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Families Against Mandator y Minimums

spring 2011 Issue 2 | Volume 22

Inside

FAMMGram Se n ten ce s th at fit. Justic e that w orks.

features

3 FAMM milestone: Michigan a watershed moment for state sentencing reform These victories helped hundreds of deserving prisoners and jump-started reforms in the states. 6 The fight returns to the Commission The first round for retroactivity of the new crack law is in the U.S. Sentencing Commission’s ring. 7 Making sense of federal good time proposals Rumors about good time are swirling, but where’s the truth? FAMM explains what’s happening. 8 State response to mandatory minimum laws Sentencing and corrections reforms are flourishing in the states. Read our round up of 18 victories. 9 FAMM at the forefront of Florida reform efforts Attitudes on sentencing policy are changing in Florida.

departments 6 Federal news 9 State news 12 Litigation 13 Is justice being served? 15 Outreach

The Last Sacred Cow Bankrupt governments discover sentencing reform For decades, self-proclaimed “tough on crime” policymakers on both the left and right wanted longer sentences for more offenders and more prisons to hold them. By and large, they got what they wanted. Then came the recession. The steep economic downturn of the last few years has pushed many states to the brink of bankruptcy, and the federal government is also feeling the pinch.

As a result, federal and state lawmakers are looking for new approaches in every area of government spending – even criminal justice. Dozens of states are adopting corrections and sentencing reforms that are easier on state budgets and more effective than mandatory minimums and new prisons at protecting public safety and reducing crime.

Though the states have been the real leaders in enacting bold reform, new budget pressures in Congress suggest we may be able to build upon last year’s crack reform victory to achieve even more success at the federal level. It seems like the “last sacred cow” – corrections reform – is finally being toppled.

Conservatives speak up FAMM has long worked with lawmakers in both political parties to forge political consensus on reforms that give judges discretion to impose sentences that fit the crime. Just last year, for example, FAMM played a leading role in recruiting political conservatives to support the federal crack reform bill in Congress. After securing concontinued on page 4


president’smessage

Happy spring!

Not only are fruit trees blossoming and tulips flowering, conservatives who support sentencing reforms are sprouting everywhere! Our cover story reports on three prominent national conservatives who participated in a FAMM briefing we held on Capitol Hill in April. We invited these distinguished men to join me in discussing ways Congress could cut criminal justice funding – something no one is talking about but should be. Our speakers had some solid suggestions for cutting the criminal justice budget. And I was glad that the congressional staff members who attended the briefing were able to hear that even one-time supporters of mandatory sentences have changed their tune and now reject them. Asa Hutchinson, a life-long Republican who served as a federal prosecutor during the Reagan administration, a member of Congress from Arkansas, and then as head of the Drug Enforcement Administration (DEA) under President George W. Bush, told the capacity crowd at our briefing that he wanted to reform our criminal justice to make it more efficient. He said what was even more important, however, was to make the system fairer. His words warmed my heart. Fairness is a value that does not change with the economic times. Fairness is a value that transcends the partisan divide. It is a goal we can all pursue together. I know that people can view concepts like fairness differently, but it’s not hard to think about what a fairer criminal justice system would look like. A fairer criminal justice system would punish individuals based on the specific role they played in a crime, not according to the crime they played a role in. It would not treat people better or worse depending on the color of their skin, the country of their birth, or the beliefs they hold sacred. A fairer system would not use our nation’s harshest punishment – prison – for low-risk, nonviolent offenders. And a fairer system would give judges the discretion to consider all the factors that are relevant to imposing an appropriate sentence. I am an optimistic person by nature, but I don’t believe you have to be too optimistic to believe that such a system is within our reach. I think all Americans support a justice system that accomplishes these goals. The problem is that too many do not know how different the reality is today. Our job at FAMM is to educate them, and with your help, we will. My best,

FAMMGRAM

spring

families Against Mandatory Minimums

Since 1991 Mission: FAMM is the national voice for fair and proportionate sentencing laws. We shine a light on the human face of sentencing, advocate for state and federal sentencing reform, and mobilize thousands of individuals and families whose lives are adversely affected by unjust sentences. The FAMMGram is published three times a year.

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P.S. – We recently bid a fond farewell to two FAMM colleagues, Deborah Fleischaker, director of state legislative affairs, and Christie Wrightson, development director. We are grateful for their contributions to FAMM and sentencing justice, and wish them well. Issue 2

Julie Stewart President Mary Price Vice president and general counsel Jennifer Seltzer Stitt Federal legislative affairs director

Volume 22

Barbara J. Dougan Massachusetts project director Greg Newburn Florida project director Andrea Strong Member services director Molly Gill Special projects director and staff attorney

Monica Pratt Raffanel Communications director Ava Page Federal legislative affairs and media associate Roxana Rincones Finance and administration director Karen Garrison D.C. office assistant

FAMM National Office 1612 K Street, NW, Suite 700 Washington, DC 20006 phone (202) 822-6700 fax (202) 822-6704 famm@famm.org www.famm.org FAMM’s offices do not accept collect calls. FAMM cannot respond to requests for legal help.


FAMM

Milestones

A watershed moment for state sentencing justice Throughout 2011, FAMMGram will report on major victories won by FAMM during our 20 year history of fighting for sentencing reform. In this issue, we examine the reform of Michigan’s mandatory minimum drug sentencing laws.

In 1991, just as FAMM was getting started, the U.S. Supreme Court brought one of the worst mandatory minimum laws in the country to the attention of FAMM and the nation.

