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History > 2013 > USA > Justice > Jail, prison (I)



A Small Step Toward More Mercy


December 22, 2013
The New York Times


President Obama’s decision on Thursday to commute the outrageously long drug sentences of eight men and women showed a measure of compassion and common sense. But it also served to highlight the injustice being done to thousands of prisoners under federal sentencing laws.

In issuing the commutations, Mr. Obama blamed the “unfair system” that is keeping thousands behind bars solely because they were sentenced before August 2010, when Congress reduced the vast disparity between the way federal courts punish crack cocaine and powder cocaine offenses. The three-year-old federal law, the Fair Sentencing Act, allows prisoners to petition a judge to shorten their sentence, but it does not apply to nearly 9,000 prisoners who were already serving time when it was passed. While Congress is considering legislation to make the law retroactive, any such fix is far from assured.

In addition, thousands more federal drug prisoners are serving unjust sentences for other reasons, including mandatory minimums that punish anyone connected to a sales or trafficking operation based on the overall weight of the drugs, regardless of how minor a role that person played. For many of these people — including Clarence Aaron, who received three life sentences for a first-time, nonviolent drug deal, which Mr. Obama commuted — there is no prospect of helpful legislation on the horizon. Their only hope is executive clemency.

It is important to recognize that while Mr. Obama showed mercy to these eight people, his administration has been the least merciful in modern times. The power to mitigate an overly harsh sentence is squarely in his hands, and yet in nearly five years he has commuted just nine sentences and issued 52 pardons. (A commutation lessens the severity of a punishment, while a pardon forgives the offense itself and restores the rights people lose when they go to prison.)

There is no excuse for this lack of compassion. The risk to public safety is often used to justify denials of clemency, but a preliminary report issued in July by the United States Sentencing Commission found that the recidivism rates for the more than 7,300 prisoners who received sentence reductions under the Fair Sentencing Act were similar to those for inmates who served full sentences.

There is now fairly widespread agreement that federal drug laws are far too harsh and inflexible, and that their burden falls most heavily upon the poor and racial minorities. Given so many cases of injustice, why was Mr. Obama able to identify only a handful of people worthy of clemency? Part of the fault lies with the pardon office, which has been ineffective in doing its job in processing clemency requests. Last week’s commutations were the result of a request Mr. Obama made a year ago to have the Justice Department review pending clemency petitions. Clemency, however, is not the solution to all of the irrationality and harshness of America’s sentencing laws.

Mr. Obama did not create the broken criminal justice system, but he can do much more to lessen its impact on those who have been most unfairly punished by it.

    A Small Step Toward More Mercy, NYT, 22.12.2013,






A Dealer Serving Life

Without Having Taken One


December 21, 2013
The New York Times


GREENVILLE, Ill. — A lifer with a pen sat in the 65-square-foot cell he shares. A calendar taunted from a bulletin board. He began to write.

Dear President Obama.

He acknowledged his criminal past. He expressed remorse. And he pleaded for a second chance, now that he had served 18 years of the worst sentence short of execution: life without parole, for a nonviolent first offense.

Mr. President, he wrote, “you are my final hope.”

Sincerely, Jesse Webster.

Eleven hundred men reside in medium security at this remote Greenville federal prison in Southern Illinois. Most come and go, sentences served. Others stay, their legal appeals exhausted, their only hope to take up a pen and enter the long-shot lottery of executive clemency with a salutation that begins: Dear President Obama.

The prisoners are men like Mr. Webster, 46, a former cocaine dealer from the South Side of Chicago. And his old cellmate, Reynolds Wintersmith Jr., 39, a former teenage crack-cocaine dealer from Rockford, Ill., who has spent half his life in prison.

The two friends first met at the maximum-security prison in Leavenworth, Kan. That was almost 15 years ago.

“We were both younger then,” Mr. Webster recalled.

Mr. Webster, bald, stocky and bespectacled, discussed his case several days ago in the spare visitors’ room at Greenville. Signs everywhere said “no” this and “no” that. Nearby stood an artificial Christmas tree used by families as a prop to feign normality in holiday photos.

“I should have done time,” Mr. Webster said. “But a living death sentence?”

Growing up, his family of seven barely survived on his stepfather’s job as a parking-lot attendant. Dropping out of ninth grade to make money for the household, he wound up buffing at a carwash favored by a big-tipping drug dealer. Seeing hustle in 16-year-old Jesse’s eyes, he offered the boy a job as his driver, $200 a week.

Mr. Webster never forgot what his friends had said and how they said it: “that I had moved up in low places.”

He became a low-key freelancer in a hooked-up world, living in a doorman building, driving a Volvo and concealing a gun he never used. “I didn’t do flash,” he said.

In 1995, though, he learned that the law was looking for him, so he decided to turn himself in. One day a station wagon left the South Side for the North Side, jammed with his mother, brother and others who wanted to be there in support. “We all went as a family,” his mother, Robin Noble, said.

Soon Mr. Webster was being cuffed from behind, an indelible moment. “The look on his face,” Leon Noble, his younger brother, said. “Like he let us down.”

Prosecutors offered leniency on the condition that Mr. Webster become a confidential informant against a powerful drug gang. He declined, which Matthew Crowl, a prosecutor in his case, described many years later as a reasonable decision, given that the gang had already killed an informant.

Mr. Webster was convicted of participating in a drug conspiracy and filing false tax returns. His sentence of life without parole left his mother weeping and his brother’s heart dropping to the floor. For a sentence like that, the inmate said, “I thought I’d have to hurt somebody, do bodily harm.”

The federal judge, James B. Zagel, explained to the court that he was adhering to the mandatorily harsh sentencing guidelines of the day. “To put it in simple terms,” the judge said before imposing sentence, “it’s too high.”

If it were 1986 or today, Mr. Webster would probably be sentenced to serve about 25 years. But he was sentenced in 1996, during a period when sentencing guidelines gave federal judges virtually no discretion in assessing punishment.

“That was at the peak of mandatory sentencing,” said Vanita Gupta, the deputy legal director for the American Civil Liberties Union.

The A.C.L.U. — which highlighted the cases of Mr. Webster and Mr. Wintersmith, among dozens of others, in a recent report on lifers — estimates that more than 2,000 federal inmates are serving life without parole for nonviolent offenses.

What’s more, in a sample study of 169 federal inmates incarcerated for nonviolent crimes, the organization found dozens who were first-time offenders, as well as many others who had only misdemeanors and juvenile infractions in their past.

And this was just in the federal prison system.

“We kind of lost our moral center and any sense of proportionality in our sentencing” during the so-called war on drugs, Ms. Gupta said. “The result was the throwing away of certain people’s lives, predominantly black and brown people’s lives.”

Mr. Webster spent 16 years in federal maximum-security prisons, including Leavenworth, willing himself past the temptations, the lockdowns, the nearly hopeless reality. He received only three infractions — all minor, with the last one in 1997 — and earned the trusted position of captain’s orderly.

