Tagged: prison population

Prof. Mushlin on the Proposal to Close Rikers Island

In a recent article in the Daily News, The Prisoners We Should Put on Rikers, Pace Law Professor and nationally recognized expert on prisoners’ rights Michael B. Mushlin writes that although Mayor de Blasio’s announcement endorsing the recommendation of an  independent commission to close the Rikers Island jail complex is a step in the right direction, the better solution might be to keep Rikers operational to house prisoners from the five boroughs who would otherwise be sent upstate.

Prof. Mushlin points out:

For example, 58% of incarcerated individuals from the city’s metropolitan region are in prisons more than 200 miles from their homes. And remarkably, 27% of the entire state prison population is more than 300 miles from the county of commitment.

The location of New York prisons so far away makes maintaining meaningful family ties almost impossible. These ties are strongly associated with successful reintegration, lower recidivism rates and improved behavior while incarcerated.

Judge Rakoff Addresses Mass Incarceration in the U.S.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.

Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.

Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.

In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.

The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.

Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”

In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons many of whom have learned in prison how better to commit future crimes.”

Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”

To rebut public belief to the contrary, the judge writes that

those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.

Reflections on a Criminal Justice Summer

It has been quite a summer. Having been involved in the criminal justice system for more than forty years, I feel as if there has never been a summer with so much going on – and so much attention being paid to it. Ferguson, Missouri, is the most recent and most alarming event, following so closely on the Staten Island chokehold case. These cases have focused serious attention on the police-citizen relationship that was front and center last year in the stop-and-frisk decision and the settlement of that lawsuit by the new New York City mayor.

We have been witness to the unprecedented actions of the Brooklyn, New York Conviction Integrity Unit in the District Attorney’s office, and to the dismissal of erroneous convictions in that county. These dismissals have been followed by substantial financial settlements by New York City. The New York Times ran a series of editorials urging the decriminalization of marijuana possession in some circumstances, and another editorial calling for revisions in the virtually-non-existent clemency process. Four state governors are either being tried, charged, or investigated.

Rampant prisoner abuse has been exposed just as claims made by prisoners has spiked, and there is now dialogue about the excessive use and destructive results of solitary confinement. The entire capital punishment process has come under scrutiny because the drug companies who provide the lethal drugs to accomplish our executions are no longer willing to do so. There is increasing focus on our entire system of punishment because of international attention on our disgracefully large prison population.

On an international level, we have also been witness to mass executions in Egypt and a long-awaited English investigation of the poisoning of a Russian journalist in London. Scotland abolished its long-standing and unique corroboration requirement. We were witness to an historic event:  a Black, South African, and female judge presiding at the trial of a young white male, who happened to be an internationally acclaimed athlete.

Having been raised on a September to September calendar, and having continued with that conception of the “year” as a law professor, I am pausing to wonder what we will witness in the next twelve months.

For now, the staff of the PCJI are taking a two-week break. We will resume our blog after Labor Day, on September 4.

U.S. Sentencing Commission Approves Amendment to Federal Sentencing Guidelines

The United States Sentencing Commission has recently approved an amendment to the Federal Sentencing Guidelines, “Drugs Minus Two,” which would reduce the sentencing guideline levels applicable to most federal drug trafficking offenses. Specifically, the amendment works to lower the base offense levels in the Drug Quantity Table prescribed under §2D1.1(c)(1) of the Federal Sentencing Guidelines Manual, which may ultimately result in a lower guideline sentencing range for many defendants sentenced under federal trafficking penalties.

The Sentencing Commission has voted to apply the amendment retroactively after determining that “setting the base offense levels above mandatory minimum penalties is no longer necessary and that a reduction would be an appropriate step toward alleviating the overcapacity of the federal prisons.” The Commission’s proposal was consistent with its obligation to formulate guidelines to “minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons. 28 U.S.C. § 994(g).

According to the Commission, there are an “estimated 46,000 offenders that may benefit from retroactive application of Amendment 782 subject to the limitation in §1B1.10 (e), and the average sentence reduction would be approximately 18 percent.”

The Chair of the Sentencing Commission, Judge Patti B. Saris, stated that “the amendment received unanimous support from Commissioners because it is a measured approach. It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

The amendment will likely go into retroactive effect beginning November 1, 2015, unless Congress disapproves of the amendment. Congress has until November 1, 2014 to make its decision. If upheld, federal prisoners may begin to petition the courts pursuant to 18 U.S.C. § 3582 (C) (2) seeking a sentencing modification based upon the new guideline ranges.


Does this Government Conduct “Shock the Conscience of the Ninth Circuit?”

The Ninth Circuit recently upheld a due process challenge to an ATF sting that targeted the poorest minority neighborhoods in Phoenix to court individuals – with a promise of riches – to break into and rob local fictitious, non-existent stash houses.  Many of these individuals had no criminal records; almost all were out of work and poor.

Pace Professor Bennett L. Gershman analyzes the ATF’s penchant for creating fictitious crimes (see e.g., Operation Fast and Furious) in a recent Huffington Post column.  Click here to read the entire post.