The case was Harmelin v. Michigan, and the mandatory minimum sentence it challenged was staggering: life without parole for delivery or conspiracy to deliver 650 grams or more of cocaine or heroin. Ronald Harmelin, a first-time offender, argued that Michigan’s so-called “650 Lifer” law was “cruel and unusual punishment” and violated the Constitution. Unfortunately, the Court disagreed and upheld the draconian sentence. Julie Stewart, FAMM’s president and founder, was moved to do something to address this injustice. FAMM began efforts to reform Michigan’s horrific 650 Lifer law in 1996. FAMM’s Laura Sager and Tom Burkert recruited dedicated volunteers and impassioned family members to support our sentencing reform bills. They worked with Democrats and Republicans on reform legislation everyone could support. Former Republican Governor William Milliken, who had signed the 650 Lifer law into existence in 1978, joined FAMM’s cause. After much hard work by FAMM and a coalition of allies, the FAMM package of reforms sailed through the state legislature with huge majorities and bipartisan support. The victory was significant. FAMM won parole eligibility for 650 Lifers who had been sentenced before 1998 and eliminated the mandatory life without parole sentence. For the first time in 20 years, judges had the flexibility to give fair, sensible punishments to people who would otherwise never leave prison under the old law.

Pushing reform forward FAMM targeted Michigan’s entire mandatory minimum drug sentencing system next. Once again, FAMM built a campaign that included legislators, families and concerned citizens. FAMM members shared their heartbreaking stories with lawmakers. In

December 2002, the legislature passed and Republican Governor John Engler signed legislation that repealed almost all of Michigan’s drug mandatory minimums. The reform reduced mandatory lifetime probation to a fiveyear term of probation, created new sentencing guidelines, and eliminated mandatory consecutive sentencing laws that required people convicted of multiple drug charges to serve those sentences back-to-back. Hundreds of Michigan prisoners were paroled and went home years before they would have without our victory. Taxpayers saved over $40 million in prison costs in the first few years, according to press reports.

Sally Smith benefited from FAMM’s work to improve Michigan’s sentencing laws and was released in 2008. Here she stands outside her workplace in Indiana.

Building on our success Despite these victories, FAMM’s work wasn’t done. Some 650 Lifers and others continued serving harsh sentences with no or limited parole eligibility. Working with Margaret Raben, FAMM’s volunteer legal advisor and president of the Criminal Defense Attorneys (CDAM) of Michigan, FAMM recruited volunteer attorneys to assist hundreds of Michigan prisoners seeking commutations from Governor Jennifer Granholm. Many FAMM members were granted commutations, including Sally Smith, a 650 Lifer who served 15 years for her involvement with an abusive boyfriend who sold drugs. Released in 2008, Sally is now living and working in Indiana, assisting her friends Steve and Rose Meck with managing their mobile home park and refurbishing and selling mobile homes. Sally has increased her company’s income by over $200,000 since she began working there, and she is getting certified in wastewater management, as well. “People can change. People can succeed. I’m so grateful,” she told continued on page 11

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continued from page 1 The last sacred cow

Rep. Bobby Scott welcomes the crowd at FAMM’s briefing.

servative endorsements, FAMM helped convince Democratic and Republican leaders to bring the bill up for a vote. This year, it has been exciting to see some of the well known conservatives FAMM has worked with for years step forward and become outspoken proponents of sentencing reform. Some of these leaders joined FAMM on April 14 for a high-profile, standing room only briefing on Capitol Hill titled, “The Last Sacred Cow: How Congress Can Cut Criminal Justice Spending Without Compromising Public Safety.” After introductory remarks by Representative Bobby Scott (D-Va.), attendees heard from Asa Hutchinson, former Republican congressman, U.S. Attorney, and head of the Drug Enforcement Administration; Grover Norquist, president of Americans for Tax Reform; and Tim Lynch, director of the Project on Justice, Cato Institute. FAMM President Julie Stewart served as the moderator. Remarks were read from Pat Nolan, former California Assembly Republican Speaker and current president of Justice Fellowship, who was unable to attend. Rep. Scott, a long time advocate for sentencing reform, thanked FAMM for building support for reform with both parties. “We have the number one incarceration rate in the world. We can reduce crime or we can play politics,” he said.

“We’re finally looking at criminal justice and saying, this is getting expensive and it’s not clear that it’s working. Now conservatives are giving political cover to lawmakers to make these changes.”

— Grover Norquist

Asa Hutchinson, known for his harsh views on drug offenders when he was in Congress, told the audience, “I have been a tough on crime conservative. I don’t shy away from the mantle. As conservatives we must remain true and faithful to taxpayers’ dollars. We should be open to change to save money, but more importantly to make a fairer system.” Hutchinson also told

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the panel that Congress should look at retroactivity for last year’s crack law because, “We’ve remedied the problem for the future, but how about those that are already incarcerated under the old system and the old system of unfairness? Should we tell someone who was arrested and convicted one day before the remedy and the unfairness was stopped, we are sorry you missed the fairer system by one day?” Tim Lynch recommended a moratorium on new federal prisons and no mandatory minimum sentences for nonviolent offenders. “We need a cost benefit analysis and scrutiny about what’s really working,” said Lynch. Grover Norquist summed up the reasons why conservatives are speaking out now. “We’re finally looking at criminal justice and saying, this is getting expensive and it’s not clear that it’s working. Now conservatives are giving political cover to lawmakers to make these changes,” said Norquist. “I believe the support of conservatives is crucial to achieving significant sentencing reform. Just as it took Nixon to go to China, it will take conservatives to help us restore balance to our criminal justice system,” concluded FAMM’s Julie Stewart. “That is not a slap at the progressives who have championed this cause so passionately and for so long. It’s just political reality.”

Major revolution in the states Federal lawmakers wishing to do more should take a lesson from their state counterparts when it comes to reforming criminal justice. Every couple of weeks, it seems, another state is overhauling its sentencing laws, or considering doing so. Many are changing their failed mandatory minimum laws so that taxpayers are not forced to continue paying millions to keep low-level offenders in prison. Kentucky, Alabama, Georgia, Indiana, Louisiana, Ohio, and Oklahoma jumped on the reform bandwagon earlier this year and are considering various corrections and sentencing reforms bills. In Florida, the new Republican governor is looking for savings in the prisons budget. Part of Florida’s problem is that nearly 6,000 prisoners are serving mandatory minimum drug sentences. At a price tag of more than $20,000 annually per prisoner, the total annual cost of incarcerating these prisoners is $1 billion. Recently, two bills were introduced in the Florida legislature to repeal the state’s mandatory minimums, with the support of FAMM’s Florida project (See more about FAMM’s Florida campaign on page eight). Florida TaxWatch and the Collins Center for Public Policy, two conservative groups, are also supporting sentencing reform and working with FAMM.