In July 2011, finally, he won a transfer to relative tranquillity, here in Greenville. “Took me 17 years to get here,” he said.

Up at 6:30. Bowl of oatmeal. Stretch. Clean cell. Work as a unit orderly. Run three miles. Push-ups and pull-ups. Shower. Lunch. Volunteer as a tutor to other inmates. Stand for count. Dinner. Work on job skills and resume writing. Shower. Read the Bible. And call Mom, whose picture he keeps tucked into his bottom bunk’s ceiling.

Family members say Mr. Webster lifts spirits on the outside when he calls from the inside, urging improvement, strength. Mr. Noble, for example, considers his older brother to be his role model.

All the while, Mr. Webster knows that the associates who testified against him have been free for years; that his mother is ill; that his daughter, Jasmine, who was 4 when he went away, has given him a grandson he has seen only once. That barring the secular equivalent of divine intervention, he will die in prison khaki.

A few months ago, Mr. Webster’s lawyer, Jessica Ring Amunson, sent a thick packet of documents to the Office of the Pardon Attorney of the Justice Department. This office assists the president in exercising his power of executive clemency, including pardons and the commutations of sentences.

In these papers were Mr. Webster’s life, the bad and the good. The particulars of his case, his achievements as an inmate, and many, many letters requesting a commutation of Mr. Webster’s sentence, all effectively beginning with: Dear Mr. President. They even included appeals for clemency from the prosecutors and the judge in his case.

“A commutation of sentence which would result in his service of 20 or so years in prison is enough punishment for his crimes,” Judge Zagel wrote.

The packet also included Mr. Webster’s letter, which had undergone several drafts as he sought concision in conveying to the president the essence of who Jesse Webster was, and is. “I didn’t want a lot of mumbo jumbo,” he says. “I know he’s a busy man.”

The odds never favored Mr. Webster, though, at least not this round. Nearly 2,800 other requests for commutation of sentence were pending — including one from his friend Mr. Wintersmith — and before last week, Mr. Obama had commuted the sentence of just one inmate.

Turkeys at Thanksgiving had a better chance at mercy.

“But you’ve got to keep up the hope,” Mr. Webster said, shrugging, before leaving the visitors’ room.

On Thursday, President Obama increased his number of commutations by eight (while also pardoning 13 others). He described his action as “an important step toward restoring fundamental ideals of justice and fairness,” and called on Congress to come up with further sentencing reforms.

That morning, some inmates were gathered in the Greenville prison gymnasium, including Mr. Webster and Mr. Wintersmith. A voice came over the intercom, summoning Mr. Wintersmith to the associate warden’s office.

Mr. Webster instantly knew what had happened, and what had not. He later said he was overjoyed for his friend, and hopeful that the president would remember the many, many others, and “spread his grace on us.”

    A Dealer Serving Life Without Having Taken One, NYT, 21.12.2013,






Inmates Helping Inmates


December 18, 2013
The New York Times


MILWAUKEE — IT’S the singular guest at a prison who receives a standing ovation from inmates. I’ve heard of only two: Johnny Cash and Percy Pitzer, a retired warden who in 2012 started a nonprofit corporation to award college scholarships to children of inmates.

I sit on the board of Mr. Pitzer’s group, called the Creative Corrections Education Foundation. I recently went with him to visit some of the inmates at the Milwaukee County House of Correction. It was morning and many were still on their thin mattresses — sleeping, reading, crocheting, playing cards — as he began a day of speeches.

He started in H6, a 60-bed women’s dorm. “Good morning, ladies. I’m Percy Pitzer, from Beaumont, Texas,” he began. He told them that he had made a living for his family by working for the Bureau of Prisons, and that he and his wife wanted to give back. So he’d kick-started a scholarship fund with $150,000 of his own money. But he wanted it to become an inmate-funded venture, and said it would not work without their help.

“Will you help me with the price of a candy bar a month?” he asked.

His audience probably had a sense of the odds working against their children. Close to seven million children in the United States have a parent involved in some form of correctional intervention — jail, prison, probation or parole. More than two million have parents behind bars. The impact is largely focused on minority communities. Families of inmates are left with very little on which to survive, and so the cycle of poverty and crime goes unbroken. According to the American Correctional Association, up to 50 percent of incarcerated juveniles have an incarcerated parent.

Like anyone, these parents want something better for their kids. The inmates in Milwaukee proved that when they were asked to contribute to the education of other people’s children.

“I will,” one inmate said.

“I will,” said another.

“I will.”

Strolling up and down the aisles of steel bunk beds, Mr. Pitzer handed a form to anyone interested, to fill in her name, booking number, dorm/bed number, the date and the amount she agreed to have taken out of her personally funded commissary account. In all, 13 women in H6 donated $41; one signed up to donate $5 per month.

This is a lot of money for most inmates at the Milwaukee County House of Correction. There, the prisoners — 80 percent of whom are below the poverty level — are not paid for their work mopping halls, cutting grass and performing the many menial tasks that keep the facility operating. At some correctional facilities, inmates earn $10 a day. Either way, this is money that would otherwise go to small luxuries, like snacks and deodorant.

And yet about 300 inmates in Texas, New Mexico, Ohio and Wisconsin have donated. Thanks to that money, in addition to private contributions, by the end of this year Creative Corrections will have awarded 40 $1,000 college scholarships. If just 25 percent of the nation’s 2.4 million inmates donated one dollar a month, the foundation could award $7.2 million annually in scholarships.

(Scholarship recipients must have a parent or legal guardian who is currently incarcerated, on parole or under community supervision. And the funds are transferred directly to the bursar’s office of a college or university, which must be accredited.)

Before he left H6, Mr. Pitzer thanked the women, and they thanked him:

“Thank you for taking the time to come down.”

“Where can my child find information about this?”

“When I get out, can I volunteer for you?”

Then, accompanied by two guards, he walked down the cinder-block hallways to B6, where one male inmate donated 12 cents, another 37. So far, the inmate donations from that facility total $866, with $75.48 pledged monthly. Next year, Mr. Pitzer will step up the pace, petitioning former corrections colleagues to allow him to visit, and persuading colleges and universities to partner with him.

Education will not solve our many social ills, but it is one of the best ways to keep future generations out of the criminal justice system. The scholarship plan is built on this, and the perhaps surprising fact that many inmates want to be part of the solution.

Our system of mass incarceration is a tragedy. But what is even sadder is when we equate imprisonment with being adrift from society’s challenges. Just because people are in prison does not mean they are incapable of doing good and supporting their families and communities. Perhaps the greatest benefit of Mr. Pitzer’s program is that it lets prisoners prove that they want to and can make meaningful contributions to society.


Stan Stojkovic is the dean of the school of social welfare

at the University of Wisconsin, Milwaukee.

    Inmates Helping Inmates, NYT, 18.12.2013,






Writing Off Lives


September 29, 2013
The New York Times


The prison population in the United States has declined modestly in recent years after three decades of growth. This is partly the result of saner sentencing policies for nonviolent drug offenders, who are more likely to be given probation and drug treatment than in the past.

