It's fall, and that means it's the time of year for the US Supreme Court to further strip away the Fourth Amendment to the Bill of Rights as though it was so much bourgeois furniture being destroyed for kindling in the aftermath of an apocalypse. A column in the New York Times points out a pair of Fourth Amendment cases at SCOTUS that bear watching. The op ed by law prof Jeffrey Meyer opened:
Showing posts with label Florida. Show all posts
Showing posts with label Florida. Show all posts
Friday, October 19, 2012
Thursday, January 19, 2012
Florida to close 7 prisons, why couldn't Texas?
Florida recently announced they will close seven prisons and four work camps under a gubernatorial plan from Republican Rick Scott that's being tarred by Democrats and prison-guard unions as soft on crime and evidence of an "extreme Tea Party agenda." The state was able to close the units because of declining prisoner populations: “No inmates will be released early as a result of this decision, and there will remain adequate bed space to accommodate projected prison admissions, which have steadily decreased since FY 2007-08,” the corrections department said in a statement.
Regular readers know Grits believes Texas could have realized similar savings in the 82nd Texas legislature last year (we have more prisons and prisoners, by a longshot, than the Sunshine State) with just a few key policy tweaks, but the Lege instead cut funding, mostly for prisoner healthcare, without doing anything to reduce the inmate population. Within months, the state was paying $5 million per month over budget in an interim contract for healthcare costs with UTMB. When 2013 comes, if they want to cut TDCJ's budget they'll have to reduce the number of people incarcerated there.
Last week the Texas Public Policy Foundation held a panel at their annual policy conference (thanks to Marc Levin and David Guenther for the invite) featuring outgoing House Corrections Chairman Jerry Madden, chief Harris-County judicial cat-herder Caprice Cosper, House Rep. Marisa Marquez, and Adam Gelb from the Pew Center on the States.
Gelb's presentation focused on five "myths" about crime and punishment, but one of them spoke directly to the fallacy that "crime rates drive incarceration rates." In fact, he said, policy changes are the primary driver where states have reduced incarceration. That's how Texas avoided new prison building throughout most of the last decade, and it's the only way to reduce costs now.
Much was made at the event, and rightly so, of Texas 2007 investments in probation and diversion programs which have been oft-credited with keeping TDCJ's population 17,000 prisoners lower than had been projected five years ago. But in the "what have you done for me lately?" category, protecting those investments was the main accomplishment claimed for 2011.
In the Q&A section, I got to ask the panel why the Lege hadn't enacted more policy reforms to reduce inmate numbers and prison costs, "doubling down" on their earlier success to actually empty out and close prisons, as is happening in Florida. Madden replied that recidivism studies take three years and in 2011 they didn't have enough data to judge outcomes from the 2007 investments. While it's clear they worked overall, he said, the 2007 budget investments financed an array of different programs, and the Lege needed to wait on data to see which worked and which didn't to decide how to proceed.
That's a fair point, but in some ways the answer dodges the central conundrum facing the state on corrections spending. After all, the Lege slashed healthcare spending at TDCJ utterly without forethought or regard for reality, while failing to pass legislation that reduced the number of prisoners (particularly the sickest and/or elderly prisoners who cost the most money) commensurate with the smaller budget. Now, for this biennium, TDCJ will be coming in nearly nine-figures over budget, if the $5 million per month premium to UTMB continues, with 2013's budget expected to be even tighter. Last year they cut prisoner food, bled prisoner commissary accounts, reduced programming and educational opportunities, and likely cut all they reasonably can without addressing the elephant in the room: How can they change policies to reduce incarceration costs?
For the most part in 2011, that didn't happen, and there are few signs it's being seriously considered now (though one of the Senate Criminal Justice Committee's interim charges asks them to study diversion programs in part with an eye toward "reductions in correctional populations"). Tight budgets, though, have a way of forcing radical decisions on legislators that no amount of external advocacy could ever persuade them to make. At a minimum, it'd be helpful for TDCJ to reduce inmate numbers enough to end some of its contract arrangements with private-prison companies instead of paying for each marginal, extra inmate on a per diem basis.