Other traditionally conservative states have already made reform a reality. Examples include: Arkansas. In March, Governor Mike Beebe signed into law a criminal justice reform bill that reduces sentences for some nonviolent offenses, expands alternative-sentencing programs such as drug courts, and allows the state’s corrections department to hire more parole and probation officers. The governor proposed the plan after learning that existing sentencing laws would force the state to spend more than $1 billion on prisons over the next decade. Texas. In 2007, the Lone Star State was also facing a $1 billion bill for new prisons unless the state could find a way to curb its skyrocketing prison populations. Republican Governor Rick Perry proposed to shift resources from incarceration to treatment programs. The plan helped to reduce both crime and incarceration rates. Texas continues to adopt evidence-based reforms that aim to help newly released inmates adjust to life outside prison, thereby reducing recidivism while protecting public safety. South Carolina. Before leaving office last year, South Carolina’s Republican Governor Mark Sanford signed a comprehensive reform bill that diverts low-risk, nonviolent offenders into community corrections programs rather than state prisons. The new law will save money while helping offenders make the transition back into their communities.

Safety first, savings second Although the states’ economic woes clearly forced lawmakers to look for cheaper alternatives to prison, it is evident that cost is not the sole factor in the state reform revolution. No policymakers have suggested that public safety might be jeopardized by the changes. Rather, these leaders are looking for ways to keep crime under control more efficiently.

Massachusetts. Last year, FAMM’s Massachusetts team led the effort to make drug offenders serving mandatory minimum sentences in county prisons eligible for parole. This year, FAMM is working with Governor Deval Patrick to build support for legislation that would expand parole eligibility and repeal drug mandatory minimums. (Read more about FAMM’s Massachusetts campaign on page nine). Delaware. In April, Delaware approved a bipartisan new law that eliminated mandatory minimum sentences for some first-time drug offenders and reduced minimum prison sentences for drug felonies. The new law also restored the intent of the drug-free school zones law by reducing the zone size from 1,000 feet to 300 feet. (A comprehensive list of state sentencing reforms is included on page eight.)

Reform equals savings With so many governments looking for savings in their criminal justice budgets, we are optimistic that sentencing reform will grow even more popular in the near future. FAMM looks forward to working with policymakers in both parties to enact smarter and fairer sentencing laws. FG

“Should we tell someone who was arrested and convicted one day before the remedy and the unfairness was stopped, we are sorry you missed the fairer system by one day?” — Asa Hutchinson

(Left): Legislative aides and advocates filled the briefing room. (Below, from right to left): Julie Stewart introduces Asa Hutchinson, Tim Lynch and Grover Norquist.

In fact, the debates in many of these states demonstrate that policymakers are familiar with the last three decades of research into what works and what doesn’t in controlling crime. These hard-learned lessons should also be heeded by Congress.

Reform wave is bipartisan Meaningful sentencing reform is not for conservativeled states only. Some traditionally liberal states also have demonstrated that reform is a bipartisan endeavor.

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federalnews

The fight returns to the Commission Even as FAMM continues to work with

Congress to introduce and pass legislation to make changes to crack mandatory minimums retroactive, the immediate fight for crack sentencing reform has returned to the U.S. Sentencing Commission. In the wake of the August enactment of the Fair Sentencing Act (FSA), which lowered sentences for crack cocaine to more closely resemble those for powder cocaine, the U.S. Sentencing Commission began a three-step process to adjust the federal sentencing guidelines.

First step: Temporary emergency amendment On October 15, 2010, the Commission issued a “temporary emergency amendment” that aligned the federal guidelines with the FSA’s lower mandatory minimums for crack cocaine offenses. The temporary amendment set the Base Offense Levels for 28 grams of crack at Level 26 and for 280 grams of crack at Level 32. In FAMM’s opinion, these base offense levels are higher than they need to be – even higher than the mandatory minimums – and we told the Commission so. The temporary emergency amendment went into effect on November 1, 2010. It applied to everyone sentenced on or after that date. The amendment also adds new enhancements to be considered where any drug crime involved violence, bribing law enforcement officers, or maintaining a drug house. Other new enhancements could increase drug sentences if the defendant was a leader, manager, or supervisor in the offense and engaged in other aggravated conduct, such as involving vulnerable

Need crack profiles FAMM urgently needs to hear from federal prisoners who are serving crack cocaine cases. Specifically, we are seeking people serving crack guideline sentences who could benefit from a sentence reduction if the U.S. Sentencing Commission makes the crack guideline changes retroactive. Please send us a letter telling us about your case and we’ll send you a FAMM case summary form to complete if we feel we can use your story. Write FAMM c/o Crack Profiles, 1612 K St., NW, Suite 700, Washington, D.C. 20006 or email famm@famm.org.

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individuals or using fear or affection to involve minor players in the crime. The temporary emergency amendment also provides for sentence reductions for minimal participants (e.g., girlfriends) who were involved in a drug offense because of a relationship but did not earn any money from the drug activity.

Second step: Temporary emergency amendment made permanent In April 2011, the Commission proposed making the temporary emergency amendment permanent and held a hearing to consider it and other changes to the guidelines. FAMM members responded to the Commission’s request for public comment and flooded it with 15,000 letters in three short weeks, urging lower sentences for crack and all drugs, as well as retroactivity for the new crack guideline. At the public hearing, FAMM vice president Mary Price encouraged the Commission to lower not only the crack base offense levels, but all drug base offense levels by two levels. On April 6, the Commission approved the permanent amendment, which disappointingly maintains the crack base offense levels at 26 and 32. The Commission also chose not to vote on reducing all drug guidelines but may take that question up in the future. The permanent crack amendment was sent to Congress by May 1, 2011. It will become permanent on November 1, 2011 unless Congress rejects it.

