Oct-Nov 2015 Vol. 7, Issue 5 Published by Sentencing and Justice Reform Advocacy, a Non-Profit 501c(3) organization, all donations tax-deductible, EIN 90-0617754 P.O. Box 71, Olivehurst, CA 95961 530-329-8566 [email protected] www.SJRA1.com Printing provided by Carole Urie, Returning Home Foundation, Laguna Beach, CA 92651 By Andrea Roth FULPHVODEHOHG³GDQJHURXV´RU³YLROHQW´XQGHU can be guilty of the first-degree murders of Assistant Professor most criminal codes. A heroin-addicted war higher-up drug dealers in their operation, so UC Berkeley School of Law veteran who enters a house garage to steal long as those murders were foreseeable and in some tools to feed his drug habit has commit- furtherance of the operation, under broad theo- President Obama took a laudable step in ted a first-GHJUHH EXUJODU\ D ³YLROHQW´ FULPH ULHV RI ³FR-FRQVSLUDWRU´ OLDELOLW\ 8QGHU WKH July by granting clemency to 46 people con- under many state codes. A drug-motivated felony murder rule, a person committing a victed of non-violent drug offenses and using unarmed robbery in which the offender pushes robbery, even if unarmed, is guilty of first- his bully pulpit to decry mass incarceration in the victim, takes cash from his wallet, and GHJUHH PXUGHU LQ PDQ\ VWDWHV LI VRPHRQH¶V WKH 8QLWHG 6WDWHV 7KH 3UHVLGHQW¶V KLVWRULF UXQVDZD\LVDOVRD³YLROHQW´FULPHXQGHUPRVW death can be causally linked to the felony, move comes on the heels of important scholar- state laws. Any person with a felony who even even if the death was purely accidental. And ship ± VXFK DV 0LFKHOOH $OH[DQGHU¶V FHOH SRVVHVVHVDILUHDUPLVJXLOW\RID³GDQJHURXV´ with a prior conviction for any felony, how- brated book The New Jim Crow describing the federal offense, and a person who has a fire- ever low-level, many violent offenses absent role of the War on Drugs in contributing to arm in his house while engaging in a drug physical injury to the victim, such as unarmed our bloated and racially disparate imprison- deal, intending to exercise control over the robbery, carry significant mandatory time in ment rates. The growing recognition across ILUHDUPKDVFRPPLWWHGD³FULPHRIYLROHQFH´ prison and maximum sentences up to forty or the political spectrum that American criminal under the federal sentencing guidelines. In more years. courts punish non-violent drug offenses in a VKRUW³YLROHQWFULPH´LVDOHJDOO\ FRQVWUXFWHG These are serious acts that deserve seri- racially disproportionate and counterproduc- term that includes within its broad reach a ous punishment; serious proportion- tive way in is a good thing, and a sign of good great deal of drug-related conduct that fails to ate punishment. If we did not believe in pro- things to come, for criminal justice reform. PHHW WKH SURILOH RI D ³YLROHQW FULPH´ DV portionality of punishment, we could simply %XW ZKLOH 2EDPD¶V IRFXV RQ FULPLQDO MXVWLFH Americans colloquially use that term. give a mandatory life sentence to anyone who reform is welcome and arguably unprece- Finally, painting non-violent drug offend- has done something violent. Most Americans dented, rhetoric suggesting that we can curtail ers as a special group deserving of leniency agree that result would be irrational, immoral, mass incarceration through leniency only to- obscures the fact that even offenders who are and counterproductive. And while our sen- ZDUG ³QRQ-YLROHQW GUXJ RIIHQGHUV´ LV IODZHG guilty of indisputably violent acts should not tencing regimes are not yet that draconian, the and counter-productive. be overcharged or sentenced to disproportion- one-way ratcheting of sentences for violent First, it obscures the fact that violent ately high prison terms. Routine overcharging offenses is moving in that general direction, crime, and not drug crime, is the primary en- and the strong-arming of guilty pleas through with no politically powerful group yet willing gine of mass incarceration in this country. use of mandatory-minimum sentences and to stop the train. We should not excuse the Economist and criminal justice scholar John repeat-offender enhancements are fixtures not irrational and counterproductive over- Pfaff of Fordham Law School, using numbers merely of drug prosecutions, but of all prose- punishment of violent offenders simply be- from the National Prisoner Statistics database, cutions in the modern tough-on-crime era cause they have done something violent. has shown that between 1980 and 2009, the where politicians can score easy political While we celebrate the bipartisan move- increase in drug prosecutions accounted for points ± without meaningfully combating ment to reform drug sentences, we should not only 21% of growth in state prison popula- crime ± by proposing gratuitous increases in DOORZ RXU UKHWRULF DERXW ³QRQ-violent drug tions, while the increase in incarcerated vio- punishment for violent offenses. In Washing- RIIHQGHUV´ WR GLVWUDFW XV IURP WKH VLPXOWDQH lent offenders during that period accounted for ton, D.C., an eighteen year old with a pocket ous imperative to reform our approach to vio- over half of overall prison population growth. knife who tells a victim to get out of his car, lent