At the same time, however, the number of people in prison for life has more than quadrupled since 1984 and continues to grow at a startling pace. The zealous pursuit of these sentences began in the 1970s, becoming something of a fad; it is past time to revisit the practice.

A new study from the Sentencing Project, a research group, found that one in nine inmates, about 160,000 people, is serving a life sentence. Nearly one-third of these prisoners are serving life without parole. Many of these lifers were convicted of nonviolent crimes or of crimes that occurred before they turned 18.

For much of the 20th century, a sentence as harsh as life without parole was rarely used. Instead, a person sentenced to “life” — for murder, say — could be released after 15 years when the parole board determined that he or she had been rehabilitated and no longer posed a threat. This began to change during the drug war years. Harsher sentences once reserved for people convicted of capital crimes were expanded to include robbery, assault and nonviolent drug offenses. States restricted the use of parole and governors who feared being portrayed as soft on crime began to deny virtually all clemency requests.

Research shows lengthy sentences do nothing to improve public safety. But these long sentences are turning prisons into geriatric centers where the cost of care is prohibitively high. The practice of routinely locking up people forever — especially young people — also ignores the potential for rehabilitation. The whole trend is deeply counterproductive. States need to encourage more rational sentencing, restore the use of executive clemency and bring parole back into the corrections process.

    Writing Off Lives, NYT, 29.9.2013,






Citing Family for Furlough From Jail


September 22, 2013
The New York Times


They were in jail on charges of murder, robbery, extortion and, of course, racketeering, but the inmates, accused of being members of La Cosa Nostra, wanted out. At least for a little while.

These mob suspects have pleaded with judges in Federal District Court in Brooklyn for furloughs from jail to attend weddings, funerals and all manner of family activities.

The requests, which have been coming for years now, underscore what Marlon Brando’s character in “The Godfather” said of the importance of family: “A man who doesn’t spend time with his family can never be a real man.”

But a family affair is seldom just a family affair when it comes to the Mafia, so judges and federal marshals tend to meet the requests with skepticism, if not swift denials.

“I always tell them no,” said Judge Sterling Johnson Jr., who has presided over cases involving all five New York crime families and has heard a few pleas.

In one recent example, Joseph Sclafani, who is believed to be a member of the Gambino crime family and is facing 15 years in prison for cocaine trafficking, asked a judge last month for emergency leave from jail to visit his ailing father, who he said was suffering from incurable liver cancer.

Prosecutors objected, writing in a letter to the judge, John Gleeson, that Mr. Sclafani’s furlough was really directed toward more romantic pursuits, and he had hardly worked to hide his true motives.

“The government notes that the defendant’s temporary release from custody has been a prominent story line on the television show ‘Mob Wives,’ ” prosecutors wrote, adding that Mr. Sclafani had become engaged to one of the show’s cast members, Ramona Rizzo, while he was in jail. “Recent episodes center around whether the defendant will be released from custody for a short period of time so that he can attend his wedding.”

Judge Gleeson, who helped convict the Gambino boss John J. Gotti when he was a prosecutor, responded in an order, “The court has no interest in the extent to which ‘Mob Wives’ bears on this case.” He denied Mr. Sclafani leave, but ruled that he could have longer visits in jail or at the courthouse to spend time with his father.

Other cases are no less colorful. During the 2011 murder and racketeering trial of Thomas Gioeli, the former street boss of the Colombo crime family, Mr. Gioeli asked a judge for leave to attend his father’s wake and funeral in Farmingdale, on Long Island. But the United States Marshals Service, which transports inmates, deemed that too risky.

So they cleared a plan for Mr. Gioeli to have a private viewing of his father’s body on the loading dock of the federal courthouse in Central Islip (the site of previous makeshift wakes for mobsters).

Mr. Gioeli turned down the offer.

“He didn’t want his last memory of his father to be under those circumstances,” said Mr. Gioeli’s lawyer, Adam D. Perlmutter.

Mr. Gioeli requested a second furlough a few months later, this time to walk his daughter down the aisle. He offered to provide the government a complete copy of the guest list, pay for private security of the government’s choice, and put up the family home as collateral.

Prosecutors argued that weddings have long been viewed by members of organized crime as opportunities to gather crews, discuss criminal activity, pass messages and make tribute payments. The judge, Brian M. Cogan, denied the request. Mr. Gioeli was convicted in 2012 on racketeering charges, including conspiracy to commit murder.

Federal regulations allow pretrial inmates to petition judges for special releases. Acceptable justifications include visiting a relative who is dying, going to a funeral and “establishing or re-establishing family or community ties,” a catchall that could cover just about anything. The final decision rests with the judge, but prosecutors always weigh in.

Joseph Petillo, an associate of the Colombo crime family who was convicted of making illegal loans, was given a special release two years ago so that he could care for his sick mother. Dennis DeLucia, a Colombo captain who was sentenced this year to 34 months for extortion, received one to attend his daughter’s wedding last year.

Charles Dunne, the chief marshal of the Eastern District of New York, said that furloughs are rare and that the defendants must often cover the costs of their release.

“We don’t want to have to pay to transport you to this wedding and guard you,” Mr. Dunne said. “You’re going to have to pay for that.”

Anyone can make a request, not just mobsters. Ephraim Savitt, a lawyer with an active practice in Brooklyn federal court, recalled requesting furloughs so that his clients could observe Rosh Hashana and attend a son’s bar mitzvah. But most examples from the last several years involve suspects believed to be wiseguys.

“Nobody except well-off, successful mobsters can do it,” said Peter Kirchheimer, who represents indigent clients as the lawyer in charge of federal public defenders in Brooklyn.

Patrick Romanello, alleged to be an associate of the Bonanno crime family, was perhaps the luckiest. In 2004, Judge Nicholas G. Garaufis released Mr. Romanello, who was later convicted of joining a murder conspiracy, for 48 hours to attend his daughter’s wedding and celebrate with his family. Mr. Romanello footed the bill for security.

A year later, when it was time for another of Mr. Romanello’s daughters to get married, Judge Garaufis again agreed to a furlough, but he cut the duration to 17 hours, allowing Mr. Romanello to rent a tuxedo and go to the barber but not visit the tanning salon.

Judge Garaufis asked Mr. Romanello if he had more daughters. The answer was yes, he had one more, but she was only 7.

    Citing Family for Furlough From Jail, NYT, 22.9.2013,






Inmates End Hunger Strike in California


September 5, 2013
The New York Times


LOS ANGELES — Inmates at California state prisons have ended a two-month hunger strike, corrections officials and inmate advocates announced on Thursday.

The strike was organized to protest the state’s use of solitary confinement, in which some inmates have been held for years or even decades. It was the third hunger strike in California state prisons since 2011.

At its peak in July, 30,000 inmates across two-thirds of the state’s 33 prisons were refusing meals. That number had dwindled to about 100 this week, according to prison officials.