Third step: Retroactivity? The Commission is now set to consider making changes to the crack guidelines retroactive. It will once again request public comment on whether to make the crack guideline retroactive and FAMM will be contacting you and asking you to weigh in with the Commission. The Commission also plans to hold a public hearing on June 1 on crack guideline retroactivity. Julie Stewart and a FAMM member will testify at the hearing and we are looking forward to being there to share our views – and yours – with the Commission. Sometime after the hearing, the commissioners will vote on retroactivity. Their decision need not be approved by Congress. If you want to be heard before this historic vote, be sure to join FAMM’s Action Alert team by going to www.famm.org.


Making sense of federal good time proposals FAMM has fought for federal “good time” changes for years - in the courts, in Congress, and with various Administrations. This article will help answer some of the questions swirling around recent proposals to change the good time calculation.

seven day increase. He also promoted another early release proposal designed to cut costs and award prisoners up to 60 days credit per year for good behavior and participation in institutional programs proven to reduce the risk of recidivism.

What happened?

What’s next?

On February 14, Attorney General Eric Holder announced that President Obama’s Fiscal Year (FY) 2012 budget proposal includes $28.2 billion for the U.S. Department of Justice, a 1.7 percent increase over FY 2011 budget authority. The proposed budget includes a plan to save $41 million by seeking legislation to expand the federal good time credit by seven days per year. It also includes increased spending on new prison facilities and increases in reentry programs for prisoners.

FAMM supports the idea of permitting federal prisoners to earn additional good time credit as a sound criminal justice policy. However, the Justice Department has not yet made public the details of the good time proposals. It is also important to note that the proposals have not been introduced in Congress. If they are, either proposal could change drastically or even be rejected by Congress.

In Congressional testimony a month later, Bureau of Prisons (BOP) Director Harley Lappin promoted the

FAMM is working very hard to advance the good time proposals and will let you know if and when their status changes.

Getting smarter on crime with Sen. Jim Webb Senator Jim Webb (D-Va.) is on a mission

to improve the criminal justice system. On February 8, Sen. Webb reintroduced the National Criminal Justice Commission Act (NCJCA). The NCJCA would create a blueribbon, bipartisan commission of experts tasked with an 18-month review of the nation’s criminal justice system and offering concrete recommendations for reform.

the Senate Judiciary Committee on January 21, 2010, with 39 bipartisan cosponsors. On July 28, 2010, it passed the U.S. House of Representatives, with the support of Rep. Bill Delahunt (DMass.) and Rep. Lamar Smith (R-Texas), now Chairman of the House Judiciary Committee.

In marking the introduction of the legislation, Sen. Webb told Congress, “This is Senator Jim Webb not a political question; it is a leadership challenge that affects every community in the country and calls for us to act. We can be smarter Now the bill must pass the Senabout whom we incarcerate, improve public safety ate and be introduced in and outcomes, make better use of taxpayer dollars, and approved by the House before it bring greater fairness to our justice system.” can be sent to the president for his signature. FG Last year the same bill came very close to passing before Congress adjourned. It was approved by

Did you know?  Over 210,000 people are incarcerated under the jurisdiction of the Federal Bureau of Prisons (BOP), making it the largest prison system in the country.  The President’s budget anticipates a prison population of more than 219,000 by the end of fiscal year 2012.  The federal prison population has increased at least three times the rate of state prisons since 1995 and costs the taxpayers over $5 billion per year. Sources: Bureau of Prisons website and the president’s FY 2012 budget.

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State responses to mandatory minimum laws Around the nation, sentencing and corrections reform is flourishing. Michigan kicked off the rollback in 1998, and now 18 other states have enacted sentencing reforms. Here’s a list of significant changes. ARKANSAS In March 2011, the governor signed into law a criminal justice reform bill that reduces sentences for some nonviolent offenses, expands alternative sentencing programs, and hires more parole and probation officers. Connecticut In 2001, legislators gave courts some leeway to relax mandatory minimum sentencing laws for sale or possession of drugs for “good cause,” even if the offense occurred within a drug-free school zone. Delaware In April 2011, the governor of Delaware signed legislation repealing the state’s mandatory minimum sentences for drug offenses. Indiana In 2001, legislators eliminated the state’s mandatory 20-year prison sentence for drug offenders arrested with three grams or more of cocaine, giving courts authority to sentence drug offenders who sell drugs to support their drug dependency to treatment instead of prison. They also modified the “three strikes” law to provide an exception in the case of habitual substance abusers, as well as cases in which the third offense is a misdemeanor that was charged as a felony because of the offender’s prior convictions. Louisiana Legislators repealed mandatory minimum sentences for simple drug possession and many other nonviolent offenses in 2001, and cut minimum sentences for drug trafficking in half. They also restored the possibility of parole, probation, or suspension of sentence for a wide range of nonviolent crimes, from prostitution to burglary of a pharmacy. The bill allowed prisoners who were already sentenced to apply for an early release recommendation from a “risk review panel.” If recommended favorably, their cases go to the pardon board and are then sent to the governor and parole board for release consideration.