offenses. Addressing the over-punishment Meanwhile, huge racial disparities also exist and then takes the car for a quick ride, faces a and racially disparate treatment of violent in violent crime prosecution rates. If we want PDQGDWRU\ ILIWHHQ \HDUV LQ SULVRQ IRU ³DUPHG offenders is a necessary step toward reining in to significantly reduce the number of people in FDUMDFNLQJ´ ,Q &DOLIRUQLD HYHQ DIWHU UHFHQW this country's bloated prison system. The American prisons, while also decreasing the reforms to its three-strikes law, an offender sooner lawmakers and reformers come to racial disparities in our prison population, we who takes a car from a driver by verbal terms with that uncomfortable truth, the cannot focus solely, or even primarily, on non- ³WKUHDW´ HYHQ LI XQDUPHG ZRXOG UHFHLYH D sooner America can move beyond the scourge violent drug offenses. mandatory life sentence if he had two prior of mass incarceration. Second, rhetoric treating non-violent convictions for serious felonies, which could drug offenders as qualitatively different from include, for example, dealing drugs to minors Andrea Roth is an Assistant Professor at UC other offenders belies the non-violent drug- (essentially, dealing drugs) or burglary of a Berkeley School of Law who teaches and related motives and conduct underlying many garage. In most states, low-level drug mules researches criminal law. Page 2 SJRA Advocate . PO Box 71 . Olivehurst, CA 95961 . www.SJRA1.com Oct-Nov 2015 at New York University School of Law Senate Bill No. 261 CHAPTER 471 California Budget $KHDGRIODVWZHHN¶V'HPRFUDWLFSUHVLGHQWLDO & Policy Center debate in Des Moines, Lauren-Brooke An act to amend Sections 3051 and 4801 of and wrote for The Independent Analysis. Shared Prosperity. Eisen Inimai Chettiar the Penal Code, relating to parole. Huffington Post that candidates should get EHKLQGD³5HYHUVH0DVV,QFDUFHUDWLRQ$FW´WR Budget · Criminal Justice · [Approved by Governor October 3, 2015. leverage the billions of dollars now spent to Filed with Secretary of State November 2015 · By Scott Graves subsidize mass incarceration to instead boost October 3, 2015.] state efforts to reduce prison populations In recent years, California has made signifi- while maintaining public safety. Vox called /(*,6/$7,9(&2816(/¶6',*(67 cant progress in reducing the number of people WKH SURSRVDO ³HVVHQWLDOO\ WKH UHYHUVH RI >WKH involved with the state correctional system. 1994 crime bill]: The proposal provides finan- SB 261, Hancock. Youth offender parole These declines resulted from criminal justice cial incentives for states to incarcerate fewer hearings. reforms adopted by state policymakers and the SHRSOHZLWKRXWLQFUHDVLQJOHYHOVRIFULPH´,Q Existing law generally requires the Board voters following a 2009 federal court order Congress, a bipartisan criminal justice reform of Parole Hearings to conduct youth offender requiring California to reduce overcrowding in bill continues to advance. Danyelle Solo- parole hearings to consider the release of of- state prisons. mon told The Hill WKDW5HS3DXO5\DQ¶VDV fenders who committed specified crimes when cension to Speaker of the House could be a they were under 18 years of age and who were This Issue Brief examines changes in correc- ERRQWRWKHOHJLVODWLRQ³:LWKKLVWLPHRQWKH sentenced to state prison. tions spending from the 2007-08 fiscal year ² Budget and Ways and Means committees, he This bill would instead require the Board when the numbers of incarcerated adults and is well aware of the cost burden the system of Parole Hearings to conduct a youth of- parolees peaked ² to 2015-16, which began has on the federal budget. Speaker Ryan has fender parole hearing for offenders sentenced this past July. While total corrections spending made positive comments about the need to to state prison who committed those specified as a share of the state budget is down slightly DGGUHVVWKHFULPLQDOMXVWLFHV\VWHPDQGZH¶UH crimes when they were under 23 years of age. since 2007-08, spending for adults under state H[FLWHG WR VHH PRYHPHQW´ :DWFK (LVHQ GLV The bill would require the board to complete, jurisdiction ² which comprises more than 80 cuss reform proposals on NJTV News. by July 1, 2017, all youth offender parole percent of total corrections expenditures and hearings for individuals who were sentenced includes security and operations as well as to indeterminate life terms who become enti- health care ² remains stubbornly high. tled to have their parole suitability considered at a youth offender parole hearing on the ef- Significantly ² and permanently ² reducing fective date of the bill. The bill would require corrections spending will require the state to the board to complete all youth offender pa- A new Brennan Center report analyzed 2015 take additional steps. These could include role hearings for individuals who were sen- FULPHGDWDIURPWKHQDWLRQ¶VODUJHVWFLWLHV IXUWKHUUHIRUPLQJ&DOLIRUQLD¶VVHQWHQFLQJODZV tenced to determinate terms who become enti- and found that reports of a nationwide crime particularly with an eye toward cutting the tled to have their parole suitability considered wave are unsupported.