“We are pleased this dangerous strike has been called off before any inmates became seriously ill,” Jeffrey Beard, secretary of the California Department of Corrections and Rehabilitation, said in a written statement. He added that the department would “continue to implement the substantive reforms” that began after hunger strikes two years ago.

In a statement, the organizers of the protest, who are being held in isolation units at Pelican Bay State Prison, said that most of their demands had not been met, and that they would continue to fight for changes.

“From our perspective, we’ve gained a lot of positive ground towards achieving our goals,” the statement said. “However, there’s still much to be done. Our resistance will continue to build and grow until we have won our human rights.”

Protest organizers voted on Wednesday to end the hunger strike just days after two state lawmakers pledged to hold public hearings on the conditions in the state’s maximum-security prisons and the use of long-term isolation. The hearings are expected to begin in October.

“They felt really buoyed by that; they felt they had friends in our government,” said Anne Weills, a lawyer representing some of the strike leaders.

For weeks, prison officials had refused to negotiate with the protesters, Ms. Weills said. But in a conference call with strike leaders this week, she said, corrections department officials promised to meet with them this month to discuss their demands.

    Inmates End Hunger Strike in California, NYT, 5.9.2013,






Man Who Held Ohio Women Captive

Is Found Dead


September 4, 2013
The New York Times


Ariel Castro, the Cleveland man sentenced last month to life in prison for holding three women captive in his home for a decade, was found hanging in his prison cell on Tuesday night after apparently hanging himself, officials said. He was later declared dead at the hospital.

Mr. Castro, 53, was found hanging in his cell at the Correctional Reception Center in Orient, Ohio, at 9:20 p.m., JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction, said in an e-mailed statement. Mr. Castro was housed in a cell by himself and a guard was required to check on him every 30 minutes at staggered intervals, the statement said. He was transported to Ohio State University Wexner Medical Center where he was pronounced dead.

It was a shocking development in a story that has held the country transfixed since May, when neighbors discovered the women in Mr. Castro’s Cleveland home after hearing the screams of one of them and broke through the front door.

Mr. Castro later pleaded guilty to 937 counts including rape and kidnapping.

It was not immediately clear how Mr. Castro was able to hang himself. The Ohio Department of Corrections statement said a review of the incident was under way.

All three women were kidnapped between 2002 and 2004. All were kidnapped in the vicinity of Mr. Castro’s home at 2207 Seymour Avenue, and all were acquaintances of Mr. Castro’s children.

Each victim vanished seemingly without a trace. Then, in May, one of the women, Amanda Berry, who had not been seen since she left her job at a local Burger King on April 21, 2003, suddenly appeared at the front door of the house along with a young child and screamed: “I need help! I need help! I have been kidnapped for 10 years!”

Several neighbors came to her aid, kicking in the front door and calling 911. When police arrived they discovered two other women: Gina DeJesus, who disappeared while walking home from a city middle school in 2004, and Michelle Knight, who vanished at age 20 in 2002.

All three had been sexually abused and confined to what was essentially a torture chamber. The women were confined to two rooms on the second floor. Mr. Castro had sealed the windows and covered them with thick curtains. He fed them one meal a day and forced them to use plastic toilets in their rooms, the authorities said. Sometimes they were chained.

Mr. Castro fathered at least one child with his victims. A six-year-old girl, born to Ms. Berry, was rescued along with her.

All this went on while Mr. Castro lived a life that to friends, family and even his own children appeared normal. He was friendly with neighbors and played bass with several Latin bands. He would even attend vigils for the missing girls.

At his sentencing on Aug. 1, Mr. Castro denied that he had been violent or had sexually abused the women. He claimed that whatever sex went on in the house was consensual. He said that he was not evil or violent, but that he was a victim of sexual abuse as a child and had become addicted to pornography.

“People are trying to portray me as a monster and I’m not a monster, I’m just sick,” he said.

    Man Who Held Ohio Women Captive Is Found Dead, NYT, 4.9.2013,






How to Really End Mass Incarceration


August 14, 2013
The New York Times


WASHINGTON — IN 2003, I represented dozens of African-American residents in Tulia, Tex., who had been convicted after a botched drug sting. Jason Jerome Williams, a 22-year-old with no prior criminal record, had been sentenced to 45 years in prison for four sales of an eighth of an ounce of cocaine. Freddie Brookins Jr., 25, had received 20 years for a first-time offense of selling less than four grams of cocaine. Joe Moore, a 56-year-old hog farmer, had gotten 90 years for two cocaine sales totaling under five grams. Others accepted plea deals to try to avoid such lengthy prison terms.

The convictions, in 1999 and 2000, were based on the flawed testimony of an undercover officer. The prosecution offered no physical evidence of marked bills, weapons, narcotics or drug paraphernalia — things you would expect to find in a sophisticated drug ring.

It took years of advocacy by many lawyers to win their release, but this hard-fought vindication was just a flash in the pan. Starting in the 1970s, a domestic “war on crime” dominated by antidrug policies and racial profiling fueled a prison-building binge that is morally — and now financially — bankrupt. Both political parties embraced draconian policies like mandatory minimum sentences, three-strikes laws and wide disparities in sentences for possession of crack versus powder cocaine. The result: by 2003, the United States had 4.6 percent of the world’s population but 22.4 percent of its prison population — even though violent crime started dropping in the 1990s. Prospects for reform looked bleak.

So I was elated when Attorney General Eric H. Holder Jr. announced on Monday that the government would commit to reducing the bloated prison population. This is without precedent: the nation’s top law enforcement official directed all federal prosecutors to exercise their discretion toward ending the relentless warehousing of inmates — the vast majority of whom are minorities — in federal prison for low-level drug crimes.

But the immediate impact will be very limited at best. First, federal inmates accounted for just 14 percent of the nation’s 1.6 million prisoners last year. Second, Mr. Holder has limited authority to enact permanent reforms without Congressional action. Third, it’s unclear how federal prosecutors will enforce his plan. To maximize its impact, the Justice Department needs to track implementation by the 93 United States attorneys around the country and hold them accountable for enforcing the policy.

For lasting national impact we need to look at the states, where most criminal defendants are sentenced. Over the past few years, a quiet revolution has been brewing in state capitals. Historically low crime rates and shrinking state coffers have led to a nascent consensus among lawmakers and advocates across the ideological spectrum that our addiction to incarceration is not sustainable, effective or humane. Republican governors in cash-strapped states have been among those leading the charge. States as varied as Texas, New York, Colorado and Michigan have passed reforms that have stabilized or significantly reduced prison populations without increasing crime.

What Mr. Holder has done is turn up the dial, lending his imprimatur to a growing sense of national urgency and moral necessity. The muted reaction to his announcement from ardent conservatives is a reflection of the shift in debate.

But this is no time to rest. Those who seek a fairer criminal justice system, unclouded by racial bias, must at a minimum demand that the government eliminate mandatory minimum sentences, which tie judges’ hands; rescind three-strikes laws, which often make no distinction between, say, armed assault and auto theft; amend “truth in sentencing” statutes, which prohibit early release for good behavior; and recalibrate drug policies, starting with decriminalization of marijuana possession and investment in substance-abuse prevention and treatment. Federal aid to state and local agencies, like the Edward Byrne Memorial Justice Assistance Grant and the Community Oriented Policing Services, must prioritize diversion and rehabilitation over arrest and incarceration.

