Let’s Put Prison Sentences on Probation

Judges share the blame for America’s burgeoning incarcerated population.

— by

john-kiriakouYou may have heard there’s a growing political movement against mass incarceration. Someone should clue in the judges.

In the past 30 years, federal judges have turned to imprisonment — as opposed to probation — as the punishment of choice for even minor crimes, according to the Pew Charitable Trusts. During that same period, federal cases have tripled in number.

The Pew study reports that “nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation steadily declined.” Despite the ballooning number of cases in that time, 2014 saw 2,300 fewer probation sentences than 1980.

Part of the fault lies with the draconian mandatory minimum sentences that Congress passed in the 1980s and 1990s as it ratcheted up the so-called war on drugs. Attorney General Loretta Lynch told a group at Harvard Law School in mid-January that these laws have had a “devastating effect on poor communities, and were a drastic and ineffective response to the drug scourge of the 1980s.”

Guantanamo-prisoner-detainee-hands-tied-torture-gitmo
Val Kerry / Flickr

That may be true, but it’s not the whole story.

Drug cases account for about 47 percent of all federal crimes, according to the Federal Bureau of Prisons, or BOP. What about the other 53 percent? Should all of those people really be in prison? I think not.

First, there are many kinds of federal prisons.

The worst and most violent prisoners — murderers and terrorists, for example — are in maximum-security penitentiaries, which hold about 12 percent of the BOP’s prisoners. While we can certainly have a discussion about the use of solitary confinement in these facilities — critics like the United Nations call it torture — few would dispute that these dangerous offenders should be held securely.

Medium-security prisons, which still have high walls and guard towers, hold another 30 percent of federal prisoners. These are generally the bank robbers, serious drug offenders, people in on gun charges, and the like. If these prisoners are well behaved, and if they have fewer than 20 years to go on a sentence, they’re eligible to move to a low-security prison.

Low-security prisons hold another 38 percent of federal prisoners. Most people with mandatory minimum drug sentences are here, as are nearly all of the BOP’s pedophiles. Most prisoners at this level are on their best behavior because they hope to be transferred to a minimum-security work camp (though child abusers and violent offenders are ineligible).

But here’s a question: If a crime is so minor that a person can be sentenced to a work camp, which is outside the prison walls, then why are these people in prison at all?

Blaming mandatory minimums goes only so far. Not all crimes have them. In fact, most don’t.

So why would a judge willingly take a parent away from his family, or out of the workforce? Why disrupt a community when probation is a legitimate punishment that the judge has the authority to levy?

While on probation, the offender could continue to work and support his family, pay taxes and restitution, and still make amends with society. It makes more sense. It’s worked in the past.

If judges are serious about reducing prison populations, they’ll sentence more offenders to probation.


OtherWords columnist John Kiriakou is an associate fellow at the Institute for Policy Studies and the winner of the 2015 PEN Center USA First Amendment award. OtherWords.org.

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The 9th Circuit Did NOT Invent Equal Protection

— by Rich Dunn, NVRDC 2nd Vice Chairperson

“After the voters of Nevada passed a law designating that marriage be defined as a union between a man and a woman, Nevada’s Democrat (sic) attorney general has co-opted with the ultra-liberal Ninth Circuit Court of Appeals and decided that ‘we can’t win after the Ninth Circuit changed the rules’ (by deciding in another case that any law that deals with homosexual people requires heightened scrutiny with regard to possible discrimination).”
-Teri A. Cotham of Gardnerville in a letter published in the Feb. 18th Nevada Appeal

Teri doesn’t seem to have heard about United States v. Windsor, the Supreme Court case which struck down Section 3 of the Defense of Marriage Act, thereby granting federal benefits to same sex couples who are married under state law. That’s the case upon which the Utah and Virginia same-sex marriage bans have been ruled unconstitutional, and upon which Nevada’s same-sex marriage ban will no doubt be overturned, regardless of whether the State of Nevada chooses to defend it. And it’s worth noting that the Windsor case came from the Southern District of New York in the 2nd Circuit, not the 9th Circuit.

Teri also doesn’t appear to understand what role the 9th Circuit played in Hollingsworth v. Perry, the case she appears to be citing. That was a 50-page ruling by Judge Vaughn Walker of the U.S. District Court for the Northern District of California that Prop 8, the anti-gay marriage initiative on the 2008 ballot, was unconstitutional under both the Due Process and Equal Protection Clauses of the 14th Amendment.