As Chairman Madden pointed out on the TPPF panel, in the near future TDCJ's Sunset process is the most likely vehicle for enacting such fundamental reforms. Grits hopes the Sunset reviewers evaluate the agency and make recommendations with an eye toward revamping TDCJ to correspond to these new budget realities, strengthening probation and parole while seeking creatively ways to emulate Flordia, New York, Michigan, and other states which have reduced incarceration and shut down prisons. That's the recipe for budget stability in Texas corrections - a lot of insiders already know it - and really the question becomes more one of political courage than budget sense. In that context, tight budgets could force legislators to do the right thing for the wrong reasons, letting them scale back mass incarceration without paying the same kind of political price one might pay, say, from closing neighborhood schools, by pointing out that's the tradeoff. Caprice Cosper echoed that sentiment, saying the budget crunch was an opportunity to think creatively.
Time will tell. Texans like to boast, I commented to the panel, and Madden was right to boast about the 2007 budget reforms - they were a great accomplishment. I'm glad this session they were mostly protected. But it's time to acknowledge that their effects have pretty much played out and more will need to be done in 2013 to actually cut the budget, much less avoid new prison building (or expanding use of contract beds) by the end of the decade.
Regular readers know Grits believes Texas could have realized similar savings in the 82nd Texas legislature last year (we have more prisons and prisoners, by a longshot, than the Sunshine State) with just a few key policy tweaks, but the Lege instead cut funding, mostly for prisoner healthcare, without doing anything to reduce the inmate population. Within months, the state was paying $5 million per month over budget in an interim contract for healthcare costs with UTMB. When 2013 comes, if they want to cut TDCJ's budget they'll have to reduce the number of people incarcerated there.
Last week the Texas Public Policy Foundation held a panel at their annual policy conference (thanks to Marc Levin and David Guenther for the invite) featuring outgoing House Corrections Chairman Jerry Madden, chief Harris-County judicial cat-herder Caprice Cosper, House Rep. Marisa Marquez, and Adam Gelb from the Pew Center on the States.
Gelb's presentation focused on five "myths" about crime and punishment, but one of them spoke directly to the fallacy that "crime rates drive incarceration rates." In fact, he said, policy changes are the primary driver where states have reduced incarceration. That's how Texas avoided new prison building throughout most of the last decade, and it's the only way to reduce costs now.
Much was made at the event, and rightly so, of Texas 2007 investments in probation and diversion programs which have been oft-credited with keeping TDCJ's population 17,000 prisoners lower than had been projected five years ago. But in the "what have you done for me lately?" category, protecting those investments was the main accomplishment claimed for 2011.
In the Q&A section, I got to ask the panel why the Lege hadn't enacted more policy reforms to reduce inmate numbers and prison costs, "doubling down" on their earlier success to actually empty out and close prisons, as is happening in Florida. Madden replied that recidivism studies take three years and in 2011 they didn't have enough data to judge outcomes from the 2007 investments. While it's clear they worked overall, he said, the 2007 budget investments financed an array of different programs, and the Lege needed to wait on data to see which worked and which didn't to decide how to proceed.
That's a fair point, but in some ways the answer dodges the central conundrum facing the state on corrections spending. After all, the Lege slashed healthcare spending at TDCJ utterly without forethought or regard for reality, while failing to pass legislation that reduced the number of prisoners (particularly the sickest and/or elderly prisoners who cost the most money) commensurate with the smaller budget. Now, for this biennium, TDCJ will be coming in nearly nine-figures over budget, if the $5 million per month premium to UTMB continues, with 2013's budget expected to be even tighter. Last year they cut prisoner food, bled prisoner commissary accounts, reduced programming and educational opportunities, and likely cut all they reasonably can without addressing the elephant in the room: How can they change policies to reduce incarceration costs?
