Criminally Yours: The Prisoners Are Coming
Let's hope the follow-through on the sentence reductions will be as good as the build-up to it.
I’m wondering how last week’s headline, U.S. to Release 6,000 Inmates From Prisons, worried the general populace. The picture of thousands of ex-cons flooding the streets, looking for work, housing, and potentially committing more crime is not an easy one to swallow.
Well, rest easy. The release of these prisoners it is by no means either rashly designed or poorly implemented. Rather, it comes at the end of a series of long, careful studies, reviews by prosecutors and judges and a decision by the U.S. Sentencing Commission that the re-sentencing of these prisoners is a logical way to deal with the problem of prison overcrowding.
After decades of the just-put-them-in-jail mentality, the national collective (i.e., Republicans and Democrats) has come to the conclusion that mass incarceration, at least for drug crimes, is not only not feasible economically, but it’s gutting whole communities.
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The releases are based on a two-point change in the sentencing guidelines that qualify thousands of people for re-sentencing.
So who are these prisoners?
First, they are people convicted only of drug crimes. None of them was convicted for a crime of violence or was categorized as a “career offender.”
The U.S. Department of Probation culled the prisoners they believed to be eligible, and submitted those names and updates on their conduct in prison to the federal defense bar. Attorneys then petitioned on their behalf to the original sentencing judge and prosecutor, to consider re-sentencing them to the lesser retroactive amount. This is still ongoing. Everyone gets a chance to weigh in.
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What’s prompting the release is a change in the way the Sentencing Commission calculates punishments for drug crimes. Realizing drug sentences are too high, the Sentencing Commission reduced the number of points related to certain drug crimes by two.
To understand this, you need a quick snapshot of the guidelines. It’s an actual chart, like the tax tables. A certain number of points is ascribed to the type of crime itself, which then matches up with a column based on the person’s criminal history. (Think longitude and latitude.) The intersection of those two points lands you on the sentencing range. For example, a level-32 crime, in criminal history category I, gets the defendant a 121 to 151-month guideline sentence. (A judge can still sentence him to a higher or lower number, but the Guideline determination starts the ball rolling.) With the new two-point reduction, that same sentence becomes 97 to 121 months.
A judge then decides whether that particular defendant deserves the lower number. The decision is based on a number of criteria, including how the prisoner behaved while incarcerated, the prisoner’s role in the original offense, whether he’s likely to recidivate and, in part, the judge’s own personal politics.
The new numbers will save thousands of people up to a couple years in jail. Many will be released to half-way houses and hopefully job programs and services. But that’s the catch. What happens to these people once they’re back in society? The transition will not be easy, and with the severe collateral consequences associated with having any conviction, but especially a felony conviction for narcotics, a lot of public programs, housing, and jobs will be unavailable to them.
So let’s hope the follow-through on the sentence reductions will be as good as the build-up to it.
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With all the money saved by letting people out of jail sooner, how about diverting it to training programs, drug-treatment, mental health, work study, housing, and all the myriad things people being released from jail are going to need to get a foot up? Only in this way will the reduced sentences not only be a boon for the individual inmates but for society in general.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.