The 9th Circuit issued a stay to give Prop 8 proponents an opportunity to appeal, then passed that appeal on to the U.S. Supreme Court, which refused to hear it, ruling that proponents of initiatives such as Prop 8 don’t have standing to defend the resulting law. On that basis, the court directed the 9th Circuit to lift its stay and vacate its concurrence, allowing Judge Walker’s ruling to stand. And that is how Prop 8 was overturned.

Lastly, Teri seems unaware that the concept of subjecting certain kinds of legal challenges to “heightened scrutiny” is based on the 14th Amendment’s equal protection clause. When a law has the potential to infringe upon a civil right, the government is called upon to defend it. If it’s found to be too broad in scope, fails to accomplish its stated purpose, or unreasonably infringes upon constitutionally protected rights, it will be struck down in any circuit, not just the 9th Circuit.

Confirmation Hearing: Nina Pillard

photo credit to ThinkProgress

In my email today from Drew Courtney, Director of  Communications at PFAW, was the following:

One item that didn’t get the attention it deserved during the hearings of DC Circuit nominee Nina Pillard today is her role leading Georgetown University Law Center’s Supreme Court Institute. The SCI offers its moot courts as a public service, at no charge and irrespective of the positions taken by counsel, reflecting a core commitment to the quality of Supreme Court advocacy in all cases.

Members of the Supreme Court Bar, including Carter Phillips, Andrew Pincus, Lawrence Robbins and Charles Rothfeld (all attorneys in the Solicitor General’s office under President Ronald Reagan) cited Pillard’s work leading the Supreme Court Institute in the letter they wrote calling for her confirmation.

http://www.judgingtheenvironment.org/library/letters/Pillard-SCT-Bar-Letter-7-17-2013.pdf

“Professor Pillard is also Faculty Co-Director of the Supreme Court Institute (SCI), a unique project at Georgetown University Law Center, dedicated to improving practice before the Supreme Court. The SCI recruits professors and attorneys with experience in Supreme Court litigation to act as mock justices to help prepare lawyers for oral argument in the Court. The SCI offers its services impartially on a first-come, first-served basis to advocates with upcoming cases in the Supreme Court, and it has become so popular in recent years that it assisted lawyers in every case argued in the Court’s last Term. Chief Justice Roberts, Justices Scalia and Ginsburg, and many others from the bench and bar have praised the work of the SCI in contributing to the quality of advocacy. Most of us have participated as advocates and/or Justices at SCI moot court sessions. Over more than a decade, Professor Pillard has personally mooted dozens of cases, whether the advocate is a first-time lawyer or former Solicitor General, doing her best to help each advocate develop and present the best argument possible to the Court, regardless of the issue in the case or the ideological position of the party being represented.

We believe that Professor Pillard would bring to the D.C. Circuit unquestioned professional integrity and intellect, a breadth of experience, and dedication to fairness and the rule of law. We urge her confirmation.”

Ms. Pillard is facing an uphill battle getting her nomination out of the Senate Judiciary committee. Nina Pillard is being nominated for an open position on the U.S. Court of Appeals for the District of Columbia Circuit. This court has exclusive jurisdiction over many vital national security challenges and hears the bulk of appeals from the major regulatory agencies of the federal government. Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.  As such, it’s one of the busiest circuit courts.

Some of the GOP’s biggest nay-sayers sit on the Senate Judiciary committee (Chuck Grassley, Orrin Hatch, Jeff Sessions, Lindsay Graham, John Cornyn, Mike Lee, Ted Cruz and Jeff Flake ), and thus far, they’ve been very successful at crippling the DC Circuit court’s ability to handle some of our nation’s most challenging cases.  At today’s hearing, Republican committee members zeroed in and fixated on an article she wrote in 1997 that suggested that abstinence-only sex education may violate the equal protection rights of women.

Instead of demeaning and painting Ms. Pillard as a mere characture, maybe Senators Ted Cruz and Mike Lee should check in with President George W. Bush’s Assistant Attorney General Viet Dinh, who says of Pillard “…  is a fair-minded thinker with enormous respect for the law and for the limited, and essential, role of the federal appellate judge—qualities that would make her well prepared to take on the work of a DC Circuit judge. I am confident that she would approach the judicial task of applying laws to facts in a fair and meticulous manner.”