I am not naïve about the challenge, or of the needs of crime victims. In 1992, as I was finishing high school, my 71-year-old paternal grandmother was murdered in a house robbery in Sahibabad, India. The killing remains unsolved, and the anguish it caused my family will never fade away. But in America, our criminal justice system has too often focused on vengeance and punishment (and racial suspicion) rather than on crime prevention, restitution for victims and the social and economic reintegration of released prisoners into our communities so that they do not turn to crime again.

The buildup of our prison-industrial complex was a bipartisan process that unfolded over decades, and digging ourselves out of this hole will require unlikely political alliances. (For instance, the American Civil Liberties Union is working on sentencing reform with Right on Crime, a conservative initiative, and the American Legislative Exchange Council, an organization whose stances on immigration, voting and other civil rights policies we are fighting tooth and nail.) And where there is a lack of political will, we need to bring litigation of the kind that drove down prison populations in California and New Jersey and organize to make our voices heard.

The work ahead is daunting, but Mr. Holder’s announcement holds out hope that we have crossed a threshold, that there is no longer any serious argument about whether there is a problem with criminal justice in America. It’s sad it took so long for this moment to arrive — and that the impetus has come as much from budget pressures as from concerns about justice — but we need to seize it.


Vanita Gupta is a deputy legal director

at the American Civil Liberties Union.

    How to Really End Mass Incarceration, NYT, 14.8.2013,






For Women, a Second Sentence


August 13, 2013
The New York Times


NINE years ago, I served 11 months at the Federal Correctional Institution in Danbury, Conn., for a decade-old nonviolent drug crime. Danbury is the sole women-only federal prison in the Northeast and is part of a complex that typically incarcerates low-security female offenders from Maine to Pennsylvania. The aging hulk of the facility dates from 1940 and has housed women for nearly 20 years.

In my short time there I was elbow to elbow with women of every age, race and religion. Our differences were myriad, but what we had in common was obvious — prison khakis, steel-toed shoes and an eight-digit inmate registration number. What was universally important to all of us were our lifelines to the outside world — our spouses and partners, our friends and family, and for many women, their children.

Because I know the prison so well, I was disturbed to learn that it was quietly planning to relocate most of its inmates.

Starting this month, the federal Bureau of Prisons will transfer the more than 1,000 women incarcerated in the main facility at Danbury to other prisons across the country to convert it to a men’s prison (the small satellite camp immediately adjacent, where I served my time, will still incarcerate approximately 210 women). The bureau says the plan will ease overcrowding in its men’s prisons.

This added geographic separation may as well be a second sentence for these women, who already have to make it through prison with limited visits from family, and for their children, who still need and want their moms. A mother’s incarceration has a devastating effect on her family, and experts say that maintaining contact with a parent in prison is critical to a child’s well-being. One in 28 children has a parent in prison today, and Danbury houses the mothers of at least 700 children.

The Bureau of Prisons, which is part of the Justice Department, plans to send most women from Danbury to a prison in Alabama, and possibly to other ones farther afield. For many families these new locations might as well be the moon. The prison system also does not ensure that the women return home successfully or even safely. When I was released from a Chicago prison in March 2005 — I had been sent there on a writ to testify in court and to serve the remainder of my sentence — I was given $28 and a Windbreaker. I was unusually fortunate that my fiancé was able to come there to take me home to New York.

Despite distance, razor-wire fences and prison walls, many families of inmates fight to stay intact. The visiting room at Danbury was always filled with children doing their best to navigate their mother’s sentences with grace and dignity, even though the trek there could easily be eight hours each way for families with very limited resources. I watched one woman’s daughter grow from a cuddly baby to an adventurous toddler in weekly increments; the woman, a married mother of three, was there for a property crime, and her husband and children came every week for a few hours of invaluable family time. The setting was far from ideal, but anyone could see that every second was precious to her.

Arduous and costly as they could be, these visits were a necessity: they kept families connected to their incarcerated mothers, sisters, wives, daughters and fiancées, and kept prisoners connected to the outside world — one of the most important factors in determining whether they would return home successfully and go on to lead law-abiding lives. For this reason, 11 United States senators from the Northeast on Aug. 2 urged the Bureau of Prisons to reverse its decision on Danbury, saying that it was crucial to keep inmates close to home.

There is an alternative to moving prisoners far from their families. This past spring, an ambitious new program, JusticeHome, was started by the Women’s Prison Association in New York City, on whose board I serve. It aims to do the opposite of what the bureau plans: It will allow some women who plead guilty to felonies to remain in their homes with their children. The women will report regularly to court and will be visited several times weekly by case managers to make sure they receive supervision and guidance about jobs, education, their homes and children. The cost of JusticeHome, which is being paid by the city, will be about $15,000 per woman, far less than it would cost to incarcerate her for one year.

Harshly punitive drug laws and diminishing community mental health resources have landed many women in prison who simply do not belong there, often for shockingly long sentences. What is priceless about JusticeHome, however, is that it is working not only to rehabilitate women but to keep families together — which we know is an effective way to reduce crime and to stop a cycle that can condemn entire families to the penal system.


Piper Kerman is the author of the memoir

“Orange Is the New Black,” the basis of the Netflix series

of the same name.

    For Women, a Second Sentence, NYT, 13.8.2013,






California’s Continuing Prison Crisis


August 10, 2013
The New York Times


California has long been held up as the land of innovation and fresh starts, but on criminal justice and incarceration, the Golden State remains stubbornly behind the curve.

Over the past quarter-century, multiple lawsuits have challenged California’s state prisons as dangerously overcrowded. In 2011, the United States Supreme Court found that the overcrowding had gotten so bad — close to double the prisons’ designed capacity — that inmates’ health and safety were unconstitutionally compromised. The court ordered the state to reduce its prison population by tens of thousands of inmates, to 110,000, or to 137.5 percent of capacity.

In January, the number of inmates was down to about 120,000, and Gov. Jerry Brown declared that “the prison emergency is over in California.” He implored the Supreme Court to delay a federal court order to release nearly 10,000 more inmates. On Aug. 2, the court said no. Over the furious dissent of Justice Antonin Scalia, who reiterated his warning two years ago of “the terrible things sure to happen as a consequence of this outrageous order,” six members of the court stood by its earlier ruling. California has to meet its goal by the end of 2013.

The state claims that releasing any more inmates would be a threat to public safety, as if the problem were too little prison space. In fact, California’s problem is not excessive crime, but excessive punishment.

This was obvious years before the Supreme Court weighed in. Since the mid-1970s, California’s prison population has grown by 750 percent, driven by sentencing laws based largely on fear, ignorance and vengeance. The state’s notorious three-strikes law, passed in 1994, is only the most well-known example. Because of it, 9,000 offenders are serving life in prison, including many whose “third strike” was a nonserious, nonviolent offense — in one case, attempting to steal a pair of work gloves from a Home Depot.

