Florida Could Limit Prison Growth by Turning to its Drug Courts

The first drug court in the United States was formed in Miami-Dade County in 1989. Since then, Florida has increased that number to 106 drug courts, with at least one in every judicial circuit. In 2011, drug courts in Florida saw about 10,000 participants. The felony recidivism rate for drug court participants is 12 percent, compared to the control group’s rate of 40 percent. Florida continues to expand its problem-solving courts, including Veterans’ Courts and Mental Health Courts.


In many other states where drug courts have blossomed (like Texas), incarceration and recidivism rates have been in decline. Despite being a leader and innovator in problem-solving courts, however, Florida’s prison population has grown at a rate of 11.4 times between 1990 and 2009, while its population in general increased only 2.7 times.

Part of the problem may be that despite being a leader in problem-solving courts, Florida still has some of the strictest mandatory minimum sentencing laws in the county, including for drug offenses. In fact, a person could very well end up spending more time in prison for a drug offense than for manslaughter.

This backwards prioritizing is costing Florida taxpayers millions of dollars. Indeed, in 2010, the Florida Department of Corrections was “housing 5,135 inmates serving mandatory drug sentences,” said DOC spokeswoman Jo Ellen Rackleff. At a cost of $20,108 per year to keep an inmate in prison, mandatory drug sentences were costing Florida almost $103 million.

Florida already has many tools it could use in order to implement more effective, efficient, and affordable alternatives to incarceration, particularly for those addicted to drugs. Drug courts have worked, and continue to work in Florida. It is time for policy-makers in Florida to do their part in reforming the mandatory minimum-sentencing laws that are costing taxpayers millions of dollars and no longer serving their intended purpose.


Justice Reinvestment Package Signed in Pennsylvania

Earlier this month, Right on Crime posted about Pennsylvania’s Justice Reinvestment Working Group, which was launched with the support of Governor Tom Corbett. The group was created to suggest policies that would reduce corrections spending and reinvest those savings into measures to improve public safety.

Today, Governor Corbett signed into effect the second and final piece of the Working Group’s Reinvestment Legislation package. H.B. 135, which was passed unanimously in both chambers of the legislature, is the follow-up to H.B. 100. Where H.B. 100 included policy changes, H.B. 135 calls for the reinvestment of those savings into county-level law enforcement and incarceration alternatives.

H.B. 135 seeks to reduce both incarceration rates and recidivism. Specifically, it “will use $86 million to directly support many of the initiatives that include increased programming for release for non-violent offenders, expediting programming for short-time non-violent offenders and aggressively utilizing alternative sentencing for non-violent offenders and the increased use of treatment programs.”

Taken together, H.B. 100 and H.B. 135, will have a tremendous effect on Pennsylvania: first, on taxpayers, saving more than $250 million in five years; second, on communities, by creating a more efficient corrections system and making them safer; and finally, on offenders, by allowing for more efficient communication technology to increase parole hearing capacity.

For Governor Corbett, this is part of an ongoing effort to be “as smart as we are tough on crime.” He concludes that by “[w]orking together, we can deal with crime in a way that will redeem more offenders, appropriately incarcerates violent offenders and sexual predators, and keeps us all from being held prisoner to the growing costs of locking up the bad guys.”


How Texas Holds Drug Offenders Accountable

Earlier this year, Governor Rick Perry signed an executive order reauthorizing the Texas Criminal Justice Advisory Council to advise the governor on the creation, staffing, operations and performance of state drug courts.

The order was signed based on the conclusion that “specialty courts, such as drug courts, veterans’ courts, DWI courts, mental health courts and family courts, are believed to be a humane and cost-effective method to prevent nonviolent offenders with substance abuse or mental health problems from unnecessarily entering the criminal justice system.”

These findings were based on the fact that drug court participants in Texas have significantly lower re-arrest rates and re-incarceration rates, and they cost taxpayers significantly less money per participant.

How Texas Holds Drug Offenders Accountable


Waste Not, Want Not?

“Waste not, want not,” may have been the golden rule for many of us growing up, but be careful—you may be breaking the law.

Ryan Adams, a Pflugerville resident, was startled one evening by a loud noise that turned out to be a white-winged dove flying into his window.  Upon examination, Adams found the bird to be dead, having broken his neck in the collision with his home.

Dove-season had started the previous day, quite fortuitously, Adams thought. While most people may have buried or thrown away the bird, Adams decided to make the bird his dinner.  Excited about the delicious meal he had discovered, Adams seasoned and grilled the bird. He was so pleased with his find that he made a blog post about the occasion.