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Maine In 2003, legislators reduced the mandatory minimum sentence for murder from 25 to 20 years, and authorized courts to suspend other mandatory prison sentences altogether if they are found to create a “substantial injustice” and if doing so would not diminish the gravity of the offense or endanger public safety. Maryland In 2007, the Maryland General Assembly reformed mandatory minimum provisions by restoring parole eligibility for people convicted of burglary or daytime housebreaking prior to October 1, 1994. Massachusetts In 2010, the legislature eased restrictions on drug offenders serving mandatory minimum sentences at county Houses of Correction. They are now eligible for parole after serving one-half of their sentences, unless the drug offense involved violence, a weapon or children, or if the drug offender “directed the activities of another” during the offense. Minnesota In 2009, the legislature amended the law to allow courts to sentence fifth degree felony controlled substances sale or possession offenders without regard to the mandatory minimum. Mississippi In 2001, the legislature amended the sweeping truth-in-sentencing law enacted in 1994 to allow nonviolent first-time offenders to regain parole eligibility after serving one-quarter of their prison sentences. These changes made more than 2,000 of the state’s prisoners eligible for parole in 2001. By April 2003, 900 had been released, saving the state $12 million in prison costs. Michigan Lawmakers passed sweeping reforms of its mandatory minimum drug penalties in 1998 and 2003. (See page three for details.) Nevada In 2007, the legislature repealed mandatory sentencing enhancements and expanded “good time” eligibility for certain offenses. New Jersey In 2010, the governor signed legislation passed by the New Jersey Senate and the state Assembly that gives judges some discretion when sentencing defendants convicted of school zone violations.

New Mexico In 2002, the legislature repealed a mandatory sentence enhancement that required prosecutors to charge defendants with a prior drug conviction as habitual offenders. The sentence enhancement is now discretionary, allowing judges to determine whether it is appropriate on a case-by-case basis. New York In April 2009, New York signed into law comprehensive drug policy reforms that expand treatment options while repealing most mandatory minimum sentences for drug offenses. With some exceptions, drug offenders who are closely supervised by drug court personnel are allowed to enter treatment programs instead of being sent to prison. Judges have far greater discretion to impose sentences that fit the circumstances of an individual’s case while still protecting public safety. Some drug offenders who are serving disproportionately long sentences are eligible for resentencing while others will become eligible for parole. North Dakota Lawmakers repealed a one-year mandatory minimum sentence for first-time drug offenders in 2001 and called for a study of other mandatory minimum laws. Rhode Island In November 2009, Rhode Island repealed all mandatory minimum sentencing laws for drug offenses. Previously, drug offenders received 10 and 20-year sentences, even for possession offenses, along with $10,000 and $25,000 fines. South Carolina In June 2010, South Carolina removed the 10-year mandatory minimum sentence for school zone violations, allowed the possibility of probation for certain second and third drug possession convictions, and eliminated mandatory minimum sentences for first convictions of simple drug possession. TEXAS In 2007, the Lone Star State shifted resources from incarceration to treatment programs. The plan helped to reduce both crime and incarceration rates.


statenews

FAMM at the forefront of Florida reform efforts A shift in attitudes toward criminal justice reform is

beginning to take place in Florida, due in part to FAMM’s efforts. Consider just a few recent developments:  Republican Senator Ellyn Bogdanoff (R-Ft. Lauderdale) and Democratic Representative Ari Porth (D-Coral Springs) introduced legislation to abolish mandatory minimum sentences for drug trafficking and direct the Department of Corrections to create an offender reentry program for prisoners who meet certain criteria.  Governor Rick Scott’s “Law and Order Transition Team” recommended that judges be given more discretion in sentencing. Florida’s new Department of Corrections secretary, Edwin Buss, echoed that sentiment, calling for reforms of mandatory minimum sentencing.

FAMM worked closely with Sen. Bogdanoff and Rep. Porth to ensure their bills represented the interests of our members, and traveled to Tallahassee every week of the legislative session to represent FAMM supporters. On March 28, the bills unanimously passed the Senate Criminal Justice Committee, a huge victory for FAMM and other advocates. However, the House bill got caught in subcommittee, unfortunately killing its chances for passage this legislative session. “I was thrilled to see sentencing reform pass the Senate Criminal Justice Committee unanimously,” said FAMM Florida project director Greg Newburn. “Two years ago, it would have been unthinkable to have a Republican and Democrat sponsoring sentencing reform

FAMM set ambitious goals for this legislative session, and by and large we have achieved those goals and more. “We understand that reform is neither an easy nor quick process,” says Newburn. “However, with sentencing reform now on the agendas of both Republicans and Democrats, we are encouraged about the prospects for real reform.”

We need your help

 “Right on Crime,” a criminal justice reform organization that includes prominent conservatives like Newt Gingrich, Bill Bennett and Asa Hutchinson, launched its efforts in Florida. As part of that launch, Grover Norquist, president of Americans for Tax Reform, gave a speech to legislators, lobbyists, activists and state officials, in which he called for the end to mandatory minimum sentencing and other common sense reforms.

Legislative success laying groundwork for future reforms

legislation, or to see Florida’s administration leaning toward significant criminal justice changes. It’s also encouraging to see conservative groups like Florida TaxWatch and Right on Crime endorse the work we’re doing,” concludes Newburn.

Florida’s legislative session lasts only 60 days, but work toward reform lasts all year. Over the next few months, FAMM needs each and every member to reach out to friends, neighbors and colleagues, and have them sign up for action alerts at www.famm.org. Tremendous strides have been made in the last few months, and we need your help to keep up the momentum.

Outreach in the Sunshine State Florida Project Director Greg Newburn has been traveling the state, meeting with FAMM members – like Ruth Kelley, shown here with Greg – in Daytona Beach, Jacksonville, Pensacola, Orlando, Tampa and West Palm Beach. He recently discussed sentencing reform with members of Americans for Prosperity of Florida, and he’s given talks to law students at Florida State University and the University of Florida. He has been invited to give presentations to several chapters of the League of Women Voters, the Florida Free Speech Forum, the Republican Executive Committees, the Republican Liberty Caucus and Tea Party groups around the state. “Education is the most critical component of change,” Newburn said. “When people hear our stories of injustice, they invariably demand reform.”