Californians have made clear that they no longer accept traditional justifications for extreme sentencing. Last November, voters overwhelmingly passed Proposition 36, which restricted the use of the three-strikes law for nonviolent offenses, even for current prisoners. It wasn’t just about saving money; exit polls showed that nearly three-quarters of those who supported the proposition said they felt the law was too harsh.

The measure has already resulted in the release of around 900 prisoners whose third strike was neither serious nor violent, and it could lead to the release of up to 2,500 more. A risk assessment by California’s corrections department suggests that these three-strikes inmates are among the least likely to re-offend. Preliminary research on those who have been released under Proposition 36 is bearing that out.

In addition, the state has begun to take steps to repair what former Gov. Arnold Schwarzenegger described as a prison system “collapsing under its own weight.” A two-year-old package of reforms, enacted into law and known as “realignment,” is changing the type of sentences prisoners receive, where they are housed and the sort of post-release supervision they get. While this has led to some important improvements, such as eliminating prison terms for technical parole violations, it does not adequately address many entrenched problems, like disproportionately long sentences, that add to prison overcrowding. (Nor does it deal with the widespread use of long-term solitary confinement, which has led hundreds of state prisoners to go on hunger strikes in recent months.)

If California wants to avoid another legal battle over its overcrowded prisons, there are two things it can do right away.

First, it should establish a sentencing commission to bring consistency, proportionality and data-based assessments to its laws. Twenty-one states, the District of Columbia and the federal government already have such commissions, and they make a difference. In Virginia and North Carolina, both of which had prison overcrowding, sentencing commissions helped focus scarce resources on housing the most violent offenders, limiting prison growth without jeopardizing public safety.

Criminal justice reform advocates have unsuccessfully pushed for such a commission in California. If the state is to get away from its irrational and complicated sentencing, it needs a commission, and it needs to insulate it as much as possible from the political actors who have contributed so much to the state’s current crisis.

Second, the state must do more to help released prisoners get the re-entry and rehabilitation services that already exist across California. Inmates are often released with no warning to friends or family, with no money, no means of transportation and no clothes other than the jumpsuits on their backs. It is no wonder a 2012 report showed that 47 percent of California prisoners returned to prison within a year of their release, a significantly higher rate than the national average.

People coming out of prison need many things, but the critical ones are safe housing, drug treatment and job opportunities. Theoretically, the $2 billion being spent over the first two years of realignment was to provide more resources toward such re-entry and rehabilitation programs; in reality, much of that money has gone to county jails, which have seen their own overcrowding only get worse as they have absorbed thousands of inmates from state prisons. So far, counties have allocated an average of just 12 percent of their realignment funds to re-entry programs.

California’s prison population is consistently among the largest in the country. While it presents an extreme case, its problems are representative of what is happening in prisons and jails in other states. If California would redirect its energy from battling the federal courts to making the needed long-term reforms, it could once again call itself a leader.

    California’s Continuing Prison Crisis, NYT, 10.8.2013,






Bad Prison Policy for Women


August 9, 2013
The New York Times


The decision by the Federal Bureau of Prisons to transfer more than 1,100 women from a federal prison in Danbury, Conn., to other locations, including a remote facility in Aliceville, Ala., was rightly denounced as bad policy when it became widely known earlier this summer.

Now, 11 senators from Northeastern states have sent a letter to the bureau’s director, Charles Samuels Jr., asking him to reconsider the plan to send prisoners to Aliceville. The senators, led by Chris Murphy of Connecticut and Kirsten Gillibrand of New York, argue that the transfers would make it difficult if not impossible for families to sustain the visits that make it more likely that inmates will re-enter society successfully once they complete their sentences. The move would leave the Northeastern corridor with no federal beds for female inmates.

Women make up only about 7 percent of the federal inmate population, but their numbers have grown in recent years, in part because of the war on drugs. Most women in federal prisons are there for nonviolent crimes like drug and property offenses. Many such inmates could be housed at community-based facilities that provide drug treatment, mental health care and other services.

The Danbury prison is within driving distance of Hartford, New York City and Boston, and is well suited to keeping inmates in touch with their families. By contrast, the senators’ letter says, the newly opened prison in Aliceville is more than 1,000 miles from these cities, and Aliceville has no airport, train or long-distance bus service. Erected in rural Alabama at a cost to taxpayers of $250 million, the facility is a throwback to the time when prison officials were more interested in warehousing inmates than in making it easier for them to maintain family ties. The prison bureau says that overcrowding made Aliceville necessary. But that is no excuse for wrenching these Danbury inmates out of reach of their families.

The senators have urged the bureau to gauge the impact of the proposed transfers. It should determine how many of the women have children under the age of 18 and how far this move would take them from their families. And it should explain what measures will be taken to help those transferred to Aliceville re-enter society when they are released.

    Bad Prison Policy for Women, NYT, 9.8.2013,






Justices Rule

California Must Free Some Inmates


August 2, 2013
The New York Times


LOS ANGELES — The United States Supreme Court on Friday rejected California’s attempt to stop the release of nearly 10,000 inmates from state prisons to relieve overcrowding, dealing a blow to Gov. Jerry Brown’s efforts to fight federal court orders to reduce the prison population.

The decision is the latest in a long line of federal rulings demanding that the state drastically reduce its prison population. In 2011, the Supreme Court ruled that the overcrowding created conditions that amounted to cruel and unusual punishment, with inmates unable to receive proper health care, and some inmates dying while under the care of the state.

Mr. Brown has spent several months arguing that the prisons have greatly improved, and that the state should no longer be subjected to federal oversight. State officials were appealing to the Supreme Court for a full review of an order from a three judge-panel of the Court of Appeals for the Ninth Circuit.

The justices were split 6 to 3, and Justice Samuel A. Alito said that he would grant a stay of release. Justice Antonin G. Scalia wrote a bitter dissent — calling the lower court’s order a “terrible injunction” — that was signed by Justice Clarence Thomas.

“California must now release upon the public nearly 10,000 inmates convicted of serious crimes,” Justice Scalia wrote. He said the population reduction mandate goes “beyond the power of the courts.”

The court’s ruling on Friday appeared to leave the governor with no choice but to reduce the prison population to 110,000, 137.5 percent of design capacity, by the end of this year, as the court ruled in its 5-to-4 decision in 2011.

Lawyers for the plaintiffs in the case, which has gone on for more than two decades, hailed the ruling as extraordinary and said it would compel the state to act or Mr. Brown could be held in contempt of court, as a lower court panel has threatened.

“Their hope to be rescued in the process is gone,” Michael Bien, a lawyer for the plaintiffs — the prisoners and their advocates — said of Mr. Brown and state corrections officials. “This was a Hail Mary pass to the end zone and the ball was dropped. We fully expect them to comply with the courts, and we will make sure they do so.”