In response to his blog post, Adams received a visit from a game warden from the Texas Parks and Wildlife Department, reprimanding him for eating the bird. The problem, explained Steven Lightfoot, a spokesman for the Texas Parks and Wildlife, is that “[i]t is illegal to possess any wildlife resource that has not been taken legally.” He further added that “[b]y legal I mean there are certain means and methods … you have to have a hunting license and you have to have the appropriate weapon and ammunition.”

Adams was not given a ticket, thanks to the sensible discretion of the game warden.  Next time, however, Adams will have to hand the game over to the Texas Parks and Wildlife. While the game warden’s good judgment gave this story a reasonable outcome, it stills seems bizarre that eating a dead dove from one’s lawn could subject a citizen to punishment by the state.


“The Criminalization of the Practice of Law”

Prosecuting a lawyer for her zealous advocacy of a client may seem like an unlikely, even absurd, case, but that is exactly what happened to attorney Lauren Stevens in 2010. In fact, she was indicted twice.

On November 8, 2010, a grand jury for the United States District Court for the District of Maryland indicted Stevens, former Vice President and Associate General Counsel of GlaxoSmithKline (GSK), on six counts. The charges against her included obstruction of a proceeding, falsification and concealment of documents, and making a false statement.

After that case was dismissed without prejudice in March, due to faulty legal instructions to the grand jurors, Stevens was re-indicted in April.

The accusations arose out of Stevens’ response to a Food and Drug Administration inquiry into GSK’s alleged off-label promotion of the anti-depressant drug Wellbutrin. In drafting responses to the requests, which were not subpoenas, Stevens consulted with in-house counsel and obtained outside counsel.

She was able to provide the court with evidence that she acted with advice of counsel and in good faith. Judge Roger Titus of the U.S. district court in Maryland concluded that “[e]very decision that she made and every letter she wrote was done by a consensus. Now, even if some of these statements were not literally true, it is clear that they were made in good faith, which would negate the requisite element required for all six of the crimes charged in this case.”

On May 10, Judge Titus dismissed the case again, this time with prejudice. Judge Titus opined that “[t]here is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career.”

While this was a reasonable disposition of the case for Judge Titus to make, the problem is that prosecutors were able to get as far as they did. What’s worse, is that Stevens’ case is just an example of a larger problem—that is, if the federal bureaucracy finds it cannot get the company on the underlying issue, then they may resort to prosecuting their in-house counsel or even use the threat of doing so as leverage to exact a settlement.

For Stevens, as she recounted in a conversation with the Law Blog, “It was really hard for me to wrap my head around. The government was able to pierce the attorney-client privilege and get at all the privileged documents from the FDA inquiry, and they tried to make the case that the company had come to me in furtherance of a cover-up or a crime.”

In her view, “the criminalization of the practice of law is here, and I don’t think it’s necessarily going away. The government will continue to be aggressive in looking at in-house counsel. I know sometimes it feels like we have a target on our back.”

In defense of the seemingly wasteful prosecution, Assistant Attorney General Lanny A. Breuer of the Criminal Division, stated, “if we find credible evidence of criminal conduct—by corporate executives or the lawyers and accountants who advise them—we will not hesitate to charge it.”

However, cases like Lauren Stevens’ leaves one wondering what that standard of “credible” is, and how far the criminalization of individuals for underlying corporate conduct could go.


Occupational Licensing Reform is a Criminal Justice Issue

The Atlantic published a great article last month titled “How Licensing Laws Kill Jobs.” The article calls on states to promote employment and economic growth through licensing regulation reform. But senseless, overly burdensome licensing requirements are not only harming the economy, they are also harming the criminal justice system by wasting prosecutorial resources on trivial “crimes” and by preventing ex-offenders from re-entering the work-force.

Licensing, within reasonable limits, can be a good way to ensure that potentially dangerous work is done safely and properly. That said, there are now more than 800 occupations that require a license in at least one state. Almost one out of every three workers needs an occupational license. This is not because one in three jobs is dangerous or the public demands government regulation of the profession. Instead, it is largely the result of industry lobbying for laws that limit competition.

Licensing requirements vary tremendously from state to state, further evidence that many of the licensing schemes are not targeted at specific, targeted health and safety problems that need to be regulated. For example, a manicurist in Alaska must have three days of training, but in Alabama, 163 days of training are required.  There does not appear to be any evidence that manicures in Alaska are vastly riskier to public health than manicures in Alabama.