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statenews, continued

Massachusetts

Gov. Patrick calls for groundbreaking reforms

Momentum is building for sentencing reform

Shortly after FAMM’s bills were filed, Gov. Patrick filed his own bill, H.40, which includes ground-breaking drug sentencing reforms. Indeed, the governor called for the repeal of many mandatory minimums for nonviolent drug offenses. The governor’s willingness to take the lead on drug sentencing reform will be extremely helpful. The drug sentencing reforms in his bill include:

The Massachusetts legislature started its 2011-2012 session in January and it will end on July 31, 2012. FAMM drafted two bills that were filed for us in January by legislators who support the reform of drug sentencing laws, Senator Steven Tolman (D-Boston) and Representative Benjamin Swan (D-Springfield). In addition, Governor Deval Patrick filed his own bill that includes some excellent sentencing reforms. The bills have all been assigned to the Judiciary Committee, which will hold a public hearing on them in the months ahead. FAMM’s general repeal bill is H.2266 (House version) and S.909 (Senate version), “An act to repeal mandatory minimum sentences for drug offenses.” This bill would:

 For school zone offenses, the size of the zone would be reduced from 1,000 feet to 100 feet, the same as for parks and playgrounds, although the mandatory minimum sentence would be kept;

 Make state prisoners serving mandatory drug sentences eligible for parole after serving two-thirds of the minimum sentence;

 Mandatory minimum sentences would be repealed for drug offenses that do not involve guns, violence or children. This part of the bill would not change the sentence of anyone who has already been convicted or is now in prison.

FAMM’s school zone bill is H.2267 and S.908, “An Act to reform the ‘school zone’ law for drug offenses.” This bill would:  Reduce the size of the school zone from 1,000 feet to 100 feet of a school and its property;  Exclude from the school zone law drug offenses that occur in a home within the zone (although the offense itself will still be illegal) to avoid a second penalty solely based on where someone lives;  Repeal the mandatory minimum sentence for school zone offenses, make state prisoners serving school zone sentences eligible for parole after serving twothirds of the minimum sentence, and make all school zone offenders eligible for work release and earned good conduct credits.

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 Both state and county prisoners now serving mandatory drug sentences would be eligible for work release and earned good conduct credits;

 Repeal all mandatory minimums for drug offenses and instead let courts impose sentences that fit the crime, ranging from probation to the maximum penalty allowed;

 Make all drug offenders serving mandatory minimums eligible for work release and earned good conduct credits.

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 State prisoners now serving mandatory drug sentences would be eligible for parole after serving half of their maximum sentence, unless they were convicted of a crime involving guns, violence or children in connection with the drug offense;

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FAMM testifies against habitual offender bills On March 16, FAMM’s Massachusetts project director Barbara Dougan testified before the legislature’s Judiciary Committee to oppose three habitual offender bills that could result in overly harsh maximum sentences. The three bills are H.434, often called “Melissa’s Bill,” H.41, the Governor’s version of a habitual offender bill, and H.2204. Supporters claim that the first two bills would target only repeat violent offenders but as the bills are written, they would also apply to nonviolent drug offenders. In her testimony, Barbara said, “We’ve been down this road before. Mandatory minimum sentencing laws for drug offenders were supposed to target drug kingpins. Instead, our prisons are crowded with low level or nonviolent drug offenders serving disproportionately long


sentences. Habitual offender sentencing laws are supposed to target repeat violent offenders. Instead, these bills cast far too wide a net, capturing many offenders who neither deserve maximum sentences nor require maximum sentences to protect the public.” The third bill, H.2204, would focus on those who have committed three serious felonies, but would require a sentence of life without parole, regardless of the facts of the case. This goes against everything that FAMM stands for – that sentences must fit the crime. The harshest sentence possible in Massachusetts should be reserved for those who actually deserve it. FG

FAMM milestones continued from page 3

FAMM recently. “FAMM helped us come out and do good and be good and appreciate it all.” Of her fellow lifers she said: “Our lives weren’t disposable. We were worth saving, and there are others like us.” In December 2010, Governor Granholm signed the last FAMM package of reform bills into law, thanks to the ongoing efforts of CDAM and lobbyist Noah Smith. The new laws clarify the probation and parole eligibility provisions for drug offenders sentenced before March 1, 2003 and also provide earlier parole eligibility for individuals serving certain consecutive sentences.

The spark for a sentencing revolution

Photo: Tony Irving

Getting the word out Barbara Dougan, FAMM Massachusetts project director, participated in a February forum on prison conditions and over-incarceration, “From Cell Block to City Block.” In March, she spoke about drug sentencing reform at the annual policy forum of the Massachusetts Organization for Addiction Recovery (MOAR) and at the monthly meeting of the NAACP, Boston Branch. In April, she was a panelist at a Boston symposium, “25 Years After Crack: the Effects of Crack Cocaine on Boston’s Black Community” (pictured above).

Michigan’s reforms have sparked a sentencing revolution nationwide, showing that mandatory minimum reform is not a Democratic or Republican issue, but an issue that both parties should support. Michigan chose to give judges flexibility and sentencing guidelines instead of expensive one-size-fits-all punishments that don’t increase public safety. Michigan’s reforms helped the state save at least $115 million, reduce the prison population, and close prisons. Now many other states have followed Michigan’s example and reformed their mandatory minimums for drug crimes. The sweetest part of FAMM’s Michigan victories are measured best in human lives. “FAMM has helped me tremendously,” says Frank Rodriguez, a 650 Lifer released earlier this year after serving almost 17 years in prison. Frank now has a 4.0 GPA in college and is working as a paralegal with the State Appellate Defender’s Office in Michigan. His advice to FAMM members with loved ones in prison: “Everything comes with time. It takes time and a lot of support. Support a voice that can help you collectively – if you don’t, you’re in there by yourself. FAMM has supported me overwhelmingly. When my family came to meet me when I was released, they told me, ‘We never thought you were going to come home.’” FG

