The Police Are Right About One Thing: Sentencing Reform

By John Kiriakou, Reader Supported News

17 July 16

aw enforcement organizations are calling on both major presidential candidates to publicly support an overhaul of the criminal justice system – including sentencing reform – to reduce crime and to improve relations between police and citizens. The announcement comes in the aftermath of repeated failed attempts in Congress to pass comprehensive sentencing reform legislation.

Civil liberties groups have long sought comprehensive sentencing reform. They thought they had a real chance in 2014 when a bipartisan group of senators, led by Sheldon Whitehouse (D-R.I.) and John Cornyn (R-Texas) introduced the Recidivism Reduction and Public Safety Act of 2014 (S. 1675). The bill easily passed the Judiciary Committee. A similar bill, the Smarter Sentencing Act of 2013 (S. 1410), also passed committee. Both bills died on the floor when then-Majority Leader Harry Reid (D-Nev.) refused to call them up for a vote. A year later, the new Majority Leader, Mitch McConnell (R-Ky.), also refused to allow a vote.

Both bills, which would have eased sentencing guidelines, done away with mandatory minimum sentences for most drug crimes, and offered incentives for federal prisoners that would have allowed early release for good behavior and for taking GED or vocational classes, had the support of groups as diverse as the American Civil Liberties Union, the conservative Heritage Foundation, former prosecutors, police and prison guard organizations, victims’ advocates, prominent conservatives, and faith groups.

For many progressives, the unfairness of the current system calls out for redress. For many conservatives, it simply costs too much to incarcerate so many people.

Here’s how the current system works. Let’s say that “James” is involved in a heroin case along with a group of other people. The charge is conspiracy to distribute one kilo of heroin. Let’s also say that James is a first-time, nonviolent offender. He has no gun in his case. Because he has no criminal history, James falls under Criminal History Category Ion the federal sentencing guidelines chart. Prosecutors prefer not to go to trial. (Indeed, 98.2 percent of all federal inmates take a plea, rather than go to trial, according to ProPublica.) If James takes a plea, his federal guideline would put him at a level 25: 57-71 months in prison. But James says he’s innocent. He never imported heroin, and he never sold or used it, although some of his friends did. He pleads “not guilty,” reasoning that a jury will see the truth. He goes to trial.

Unfortunately, though, when the government claims a “conspiracy,” it pretty much has to prove only that the people involved knew each other, not that they personally committed each and every crime in the conspiracy. James is found guilty. When he goes for sentencing, he gets a level 25. But he also now faces “enhancements.” Enhancements are additions to a sentence that are given for a variety of reasons. James gets an extra two “points,” or levels, for “failure to accept responsibility.” (He argued his innocence, after all.) He gets another two points for “obstruction of justice” because he wouldn’t testify against his co-defendants. Although he’s never been prosecuted for a serious crime before, he did have a DUI in college. That’s an extra four points for “criminal history,” even though it doesn’t raise his Criminal History Category to a II. The feds say that because James didn’t pay any federal taxes on the proceeds of the heroin, that’s another two points. At sentencing, instead of the 57-71 months that he might have gotten (or the 36-48 months he was probably offered as part of a plea deal) James goes from a level 25 to a level 35, which means 168-210 months. He’ll likely do around 15 years.

This happens every day in America, where judges have no concept of time, prosecutors get promoted based on their success in putting people in prison, and Congress has mandated mandatory minimum sentences.

The United States already has 25 percent of the world’s prison population. The country desperately needs sentencing reform. The system cries out for it. All the relevant associated interest groups support it. The political will for it exists. Now we need a president to stand up to two intransigent politicians – McConnell and Chuck Schumer (D-N.Y.), the likely successor to Reid – and to tell him that the country has waited long enough. We need prison reform now.

John Kiriakou is an associate fellow with the Institute for Policy Studies. He is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

Punished for Being Poor

By Dahlia Lithwick, Slate

17 July 16

The Virginia scheme that suspends the driver’s license of anyone who can’t pay trivial fines.

n the aftermath of the death of Michael Brown and subsequent events in Ferguson, the justice department revealed a shocking bit of news: Missouri police departments were systematically issuing trivial fines and court costs against their very poorest citizens to raise revenue for local government functions. Ta-Nehisi Coates described this at the time as “plunder made legal,” and on Friday one neighboring municipality agreed to pay $4.7 million to 2,000 citizens who had faced such abuse. Perhaps the worst part of the Missouri grift lay in the revelation that this system was keeping some of the state’s very poorest citizens from any possibility of ever emerging out of a bottomless spiral of destitution, homelessness, and debt. Ferguson and other municipalities were essentially criminalizing being poor. Missouri was not alone in this, though, and this past week there were brand new revelations about another state’s pernicious tactic for turning poverty into a crime in a scheme just as damaging as the one that the Justice Department rightfully pilloried in the Show Me State.

