Left and Right come together for sentencing reforms


On Election Day, California voters approved Proposition 47, a sentencing reform measure designed to address prison overcrowding, something for which the state of California has faced several costly lawsuits and non-violent offenders have been ordered released by the courts. California Voters Pass Proposition 47 Sentencing Reform:

jail_barsCalifornia voters have approved Proposition 47, a ballot measure that will reclassify six low-level property and drug offenses from felonies to misdemeanors. These offenses include shoplifting, theft, and check fraud under $950, as well as personal use of most illegal drugs. State savings resulting from the measure are estimated to be at least $150 million a year and will be used to support school truancy and dropout prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alternatives to incarceration.

This historic vote demonstrates support to advance a public safety strategy beyond incarceration to include treatment and prevention. The measure allows individuals currently serving prison terms for eligible offenses to apply to have their felony sentences reduced to misdemeanors and persons who have completed their felony sentence to apply to the court to have their conviction changed to a misdemeanor. Approximately, 10,000 incarcerated persons will be eligible for resentencing under the new law.

Since California reached its peak prison population in 2006, prisoner counts have fallen every year. This dramatic change was primarily driven by the state’s efforts to comply with a court order to reduce prison overcrowding. In a significant 2011 decision, the U.S. Supreme Court in Brown v. Plata found the provision of health care in the California prison system to be constitutionally inadequate due to the severe overcrowding in the system; the state was required to reduce this figure to 137.5% of design capacity within two years.

Through “Realignment,” the state has made substantial reductions in its prison population but has yet to reach the court-stipulated level. Changes in policy and practice have resulted in higher jail populations, but also substantial numbers of people now under community supervision rather than state prison.

On a related note, in November a George Soros (FAUX News’ favorite “librul” boogeyman) foundation gave a $50 million grant to the ACLU to pursue sentencing reform policies. ACLU in $50 Million Push to Reduce Jail Sentences:

With a $50 million foundation grant, the largest in its history, the American Civil Liberties Union plans to mount an eight-year political campaign across the country to make a change of criminal justice policies a key issue in local, state and national elections.

The goal of the campaign, financed by George Soros’s Open Society Foundations, is to slash an incarceration rate that has tripled since 1980. There are currently some 2.2 million prisoners in the United States.

The campaign aims to translate into state and federal policy a growing belief among many scholars, as well as of a coalition of liberal, conservative and libertarian political leaders, that the tough-on-crime policies of recent decades have become costly and counterproductive.

In that view, widespread drug arrests and severe mandatory sentences are doing more to damage poor communities, especially African-American ones, than to prevent crime, and building ever more prisons that mostly turn out repeat offenders is a bad investment.

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The grant is going to the political arm of the A.C.L.U., which has far more leeway to lobby for laws, run ads on television and finance political action committees to promote candidates than the group’s larger, traditional branch, which relies more on litigation. As a result, the money is not tax-deductible.

While the A.C.L.U. has often been associated with liberal causes like ending the death penalty and promoting same-sex marriage, Anthony D. Romero, the group’s executive director, said the organization was building ties with conservative leaders promoting alternatives to incarceration and would not hesitate to aid Republican candidates who support needed steps.

“I think criminal justice reform is one of the few issues where you can break through the partisan gridlock,” Mr. Romero said, adding that the group would seek out Republican lobbying firms to help reach legislators.

In the latest example of converging views, conservatives including Newt Gingrich and B. Wayne Hughes Jr., a Christian philanthropist, joined the Soros-led foundation and the A.C.L.U. in support of Proposition 47, a California ballot measure to redefine many lower-level felonies, including possession for personal use of hard drugs, as misdemeanors. The change, which passed by a wide margin on Tuesday, is expected to keep tens of thousands of offenders out of prison and save the state hundreds of millions of dollars each year.

The Koch brothers, major funders of conservative causes and candidates, have joined in. Koch Industries recently gave a grant “of significant six figures” to the National Association of Criminal Defense Lawyers to support the defense of indigents, said Mark Holden, senior vice president and general counsel at Koch Industries.