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litigation

The High Court (once again) affirms judicial discretion at sentencing The federal sentencing guidelines say that judges

may not consider a defendant’s post-sentencing rehabilitation when imposing sentence. In Pepper v. United States, No. 09-6822, the U.S. Supreme Court rejected that rule in a robust affirmation of judicial discretion and the advisory – not mandatory – nature of the federal sentencing guidelines. On March 2, the Court said that a judge may consider any post-sentence rehabilitation of a defendant when resentencing him after his original sentence was overturned on appeal. Their decision rested, in part, on themes that were advanced in FAMM’s amicus brief. FAMM wrote: A defendant must be sentenced based on who he is, not just who he was. Those principles are part of the fabric of federal sentencing law. A sentence imposed by a court that has blinded itself to a defendant’s rehabilitation is all but guaranteed to be greater than necessary to achieve its purposes—and is therefore unjust and unlawful. And, the Supreme Court ruled that: [Jason] Peppers’ exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies…” [and a]ccordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentencing sufficient but not greater than necessary” to serve the purposes of punishment. The opinion recounted Jason Pepper’s travels through life and the courts. At 25, he was drug addicted, long-estranged from his family and on a downward trajectory. He pled guilty in 2003 to trafficking in methamphetamine. The government sought a modest departure to reflect his substantial assistance and the court sentenced him to 24 months, a significant departure from the 97-121 month sentence called for in the guidelines. The government appealed and the appeals court sent the case back to the sentencing court in light of Booker. By the time of Pepper’s resentencing, he had been released from prison. He told the court that he was sober, having successfully completed the residential drug abuse program while incarcerated. He was a straight A college student, was working part time, and

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had rebuilt his relationship with his father. His probation officer recommended that the original 24-month sentence Pepper had already served was reasonable in light of his assistance to the government and rehabilitation after leaving prison. The court agreed. However, the government appealed, this time citing the 8th Circuit’s ban on recognizing post-sentence rehabilitation. The Appeals Court agreed and sent the case back to district court, this time to another judge. By the time the case reached her, Pepper’s rehabilitation was even more pronounced and the Supreme Court had decided more cases strengthening judicial discretion, including Gall v. United States, a case FAMM participated in with an amicus brief. Nonetheless, the second judge denied Pepper any credit for his rehabilitation because of the 8th Circuit’s rule. This was despite the fact that Pepper, still in college, was supervisor of a night crew at his workplace (and named “associate of the year”), had married, and was supporting his wife and her daughter. The judge resentenced him to 65 months and Pepper was obliged to return to prison for a year until the Supreme Court agreed to hear his case. The Supreme Court’s decision is a ringing endorsement that a judge must be free to consider every defendant as an individual, every case as unique, and must impose a sentence no longer than necessary to comply with the purposes of sentencing. The decision unpacked those provisions of federal law that support the consideration of post-sentence conduct. One directs that “the court may consider, without limitation, any information concerning the background, character and conduct of the defendant…” Reaffirming that the guidelines must be given “respectful consideration,” the Court said they may not limit the court’s discretion to consider all the things a court must take into account as set out at 18 U.S.C. § 3553(a). Pepper will face resentencing again, but this time backed up with this strong opinion. The sentencing court was clearly directed that it must take his postsentence rehabilitation into account when he returns and it should also heed the message, that in the Court’s opinion, Pepper’s post sentencing conduct has been, in a word, “exemplary.” FG


FAMM in the news February 10, 2011 Issues with Jane Velez-Mitchell March 24, 2011

Editorial: Smart on Crime

Twin brothers torn apart by prison

FAMM’s Julie Stewart and Karen Garrison, and Karen’s son Lawrence Garrison, were guests on the CNN Headline News program, Issues with Jane Velez-Mitchell. FAMM member Crystal Garcia also joined Julie on the program in February.

January 28, 2011

Conservatives latch onto prison reform

Julie Stewart, founder of Families Against Mandatory Minimums, even believes that Republicans, with their tough-on-crime credentials, may have a Nixon-in-China cover to push reform further than Democrats. “There is a safety conservatives have,” she said. “And for better or worse, Democrats don’t always have that luxury.”

“Florida’s mandatory minimum drug laws are among the harshest in the country, requiring courts to impose ‘one-size-fits-all’ sentences on drug offenders, regardless of their role in the offense, need for treatment, or prior criminal record,” says Greg Newburn, director of Families Against Mandatory Minimums (FAMM). “These mandatory minimums are major contributors to overflowing state prisons and our state’s budget crisis.”

February 28, 2011

You can have sex with them; Just don’t photograph them

“You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate,” says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums. “But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn’t fit the culpability.”

March 17, 2011

March 16, 2011

Op-ed: Don’t make a federal case out of it

Mass. lawmakers hear testimony on parole changes

In a joint op-ed, FAMM’s Julie Stewart and Pat Nolan, president of Justice Fellowship, wrote:

Barbara Dougan, director of Families Against Mandatory Minimums, said the state has to guard against drawing too many offenders into lengthy or life sentences. “We are casting our net far too wide and we will end up with unintended consequences,” she said.

“Too often, Congress has turned traditionally state and local offenses into federal crimes. Worse, it routinely has attached mandatory minimum sentences to the new crimes it has created. Years of experience and research have revealed that those mandatory sentences overfill prisons and bankrupt budgets but don’t reduce crime effectively. In an age of global terrorism, does it make sense to divert scarce federal resources to investigate local crimes?” FG

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is justice being served? The following cases represent FAMM’s “profiles of injustice.” Are you or a loved one serving a mandatory sentence in federal or state prison? If so, we need you to help to show the human face of sentencing injustice. Please request a profile form from FAMM, 1612 K St., N.W., Suite 700, Washington, DC, 20006.

SHEILA DEVEREUX (Oklahoma) After Sheila got married, she soon became the mother of three children she describes as “my life” and devoted her time to caring for her kids and earning a business degree. Unfortunately, when her marriage deteriorated and ended in divorce and an ugly custody battle, Sheila turned to drugs and alcohol to dull her pain.