Along with three former governors, Mr. Brown argued to the Supreme Court that the early release of thousands of prisoners would endanger the public with offenders who have “a history of serious or violent offenses who are very likely to commit more serious crimes, impacting already stretched law enforcement, social service, mental health and substance use treatment resources of counties.”

Justice Scalia wrote that the state had shown evidence it had “made meaningful progress” in serious overcrowding in its 33 prisons, and that additional releases were not necessary.

While it has protested doing so, the State Corrections Department has already begun preparing to expand some parole programs, and release inmates it deems have the lowest risk of committing new crimes. In court filings, the state said it could identify only 1,205 inmates who had less than a year left on sentences for nonviolent crimes. The current state plan calls for the release of nearly 4,200 additional prisoners, but the state could also increase the time taken off sentences for completing rehabilitation programs in prison.

For nearly two years, the state began requiring that county jails take in low-level felons and parole violators, which has reduced the state prison population by about 25,000. Mr. Brown has repeatedly argued that the change, along with other shifts in the state system, has resulted in constitutional care and conditions for the remaining 132,000 inmates.

State officials said Friday they planned to continue to press for a hearing for a full appeal from the Supreme Court “so that the merits of the case can be considered without delay,” but would move forward with a plan to comply with the lower court order.

It is unclear precisely how many prisoners will be released. The state could also move to put more prisoners in private out-of-state facilities or contract with county jails that have open beds.

The ruling comes as hundreds of prisoners continue a hunger strike to protest solitary confinement policies. State officials said 477 inmates in six prisons were participating on Friday, down from more than 30,000 when the strike began last month.

    Justices Rule California Must Free Some Inmates, NYT, 2.8.2013,






U.S. Prison Populations Decline,

Reflecting New Approach to Crime


July 25, 2013
The New York Times


The prison population in the United States dropped in 2012 for the third consecutive year, according to federal statistics released on Thursday, in what criminal justice experts said was the biggest decline in the nation’s recent history, signaling a shift away from an almost four-decade policy of mass imprisonment.

The number of inmates in state and federal prisons decreased by 1.7 percent, to an estimated 1,571,013 in 2012 from 1,598,783 in 2011, according to figures released by the Bureau of Justice Statistics, an arm of the Justice Department. Although the percentage decline appeared small, the fact that it followed decreases in 2011 and 2010 offers persuasive evidence of what some experts say is a “sea change” in America’s approach to criminal punishment.

“This is the beginning of the end of mass incarceration,” said Natasha Frost, associate dean of Northeastern University’s school of criminology and criminal justice.

About half the 2012 decline — 15,035 prisoners — occurred in California, which has decreased its prison population in response to a Supreme Court order to relieve prison overcrowding. But eight other states, including New York, Florida, Virginia and North Carolina, showed substantial decreases, of more than 1,000 inmates, and more than half the states reported some drop in the number of prisoners. (Figures for three states were estimated because they had not submitted data in time for the report.) The population of federal prisons increased slightly, but at a slower rate than in previous years, the report found.

Imprisonment rates in the United States have been on an upward march since the early 1970s. From 1978, when there were 307,276 inmates in state and federal prisons, the population increased annually, reaching a peak of 1,615,487 inmates in 2009.

But in recent years, tightened state budgets, plummeting crime rates, changes in sentencing laws and shifts in public opinion have combined to reverse the trend. Experts on prison policy said that the continuing decline appears to be more than a random fluctuation.

“A year or even two years is a blip and we shouldn’t jump to conclusions, but three years starts to look like a trend,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit research group based in Washington. But he said that the rate of inmates incarcerated in the United States continued to be “dramatically higher” than in other countries and that the changes so far were “relatively modest compared to the scale of the problem.”

Most observers agree that the recession has played a role in shrinking prison populations. In 2011 and 2012, at least 17 states closed or were considering closing prisons partly for budgetary reasons, representing a reduction of 28,525 beds, according to a report by the Sentencing Project published last year.

But Adam Gelb, director of the Pew Charitable Trusts’ public safety performance project, said that while fiscal concerns might have led to the turnaround in some states, the need to cut budgets had not been the deciding factor.

“They’re not simply pinching pennies,” Mr. Gelb said. “Policy makers are not holding their noses and saying we have to scale back prisons to save money. The states that are showing drops are states that are thinking about how they can apply research-based alternatives that work better and cost less.”

Changes in state and federal sentencing laws for lower-level offenses like those involving drugs have played a central role in the shift, he and others said, with many states setting up diversion programs for offenders as an alternative to prison. And some states have softened their policies on parole, no longer automatically sending people back to prison for parole violations.

But changing public attitudes are also a major driver behind the declining prison numbers. Dropping crime rates over the last 20 years have reduced public fears and diminished the interest of politicians in running tough-on-crime campaigns. And public polls consistently show that Americans are now more interested in spending money on education and health care than on building more prisons.

“People don’t care so much about crime, and it’s less of a political focus,” said Professor Frost, who is a co-author of a forthcoming book, “The Punishment Imperative.”

The result has been an unusual bipartisan effort to reduce the nation’s reliance on prisons, with groups like Right on Crime, devoted to what it calls the “conservative case for reform,” pushing for lower-cost and less punitive solutions than incarceration for nonviolent offenders.

Marc Levin, senior policy adviser for Right on Crime, described the change in conservatives’ position on parole violators: It used to be “Trail ’em, nail ’em and jail ’em,” he said, “but there’s been a move to say, ‘Yes, there’s a surveillance function, but we also want them to succeed.’ ”

Some of the most substantial prison reductions have taken place in conservative states like Texas, which reduced the number of inmates in its prisons by more than 5,000 in 2012. In 2007, when the state faced a lack of 17,000 beds for inmates, the State Legislature decided to change its approach to parole violations and provide drug treatment for nonviolent offenders instead of building more prisons.

In Arkansas, which reduced its prison population by just over 14,000 inmates in 2012, legislators in 2011 also passed a package of laws softening sentencing guidelines for low-level offenders and steering them to diversion programs.

“It’s a great example of a state that made some deliberate policy choices to say we can actually reduce recidivism and cut our prison group at the same time,” Mr. Gelb said.

Joan Petersilia, a law professor at Stanford and a co-director of the Stanford Criminal Justice Center, said in an interview last year that she thought Americans had “gotten the message that locking up a lot of people doesn’t necessarily bring public safety.” California’s example, she said, has also spurred other states to consider downsizing for fear of facing similar litigation.

But Professor Petersilia added that though the trend may have begun out of a need for belt-tightening, it had grown into a national effort to rethink who should go to prison and for how long.

“I don’t think in modern history we’ve seen anything like this,” she said.

    U.S. Prison Populations Decline, Reflecting New Approach to Crime,
    NYT, 25.7.2013,






Judge to Hear Accusations

Against Police by an Inmate


July 5, 2013
The New York Times


A Brooklyn man who has been in prison for 25 years for two murders he says he did not commit has been granted a hearing by a judge to review new evidence and to determine whether a detective had manufactured a confession.