For the most part in 2011, that didn't happen, and there are few signs it's being seriously considered now (though one of the Senate Criminal Justice Committee's interim charges asks them to study diversion programs in part with an eye toward "reductions in correctional populations"). Tight budgets, though, have a way of forcing radical decisions on legislators that no amount of external advocacy could ever persuade them to make. At a minimum, it'd be helpful for TDCJ to reduce inmate numbers enough to end some of its contract arrangements with private-prison companies instead of paying for each marginal, extra inmate on a per diem basis.
As Chairman Madden pointed out on the TPPF panel, in the near future TDCJ's Sunset process is the most likely vehicle for enacting such fundamental reforms. Grits hopes the Sunset reviewers evaluate the agency and make recommendations with an eye toward revamping TDCJ to correspond to these new budget realities, strengthening probation and parole while seeking creatively ways to emulate Flordia, New York, Michigan, and other states which have reduced incarceration and shut down prisons. That's the recipe for budget stability in Texas corrections - a lot of insiders already know it - and really the question becomes more one of political courage than budget sense. In that context, tight budgets could force legislators to do the right thing for the wrong reasons, letting them scale back mass incarceration without paying the same kind of political price one might pay, say, from closing neighborhood schools, by pointing out that's the tradeoff. Caprice Cosper echoed that sentiment, saying the budget crunch was an opportunity to think creatively.
Time will tell. Texans like to boast, I commented to the panel, and Madden was right to boast about the 2007 budget reforms - they were a great accomplishment. I'm glad this session they were mostly protected. But it's time to acknowledge that their effects have pretty much played out and more will need to be done in 2013 to actually cut the budget, much less avoid new prison building (or expanding use of contract beds) by the end of the decade.
Sunday, July 31, 2011
Federal court tosses "atavistic and repugnant" Florida drug laws for lack of mens rea element
Holy Crap! If it were April 1 I'd be certain this was a joke. Check out this amazing news out of Florida, as reported by John Schwarz at the New York Times:
Criminal law is best suited for cases with criminal intent, not accidents or mistakes, what used to be termed "torts." Civil suits serve a legitimate purpose in resolving non-criminal disputes, but tort reform, mandatory arbitration, etc., have placed a burdensome yoke on the ability of civil courts to administer justice. So increasingly, people instead seek justice in criminal courts, with accidents and mistakes now more frequently criminalized instead of just incurring civil liability. The increasingly radical limitation of civil law over recent years created a vacuum which was eagerly filled by cops, courts, and an array of special interests seeking to create their own specialized crimes and related punishments. The diminished role of civil law as a cause of overcriminalization was briefly addressed in the WSJ article:
Meanwhile, imagine the mess officials must now thrash out in Florida if the decision stands: Are old convictions invalid? Must new charges be dropped? Is the state liable to the accused for arresting, prosecuting and punishing under an unconstitutional law? ¿Quien sabe? What a zoo this could become for the Sunshine State!
MORE: From the Wall Street Journal Law Blog, Simple Justice, Constitutional Law Prof Blog, and Josh Blackman's Blog.