Her first involvement with the criminal justice system came in 1998, after an accidental cocaine overdose. She was taken from the hospital to jail and charged with felony possession of a controlled substance. Several years later, police found a small Sheila Devereux amount of marijuana in Sheila’s truck, her second felony. She received probation for both of these offenses, but they would later come back to haunt her. In 2005, Sheila’s ex-husband won custody of their children. Sheila was staying at a friend’s house while she prepared to move closer to her kids. Unbeknownst to Sheila, her friend was under police surveillance for selling drugs to a confidential informant. One afternoon Sheila was getting ready to attend her youngest son’s basketball game when police burst into the house. Sheila’s friend confessed that he had drugs and officers found approximately six grams of crack cocaine. Both were arrested and Sheila was also charged with trafficking in illegal drugs. While out on bail before trial, she stayed sober and found steady employment, spending every free moment with her children. What sentence do you think Sheila should have received? Though she had no drugs in her possession and was not a legal resident of the house, Sheila was held accountable for all of the cocaine. Oklahoma law mandates that when over five grams of crack is found, everyone present or involved is considered a drug trafficker. At trial, police testified they never saw Sheila participate in any illegal activities during surveillance. Sheila’s friend also admitted that the drugs were his and Sheila knew nothing about them. However, because of her two prior felonies, Sheila was charged under Oklahoma’s three strikes law and sentenced to a mandatory term of life in prison without the possibility of parole. Her friend received 13 years. Sheila is active in the prison’s church and is also proudly sober. She works as a telemarketer, leaving the prison every day to complete her eight-hour shift. Sheila remains very close with her children, now ages 25, 19 and 13. Though they are not able to visit often, she talks on the phone with them every week.

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Michael McClain (Federal) In June 1999, Michael and

his wife had their first child. Michael had to work longer hours to support his family and made a disastrous decision to try cocaine. He became addicted, his marriage dissolved and when he lost his job and custody of his son, he enrolled in drug treatment and kicked his cocaine addiction.

Michael McClain

Michael was hired as an insurance adjuster in 2000, fell in love and gained sole custody of his son. But the new life Michael had built came crashing down when he tried methamphetamine in 2003. In a short time he lost all he had regained and Michael’s family assumed care of his son. With his drug use out of control, Michael began selling drugs to finance his addiction. In 2005, police discovered that Michael and five others were selling marijuana and meth. Officers set up surveillance and conducted a series of traffic stops to build evidence against Michael. At the final stop, officers searched Michael’s car and found a revolver, 15.5 grams of a mixture containing meth, and 53 grams of cocaine. In August 2006, Michael was arrested on state charges stemming from his drug activities. One year later he was found not guilty in state court, only to be arrested by federal marshals immediately after the verdict on federal charges of drug conspiracy and use of a weapon during a drug trafficking crime. What sentence do you think Michael should have received? Michael pled guilty to the federal charges and received 10 years for the meth conspiracy on top of five years for the gun charge. As he was forced to impose the 15-year mandatory minimum, Judge Ortrie Smith said, “I don’t have any real discretion here…this case is heartbreaking.” If not for the mandatory minimum, Judge Smith could’ve sentenced Michael to eight to 10 years under the federal sentencing guidelines. Michael’s biggest regret is that his poor choices have left his son, who will be an adult by the time Michael is released in 2020, without a father.


outreach

Outreach highlights Jennifer Seltzer Stitt, FAMM

director of federal legislative affairs, spoke about FAMM and the need for sentencing reform at Ecumenical Advocacy Days on March 25 in Washington, D.C. She joined Kemba Jennifer Seltzer Stitt Smith-Pradia, president of the Kemba Smith Youth Foundation, who served almost a decade in federal prison for her tangential role in a drug conspiracy. Kemba received a commutation from President Bill Clinton in 2000 and has been working for reform since her release. Ecumenical Advocacy Days is a movement of the worldwide Christian community, its partners and allies. Jennifer also discussed federal efforts to reform the criminal Kemba Smith-Pradia justice system and mandatory minimums at the International Community Corrections Association’s D.C. Public Policy Forum on March 15. The International Community Corrections Association is the voice for residential and other community corrections programs.

Julie Stewart spoke to Harvard Law School students on February 15. They are participating in a Washington semester program and Julie was invited by one of the professors, Jonathan Wroblewski from the Department of Justice, to speak to the class about sentencing policy. FG Julie Stewart

Find FAMM on the web Stay up to date on the latest developments in sentencing by finding FAMM on the web! Website – Go to www.famm.org and click on the “Get Connected” link on the left to join our email list. We’ll send you regular updates on the status of sentencing legislation and share tips on how you can support them. CorrLinks – Federal prisoners can sign up to receive

emails from FAMM. Request famm@famm.org to be added to your list of accepted senders. We keep our messages short and sweet, but full of the accurate information you’ve come to expect from FAMM. Facebook and Twitter –

Friend us on Facebook and follow us on Twitter – we’ll make sure you get the latest news!

SentenceSpeak …is a new sentencing blog hosted by FAMM. Our blog provides savvy, up-to-the-minute coverage and commentary on sentencing news, policy developments, and research. We’re engaging the public to make our sentencing system fairer, smarter, and more effective.

Visit http://sentencespeak.blogspot.com/

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NONPROFIT U.S. Postage PAID

families against mandatory minimums

Southern, MD Permit 4205

1612 K Street NW, Suite 700 Washington, DC 20006 phone 202.822.6700 fax 202.822.6704 email famm@famm.org www.famm.org

CHANGE SERVICE REQUESTED

We’re building a movement for sentencing justice at FAMM, and we need your help. Have you been affected by rigid laws that delivered an unfair punishment? Or are you a taxpayer who’s fed up with wasting money on incarcerating too many nonviolent offenders? Whatever your reason to care, we need you! Join FAMM and support our work for justice. Show your support by participating in our campaigns, signing up for CorrLinks if you’re in federal prison, and making donations to FAMM. Working together, we can change the laws faster! Visit www.famm.org to donate or join our mailing list. You can also friend FAMM on Facebook.

HELP WA

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Nation’s le ad sentencing ing r organizati eform on individual seeks s passionate who are about justice. Sound lik e you or someone you know ? Apply no w!


FAMMGram, Spring 2011