GOP Senators should rethink their premise.  Professor Pillard’s academic writings actually show her openness to viewpoints raised by abortion opponents.

  • Professor Pillard consulted anti-abortion advocate Helen Alvaré in writing her article ‘Other Reproductive Choices’ to ensure her work considered all sides of the public debate on women’s reproductive health. In fact, Professor Alvaré is listed in the article’s acknowledgements.
  • Pillard wrote, “Feminists for Life (FFL), a nonprofit organization declaring itself in favor of equality for women and against abortion, makes some claims that resonate with those of some pro-choice feminists, and which should be common ground in the reproductive rights battles.”  (Pillard, Our Other Reproductive Choices, p. 981)

Moreover, there have been multiple Circuit Court nominees who have written extensively on controversial issues such as abortion from a anti-choice point of view, who went on to be confirmed with strong support from Republicans.

  •  William Pryor, nominated to Eleventh Circuit, had called Roe v Wade the “worst abomination in the history of constitutional law,” but was led to say that even though he strongly disagreed with Roe, he would act in accordance with it if confirmed. He was confirmed.
  • Michael McConnell, nominated to the Tenth Circuit, said Roe was wrongly decided and urged the Supreme Court to overturn it.  He called for a constitutional amendment to protect the rights of the unborn. He also applauded a federal judge for refusing to convict anti-abortion protestors, even though they had clearly violated the law, because of his sympathetic reading of the defendants’ motives. He was unanimously confirmed.
  • J. Leon Holmes, an Arkansas district court nominee, had argued that abortion should be banned even in case of rape because pregnancy from rape is as uncommon as “snowfall in Miami,” and had written that wives should be submissive to their husbands. He was confirmed.
  • Janice Rogers Brown, also nominated to the DC Circuit, had made multiple provocative remarks in speeches, such as referring to the New Deal as the start of a Socialist movement. She admitted that she was trying to be provocative, but assured the committee at her hearing that she “would follow precedent.” She was confirmed.

If we want something other than continual obstruction, WE need to take just a few minutes from our day, and let our Senators know where we stand and urge them to take the action we support.  It’s up to us.  This morning, I took the time to send an email to both Senator Reid and Senator Heller asking them both to actively support and vote for her confirmation.  I also took the time to email each GOP Senator on the Judiciary Committee asking them to vote for her confirmation.  I hope you’ll do the same by clicking the above links for Senators Reid and Heller and asking them for their vote of confirmation.  Or, if you’re an out-of-state reader, you can find a link to your Senator’s email contact form HERE.

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In ‘Chilling’ Ruling, Chevron Granted Access to Activists’ Private Internet Data

"Sweeping" subpoena violates rights of those who spoke out against oil giant’s devastating actions in Ecuador

– Lauren McCauley, staff writer

Following their guilty sentence for the dumping of 18.5bn gallons of toxic waste in the Ecuadorian Amazon, Chevron is amassing the personal information of the environmentalists and attorneys who fought against them in an effort to prove ‘conspiracy.’  The US government is not the only entity who, with judicial approval, is amassing massive amounts of personal information against their so-called enemies.

A federal judge has ruled to allow Chevron, through a subpoena to Microsoft, to collect the IP usage records and identity information for email accounts owned by over 100 environmental activists, journalists and attorneys.

The oil giant is demanding the records in an attempt to cull together a lawsuit which alleges that the company was the victim of a conspiracy in the $18.2 billion judgment against it for dumping 18.5 billion gallons of oil waste in the Ecuadorean Amazon, causing untold damage to the rainforest.

The "sweeping" subpoena was one of three issued to Google, Yahoo! and Microsoft.

"Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron," said Marcia Hofmann, Senior Staff Attorney with the Electronic Frontier Foundation, who—along with environmental rights group EarthRights International (ERI)—had filed a motion last fall to "quash" the subpoenas.

"These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant’s activities in Ecuador," she added at the time.