Shabaka Shakur, 48, is serving two consecutive 20-years-to-life sentences for the January 1988 killings of two men with whom he had argued over car payments. Among the evidence used against him was an incriminating statement he was said to have given to a former Brooklyn North homicide detective, Louis Scarcella. Mr. Shakur has always denied making any such statement.

Mr. Shakur was featured in an article in The New York Times in May that documented troubling patterns in Mr. Scarcella’s work.

In his ruling, Justice Desmond Green of State Supreme Court in Brooklyn cited the article, noting that Mr. Shakur was quoted as saying that the detective had fabricated his confession and “ignored the evidence that shows I wasn’t the guy.”

Justice Green, who issued his ruling in June, expanded the scope of the hearing to include not just new witnesses, but also broader claims against Mr. Scarcella, a move Mr. Shakur’s defense lawyer called “extraordinary.” The judge will allow Mr. Shakur to readdress the issue of the confession he said was fabricated.

“You don’t get many of these,” the lawyer, Ronald L. Kuby, said. “Usually, standard practice is for the prosecutors to oppose the hearing and for judges to rubber-stamp that on technical grounds.”

The Brooklyn district attorney, Charles J. Hynes, ordered a review of convictions that resulted from Mr. Scarcella’s work after The Times revealed that the now-retired detective used the same crack-addicted prostitute as a witness in several murder cases.

Mr. Scarcella has denied the allegations and has said that anyone accusing him of misconduct “has no honor.”

A 12-member panel that includes several of Mr. Hynes’s friends will make recommendations on whether his office should seek to dismiss any convictions.

Mr. Shakur’s hearing is significant because it will force Mr. Hynes to conduct a public review of a conviction that the district attorney’s office has defended for more than 20 years, but which is now under review by the agency’s Conviction Integrity Unit. Hearings to determine whether an inmate should get a new trial generally include testimony by the investigating detective, something prosecutors would probably try to avoid now that Mr. Scarcella’s record has been called into question.

Mr. Kuby said he requested a hearing for September, which would give prosecutors two months to either move to dismiss Mr. Shakur’s conviction or face him in court. Mr. Kuby plans to introduce one witness who has said that Mr. Shakur was not the gunman in the killings.

The prosecutor’s office, which had consented to a hearing to explore whether a new witness could prove Mr. Shakur innocent, played down the significance of the judge’s decision. “We consented to the hearing and will continue our ongoing investigation into the matter,” Amy Feinstein, a chief assistant to Mr. Hynes, said in a statement.

The Times’s review of Mr. Scarcella’s cases began in March, after prosecutors asked a judge to dismiss charges against David Ranta, who had spent 23 years in prison for killing a rabbi in a botched robbery.

In that case, investigators found that Mr. Scarcella told a witness whom to select in a lineup and allowed jailhouse informers to go out on field trips to smoke crack and visit their girlfriends. As in Mr. Shakur’s case, the detective had no notes to back up the confession that Mr. Scarcella said Mr. Ranta had provided and that he submitted to the court.

In a telephone interview from the Auburn Correctional Facility, Mr. Shakur said he would prefer that a judge examine his case, rather than leaving it in the hands of prosecutors.

“They should put Scarcella on the stand; he’s going to have to answer a lot of questions,” Mr. Shakur said. “I want a hearing, so everyone can come and see how long it takes to be heard.”

Mr. Shakur said he had filed at least a dozen appeals, many of which made the same accusations that will now be taken up.

    Judge to Hear Accusations Against Police by an Inmate, NYT, 5.7.2013,






Needed: A New Safety Valve


June 23, 2013
The New York Times


Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

Representative Karen Bass, a California Democrat, asked a panel of experts about the problem of mandatory minimum sentences, which contribute to prison overcrowding and rising costs. In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Both the Senate and the House are considering a bipartisan bill to allow federal judges more flexibility in sentencing in the 195 federal crimes that carry mandatory minimums. The bill, called the Justice Safety Valve Act, deserves committee hearings and passage soon.

A 1994 federal sentencing law allows judges to reduce sentences for drug crimes if no one was harmed during the crime and if the offender had little or no criminal history, was not a leader in organizing the crime and used neither violence nor a gun. But that law is far too narrow; all felony convictions are disqualifying for a reduction, as are some minor offenses, like passing a bad check.

The proposed bill would apply to all federal crimes with mandatory minimums, not just drug crimes, so it would include theft of food stamps and miscellaneous other lesser crimes. It would also let judges consider less-lengthy sentences for drug offenders who don’t qualify for a reduction under the current law.

The case of Weldon Angelos has long stood for the injustice of mandatory minimums. Mr. Angelos received a 55-year prison sentence in 2004 for selling a few pounds of marijuana while having handguns in his possession, which he did not use or display. In an extraordinary opinion, the federal trial judge said he had no choice but to impose that “cruel, unjust, and irrational” sentence. The Justice Safety Valve Act would give courts more leeway to avoid that one-size-fits-all approach.

    Needed: A New Safety Valve, NYT, 23.6.2013,






In Place of Compassion, Cruelty


May 5, 2013
The New York Times


The Justice Department’s inspector general last week issued a report on the appalling failure of the Federal Bureau of Prisons to do its duty in assisting in the release of terminally ill inmates and others in extreme situations. The 85-page report by the inspector general’s office criticized the bureau’s “compassionate release” program, which has been “poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.”

Details in the report painted an even harsher picture, one of government scorn for the program and, worse, for prisoners the bureau is required to treat humanely. The program has the potential to save money, and it poses scant risk to public safety, given the population eligible for this kind of early release. But the government has kept the use of the program to a shameful minimum.

Last November, a joint report by Human Rights Watch and Families Against Mandatory Minimums found that the percentage of prisoners released has shrunk from tiny to microscopic. From 1992 until November 2012, a period in which the federal prison population grew from around 80,000 to 200,000, the bureau released 492 prisoners through the program, an average of only two dozen or so a year. Virtually the only ground the Bureau of Prisons has accepted for release is terminal illness with up to a year of life expectancy, even though the United States Sentencing Commission has identified other grounds for release that meet the federal statute’s standards: impairment due to old age, a permanent physical or mental condition, and the incapacitation of a family member who provides the sole care for the prisoner’s minor children.

The Justice Department and the Bureau of Prisons say they are revising their regulations about compassionate release. It is time for Congress to conduct a hearing that would put the department and the bureau on public record about what they are doing to properly fulfill their duty under the law and to hold them accountable.

Congress authorized the Bureau of Prisons to petition a federal judge to reduce an inmate’s sentence for “extraordinary and compelling” circumstances. The bureau is supposed to notify all prisoners of the compassionate release program and of their chance to apply, provide standards for eligibility, and lay out steps to ensure that prisons respond swiftly to release applications. The Justice Department and the Bureau of Prisons have long failed to take these duties seriously, disgracefully refusing to carry out a humane and practical law.

    In Place of Compassion, Cruelty, NYT, 5.5.2013,




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