N.p., n.d. Web. 20 Feb. 2016.

— Jocelyn Johnson