According to ERI, the subpoena demands the personal information about each account holder as well as the IP addresses associated with every login to each account over a nine-year period. "This could allow Chevron to determine the countries, states, cities or even buildings where the account-holders were checking their email," they write, "so as to ‘infer the movements of the users over the relevant period and might permit Chevron to makes inferences about some of the user’s professional and personal relationships.’"

In their statement about the ruling, ERI notes that the argument given by presiding US District Court Judge Lewis Kaplan—who was previously accused of prejudice against the Ecuadorians and their lawyers—was as "breathtaking as the subpoena itself." They continue:

According to Judge Kaplan, none of the account holders could benefit from First Amendment protections since the account holders had “not shown that they were U.S. citizens.”

Now, let’s break this down. The account-holders in this case were proceeding anonymously, which the First Amendment permits. Because of this, Judge Kaplan was provided with no information about the account holders’ residency or places of birth. It is somewhat amazing then, that Judge Kaplan assumed that the account holders were not US citizens. As far as I know, a judge has never before made this assumption when presented with a First Amendment claim. We have to ask then: on what basis did Judge Kaplan reach out and make this assumption?

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This work was published on Thursday, July 11, 2013 by Common Dreams and is licensed under a Creative Commons Attribution-Share Alike 3.0 License (Photo: Rainforest Action Network/ cc/ Flickr)

In Major Blow To Consumers, Supreme Court Protects Mega-Corporations From Liability

By Nicole Flatow on Jun 20, 2013 at 12:10 pm

NicoleFlatowIn case it wasn’t clear already, the U.S. Supreme Court hammered home Thursday morning that it will protect the rights of corporations to force arbitration over the individuals’ access to the court system at any expense.

 In a 5-3 ruling with Justice Sonia Sotomayor recused, Justice Antonin Scalia eviscerated almost any opportunity small merchants have to challenge alleged monopolistic practices by American Express in their credit card agreements.

Sound familiar? Earlier this term, the court turned back on procedural grounds a lawsuit alleging monopolistic practices by Comcast. A week after that, they turned back the claims of workers to challenge employer practices as a class. And in 2011, they issued one of the worst blows to consumer rights in years when they held that consumers challenging $30 fees could not sue together as a class. In each of these cases, the court’s procedural rulings mean the parties may never get to argue about whether these corporations actually violated the law. And as a consequence, these corporations may never be held accountable.

With Thursday’s ruling, the court added small businesses to the list of aggrieved parties whose access to the courthouse has been foreclosed by boilerplate contracts that prohibit parties from filing their challenge as a class, or from otherwise alleviating the immense cost of filing their claims individually. This time, the litigants were small businesses taking on American Express, and their lawyer was none other than conservative powerhouse Paul Clement. Clement has argued many of the major conservative court wins of the past few years, and his argument on the side of the plaintiffs was probably the last best shot at curbing the Roberts Court’s total perversion of the Federal Arbitration Act.

As in the AT&T case, the plaintiffs here argued that the only way they could challenge the policy of mega-corporation American Express was by banding together as a class and pooling their resources. But consumers’ claims in AT&T were struck down on a different rationale, that their state law claims were preempted by the Federal Arbitration Act. This time, the plaintiffs argued that because their antitrust claims are federal , they are protected by the principle of “effective vindication,” meaning that where an arbitration clause effectively immunizes otherwise meritorious federal claims, plaintiffs are entitled to vindication of their actual rights. To show that that the arbitration clause would make any challenge prohibitively expensive, they deployed formal affidavits by economists attesting to the immense cost of these claims — “’at least several hundred thousand dollars, and might exceed $1 million’,” while the maximum recovery for an individual plaintiff would be $12,850, or $38,549 when trebled,” meaning they could not afford to launch their claims without the ability to file them together.

No matter, said the majority. In AT&T, “[w]e specifically rejected the argument that class arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal system’.” This case is about federal law vindication and AT&T was about state law preemption, but as Justice Elena Kagan wrote in dissent, “to a hammer everything looks like a nail.” Joined by Justices Ruth Bader Ginsburg and Stephen Breyer, Kagan explains the case this way:

Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so.

That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.That answer is a betrayal of our precedents, and of federal statutes like the antitrust laws.

Today’s ruling was yet another point in the Chamber of Commerce’s remarkable tally of wins before the Roberts Court, and another chance for the most business-friendly justices in 65 years to side with their friends.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.