“Whether the human cost or the societal cost, what we’re doing in the criminal justice system isn’t working,” Mr. Holden said. “We’re finding common ground with people with different political affiliations,” he said, praising the advocacy work of the A.C.L.U. in this field.

The Hill reports today, Charles Koch eyes sentencing reform as a 2015 priority:

Conservative mega-donor Charles Koch says reforming the criminal justice system to make it more fair to the “disadvantaged” will be a major one of his priorities in 2015.

The businessman said that the criminal justice system needs reforms aimed at “making it fair and making [criminal] sentences more appropriate to the crime that has been committed.”

“Over the next year, we are going to be pushing the issues key to this, which need a lot of work in this country,” Koch told The Wichita Eagle in an interview published Saturday night. “And that would be freedom of speech, cronyism and how that relates to opportunities for the disadvantaged.”

Koch’s top lawyer noted that federal and state-level criminal justice policy has had an outsized impact on minority communities.

“It definitely appears to have a racial angle, intended or not,” said Mark Holden, Koch’s chief counsel.

In addition to sentencing reform, Holden mentioned winning voting rights for nonviolent felons and making it easier to expunge criminal records of minors as areas in need of attention.

Holden and Koch did not say what form the advocacy efforts would take. Koch and his brother David are prominent donors to individual candidates and super-PACs, but also back major conservative think tanks.

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The U.S. has the largest prison population in the world. The growth in incarceration was fueled in part by “tough on crime” rhetoric that for decades defined the way politicians approached criminal justice.

But Koch’s comments reflect a growing consensus within some sections of the right that the criminal justice system’s is too harsh on some types of offenders — particularly individuals convicted of nonviolent drug crimes.

One of those Koch brothers backed think tanks is the American Legislative Exchange Council (ALEC), whose model legislation for prison privatization for profit has played a large role in incarcerating Americans for profit. It is not clear from the reporting how the Koch brothers intend to address the ALEC model legislation for prison privatization for profit. Arizona GOP legislators, many of whom are members of ALEC, have been cheerleaders for prison privatization for profit.

In addition to GOP legislators in thrall to ALEC, there are Arizona County Prosecutors who are opposed to sentencing reforms. Earlier this month they released a report viewed by many as a peremptory strike on sentencing reform legislation to reduce Arizona’s prison population. Howard Fischer reported, With budget deficit looming, report shows need for state prisons:

Hoping to knock down any talk of sentencing reform, Arizona prosecutors released a report Friday seeking to debunk claims that some of the more than 41,000 people behind bars here really don’t belong there.

The study done for the Arizona Prosecuting Attorneys Advisory Council claims the percentage of inmates doing time for violent crimes went from 65.4 percent of the prison population in September 2009 to 70.7 percent this past August. And Daryl Fischer, a research statistician who used to work for the Department of Corrections, says when repeat offenders are added to the mix, that brings the total to 95 percent of those who are incarcerated.

Fischer’s data did find that the percentage of first-time offenders in Arizona prisons also increased slightly.

But prosecutors said the report proves points they have been trying to make for years.

“This data, which tracks prison population since 1971, once again dispels the myth that Arizona’s prisons are laden with low-level offenders,’’ Yavapai County Attorney Sheila Polk said in a written statement.

The report and its conclusions drew fire from Dave Euchner, a deputy Pima County public defender. He questioned the whole classification.

“This 95 percent include every repeat drug offender who is no longer eligible for mandatory probation because of a powerful drug habit,’’ said Eucher who also is president of Arizona Attorneys for Criminal Justice, an association of criminal defense lawyers.

But Euchner said the problems in the report go beyond that to the issue of what is a “violent’’ offense. He said the report includes not just murder and aggravated assault “but possession of a gun by a prohibited possessor and other offenses that the general public may not consider violent.’’

Euchner said releasing the report just a month before lawmakers convene is an effort by prosecutors to undermine any discussion of reforming the state’s mandatory sentencing laws.

MacEachern acknowledged the point.

She said prosecutors are quite aware lawmakers return next month to deal with a $500 million deficit this current fiscal year and $1 billion in red ink next year. That could force lawmakers to find ways to cut spending.