In Virginia, more than 900,00 people have lost their driver's licenses because they couldn’t pay the court fees associated with having them restored. That means that indigent people who may have been pulled over for the most minor of infractions can lose their license unless they pay stiff penalties. Research has shown that most drivers with suspended or revoked licenses—including those who have lost licenses because of failure to pay a fine—keep driving anyhow, usually because there is no alternative way to get to work, take children to school, or make medical appointments. If these individuals are caught driving on a suspended license in Virginia, that is punishable by a year in jail and a fine of up to $2,500, which just pushes the already impoverished deeper into poverty.

A statewide federal class action suit filed this past week in Virginia attempts to remedy this vicious cycle. The suit argues that by failing to inquire into the reason drivers can’t pay to have their licenses returned, the Commonwealth is in violation of the Constitution’s “fundamental principles of due process and equal protection.” It further contends that the state apparatus has become a debtors’ prison, targeting the very poorest citizens. Whether the lack of a license means you are basically confined to your home, or literally subject to jail time, you’re effectively locked up for failing to pay fines.

As the suit notes, the Supreme Court has held that punishing a person just because they can’t afford to pay a fine, as opposed to a willful refusal to pay, is a violation of due process.

You can surely argue that driving is a privilege and not a right. But the nature of public transportation in the Commonwealth suggests things should be otherwise. The complaint cites a report by the Brookings Institution that demonstrated that only 15 percent of jobs in the Virginia Beach, Norfolk, and Newport News areas were accessible by public transportation in a 90-minute travel window. Because the suspensions for failing to pay fines are automatic, approximately one in six Virginia drivers now has a suspended license for unpaid court costs and fines. A conviction for, say, reckless driving can lead to a six-month suspension of your license, but failure to pay court fees means you lose your license until your debt is settled. That can take years.

The suit was filed against Virginia’s Department of Motor Vehicles by the Charlottesville-based Legal Aid Justice Center. The 56-page complaint reads like a Dickens novel, detailing the Catch-22 sinkhole into which the four named plaintiffs have fallen, through illness and debt, along with the accumulated fines and fees that have prevented them from getting a license and cannot be paid off unless they are able to drive to work. One of the plaintiffs, Robert Taylor, owes nearly $4,400 in fines and fees plus interest that accrues at 6 percent every 41 days to at least four different Virginia courts. His license was suspended in 2013 due to an unpaid debt following a conviction for improper license plates, which meant that when he ran a red light in April 2014 while driving on a suspended license he sunk deeper in the hole. Taylor, a National Guard veteran, is also facing more than $15,000 in medical and student loan debt. But he can’t get jobs because he cannot promise prospective employers that he can drive to work. In the meantime, the state just keeps raising the price tag.

As this piece in Law Street observes, even the initial fines are no small amount of money if you’re poor: “Drivers whose licenses have been suspended or revoked due to unpaid court fines face a $145 reinstatement fee from the Virginia DMV. To put that in some perspective, that would be equivalent to about 20 hours of wages for someone working at Virginia’s minimum wage of $7.25 an hour.”

The lawyers behind the suit have correctly argued that it is beyond pointless for the state to keep trying to squeeze money out of the very people for whom driving is the surest way to try to get out of poverty. Automatic suspensions for unpaid costs and fines represent almost two-thirds of all outstanding suspension and revocation orders at this point. 

I asked Angela Ciolfi, one of the lawyers at the justice center, whether they can plausibly argue that we have a Constitutional right to our drivers licenses. In response, she rattled off a list of precedents. One case, 1971’s Bell v. Burson, found that “once licenses are issued … their continued possession may become essential in the pursuit of a livelihood.” The cases cited involved the government’s interest in traffic safety, but these Virginia suspensions are purely about coercive payment regimes. “The question is not whether we can think of a penalty harsh enough to make people pay, the question is whether we have the right to make people forgo their basic needs,” Ciolfi told me.  “Should paying the courts be a higher priority than paying child support, putting food on the table, or paying the rent?”

Criminalizing poverty is one of the most shortsighted policies in America today. We fill our jails with people who can’t afford to pay for their freedom, attempting to wring scraps of cash from those who must choose between fines and food. As Ciolfi puts it—paraphrasing the Equal Justice Initiative’s Bryan Stevenson—the question isn’t whether Virginia’s poorest citizens have a “right” to their driver’s licenses. It’s whether the commonwealth has a right to keep them from buying food, going to church, and earning a living, all because they couldn’t pay off petty fines associated with a broken taillight, or an expired plate. It makes no sense to jail people who are poor for trying to do the very things that could lift them out of poverty; better to repeal the laws requiring the suspension of driving privileges for non-traffic safety related reasons, than to see it become a one way road into prison.