A federal judge in Orlando on Wednesday declared the state’s controlled-substances laws unconstitutional. A 2002 Florida law eliminated the requirement of a “guilty mind,” or “mens rea,” as part of a drug offense. Briefs attacking the Florida law, in which a defendant need not know that a substance is illegal to be convicted of possessing or selling it, had been filed by groups including the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and dozens of law professors. Judge Mary S. Scriven of Federal District Court threw out the drug delivery charges against Mackle Vincent Shelton, and ordered a new sentencing hearing on other charges. Florida’s unique law expressly eliminating mens rea for drug offenses, the judge wrote, is “atavistic and repugnant to the common law.” The state is expected to appeal the decision, which could leave hundreds, if not thousands, of convictions in question and affect pending cases.Here's the opinion (pdf) While Florida's law appears to have been especially egregious, if the feds actually began to require a stronger mens rea element in all state and federal statutes - not just drug laws but a massive array of government dicta on as many subjects as one may imagine - it would transform the modern legal system for the better. A recent Wall Street Journal story (mentioned briefly in this Grits post) lamented the lack of a mens rea component in many recent federal laws:
Some of these new federal statutes don't require prosecutors to prove criminal intent, eroding a bedrock principle in English and American law. The absence of this provision, known as mens rea, makes prosecution easier, critics argue.The notion of mens rea is the flip side of the old saying, "Igorance of the law is no excuse." The latter sentiment may be technically true, but for example, after this legislative session Texas now has more than 3,000 felonies on the books (the Board of Pardons and Paroles will issue the exact count later this year). There are another 3-4,000 (often redundant) federal felonies, along with countless misdemeanors, myriad state and federal regulations, and a vast patchwork of municipal ordinances. Taken together, there's not an attorney in the land who knows what they all are, much less any average citizen. Ignorance may be no excuse, but prosecuting and punishing people for "wrongdoing" where there was no criminal intent, no victim, etc., turns the criminal justice system into a Kafkaesque joke.
A study last year by the Heritage Foundation and the National Association of Criminal Defense Lawyers analyzed scores of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and nearly 40% more had only a "weak" one.
Some jurists are disturbed by the diminished requirement to show criminal intent in order to convict. In a 1998 decision, federal appellate judge Richard Posner, a noted conservative, attacked a 1994 federal law under which an Illinois man went to prison for three years for possessing guns while under a state restraining order taken out by his estranged wife. He possessed the guns otherwise legally, they posed no immediate threat to the spouse, and the restraining order didn't mention any weapons bar.
"Congress created, and the Department of Justice sprang, a trap" on a defendant who "could not have suspected" he was committing a crime, Judge Posner wrote.
Criminal law is best suited for cases with criminal intent, not accidents or mistakes, what used to be termed "torts." Civil suits serve a legitimate purpose in resolving non-criminal disputes, but tort reform, mandatory arbitration, etc., have placed a burdensome yoke on the ability of civil courts to administer justice. So increasingly, people instead seek justice in criminal courts, with accidents and mistakes now more frequently criminalized instead of just incurring civil liability. The increasingly radical limitation of civil law over recent years created a vacuum which was eagerly filled by cops, courts, and an array of special interests seeking to create their own specialized crimes and related punishments. The diminished role of civil law as a cause of overcriminalization was briefly addressed in the WSJ article:
Another area of concern among some jurists is the criminalization of issues that they consider more appropriate to civil lawsuits. In December, the Ninth Circuit Court of Appeals, which is considered liberal, overturned the fraud conviction of a software-company executive accused of helping to issue false financial statements. The government tried "to stretch criminal law beyond its proper bounds," wrote the Circuit's chief judge, Alex Kozinski.In the Florida case, the court called the lack of a mens rea requirement "atavistic and repugnant to the common law." Will this decision signal the beginning of a new reevaluation of mens rea by the federal courts, or will it turn out to be a one-off, non-replicable tactic ill-suited for challenging other strict-liability crimes? Time will tell, but it's a subject ripe for more open and honest discussion.
Civil law, he said, is a better tool to judge "gray area" conduct—actions that might, or might not, be illegal. Criminal law, he said, "should clearly separate conduct that is criminal from conduct that is legal."
Meanwhile, imagine the mess officials must now thrash out in Florida if the decision stands: Are old convictions invalid? Must new charges be dropped? Is the state liable to the accused for arresting, prosecuting and punishing under an unconstitutional law? ¿Quien sabe? What a zoo this could become for the Sunshine State!
MORE: From the Wall Street Journal Law Blog, Simple Justice, Constitutional Law Prof Blog, and Josh Blackman's Blog.
Subscribe to:
Posts (Atom)
.jpg)