“The biggest area that there is to look at is corrections,’’ MacEachern said, what with the agency having a budget this year in excess of $1 billion.

“That seems to be a place that people are talking about changing the sentencing programs,’’ she continued. And that discussion, MacEachern said, includes mandatory sentencing guidelines.

These require judges to impose certain minimum prison terms on those accused of certain crimes or who have prior criminal history. MacEachern said prosecutors support these limits on judges to ensure some consistency of sentences among various courts and various counties.

The report was also criticized by Carolyn Isaacs  of the American Friends Service Committee, a Quaker organization that ministers to prisoners, Prosecutors ignore data, push dogma:

The Arizona Prosecuting Attorneys Advisory Council has released the latest version of its report on prisoners in Arizona, which makes the shocking assertion that “the vast majority of current inmates are violent or repeat offenders.”

The council and others have used the data to make the assertion that “the system continues to incarcerate the right people for the right reasons.” It is an attempt to scuttle important discussions about reforming criminal sentences in Arizona.

There are numerous and important questions about the methodology employed, and the conclusions the prosecutors have drawn:

— The most serious problem with the report is the conflation of “repeat” and “violent” offenders — two categories that reflect very different classes of criminal. This configuration is misleading.

Just over 50 percent of individuals are incarcerated for a violent offense, according to an October report from the Arizona Department of Corrections. And 51.4 percent are serving their first prison term.

Drug addicts, alcoholics, and people with mental illnesses often commit multiple offenses due to their inability to control their behavior. This does not mean they belong in prison.

— The council’s report artificially inflates the number of people it classifies as “dangerous, violent or sexual offenders” by including prior convictions and offense types that are not considered dangerous or violent under state statutes or FBI definitions. The report even counts offenses the individual committed as a juvenile as “priors,” contrary to common judicial practice.

Perhaps the most dubious claim in the report is that Arizona’s truth-in-sentencing law (and the resulting high incarceration rate) is responsible for the recent drop in crime. Yet, the data clearly demonstrate that crime rates increased and decreased both before and after introduction of truth-in-sentencing. Many other states have deliberately reduced their prison populations through sentencing reforms and seen an even greater drop in crime rates.

However, the prosecutor council’s data — not its ultimate conclusions — provide an opportunity for Arizona policy makers to re-examine Arizona’s sentencing scheme with an eye toward evidence-based options that reduce costly incarceration rates while improving public safety.

The report states that nearly one out of three prisoners are non-violent offenders. Department of Corrections data show that over 20 percent of prisoners are held on drug charges, the single largest category of offender in our prison system. Indeed, the original prosecutor council’s report identifies some 2,000 people that comprise a low-risk target population for early release.

As the new Legislature prepares for a contentious session, confronted with a significant budget deficit, it is unfortunate that Arizona’s prosecutors are not taking a cue from their counterparts in the rest of the country, who have embraced evidence-based alternative sentencing practices to safely reduce prison populations. These states have saved millions of dollars, and several have seen more significant declines in crime rates than Arizona.

With our corrections budget over $1 billion, eating up 11 percent of the state’s general fund, it is clear that the system we have is unsustainable. All actors and stakeholders in these policy discussions must reject the outdated and counterproductive “tough on crime” stance and instead work together to pursue policies that truly make us safer.

Arizona faces a $1.52 billion budget deficit over the next two years, yet the Department of Corrections is asking for permission to build more prisons. Even the “tough on crime” editors of The Arizona Republic rejected this out of hand. More Arizona prisons? No, no, no.

The left and right are coming together on sentencing reforms. It is those who profit from the current system that stand in the way of sentencing reforms.


  1. I agree that right and left are coming together on this issue. Our prisons should be reserved for violent criminals or property criminals whose crimes are egregious in nature. Dope users, petty thieves, minor white collar crimes should be handled in a different manner than incarceration. Of course there will always be those petty criminals who keep on offending which may need to be incarcerated at some point, but the majority will learn with a single brush with the law. That should also include pre-trial confinement when excessively high bonds keep people of lesser means in jail for long periods waiting for a trial. If the crime is minor, they should receive reasonable bonds or ROR’d.

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