Some of the licensing requirements would be laughable, if only they didn’t hurt so many people.  One needless cosmetology licensing scheme in Utah prevented Jestina Clayton from braiding hair because she didn’t have a cosmetology license. Clayton is a refugee from Sierra Leone with an expertise in hair braiding—a subject that is not taught in the Utah cosmetology coursework.

In five states, shampooers require licensing. In Texas, a 2008 law required computer repair technicians to be licensed as private investigators.  In Louisiana, florists need to be licensed. In Oregon, even a little girl’s lemonade stand was shut down because she wasn’t licensed.

These licensing schemes are preventing thousands, of people from working.  Note, for instance, that when Mississippi changed its licensing requirement for braiders to a registration requirement, more than 300 braiders registered.

In addition to damaging the economy, these policies play a harmful role in the criminal justice system.  First, many licensing requirements have an unnecessary criminal penalty—subjecting violators to heavy fines and even jail time.  Unlicensed shampooers should not be treated as criminals. Criminal prosecutions for such violations are a waste of valuable state resources.

Second, many of the professions that have high entry barriers due to licensing requirements are often excellent professions for ex-offenders trying to put their lives back together. Careers as locksmiths, cosmetologists, or florists are in demand among ex-offenders seeking to become productive, tax-paying members of society.

Every state in America needs to review its existing licensing laws, and legislatures need to determine whether the requirements are actually serving the purpose licensing is meant to further—public safety.  In many instances, viable alternatives—such as registration, inspections, or private certification—are readily available.


Pennsylvania’s Justice Reinvestment Working Group

Pennsylvania’s prison population has grown continually since 1982, in part due to the increasing number of non-violent offenders who are admitted and high failure rates among people under community supervision. These high re-incarceration rates may be due in part to inmates receiving ineffective programming.

In 2011, Governor Tom Corbett, Chief Justice Ronald Castille, the chairs of the House and Senate Judiciary Committees, and other state leaders requested technical assistance from the Pew Center on the States and the U.S. Department of Justice Bureau of Justice Assistance. Together, they launched Pennsylvania’s Justice Reinvestment Working Group.

This program was established under the Pennsylvania Commission on Crime and Delinquency.  It includes state cabinet secretaries, Republican and Democratic lawmakers, court officials, and other stakeholders in the criminal justice system. Extensive data from state agencies and organizations is compiled, analyzed, and presented to the group, which suggests policies aimed at reducing corrections spending. The savings are then reinvested into measures (e.g., electronic monitoring, problem-solving courts, reentry resources) to improve public safety.

This bipartisan project is part of a national project by the Council of State Governments Justice Center that has so far been adopted in seventeen states. CSG’s goal is to help states design “policies to manage the growth of the corrections system, improve the accountability and integration of resources concentrated in particular communities, and reinvest a portion of the savings generated from these efforts to make communities receiving the majority of people released from prison safer, stronger, and healthier”


Former Prisoners turned Entrepreneurs through Private Programs

Defy Ventures describes its program as “MBA-like training, real business plan competitions, and real money.” While such a program would likely grab the attention of many would-be-entrepreneurs, the unique thing about Defy is that their students are all former prisoners.

Defy Ventures is a New York based non-profit organization whose managers recognize that “many former drug dealers and gang leaders share similar skill sets and talents with top business leaders.” For example, one student, Jose Vasquez, a former drug dealer, knew that the way to differentiate himself from other drug dealers was to make his customers happy—taking them to dinner, buying them birthday presents. Today, he runs Happy Vida, a concierge service running errands for New York Professionals.

Defy Ventures helps ambitious former prisoners by providing a one-year entrepreneurial training and mentorship program. According to Defy’s website, the program offers participants a 45-day introductory training during evenings and weekends, after which they may be one of the 60 committed applicants who will qualify for a prestigious internship with Defy. The internship provides them with the chance to pitch a business concept to investors for a 1 in 4 shot at winning $3,000 in seed funding. Ultimately, participants present their results to investors in a final business plan competition where $100,000 in additional funding is on the table.

Catherine Rohr, Defy’s founder and CEO, teaches participants not only the textbook knowledge needed to run a company, but also interpersonal skills—such as smiling and handshakes. With the help of supportive funders, volunteers, mentors, and a devoted private sector network, Defy has helped start twenty-one businesses since its founding in 2010.

In 2004, Catherine Rohr founded a similar program in Texas called Prison Entrepreneurship Program (PEP). While Rohr is no longer involved with PEP, its mission continues. PEP starts with applicants who are currently in prison, and after a competitive process, transfers eligible prisoners to the Cleveland Correctional Facility, out of which PEP operates. After training and being reintegrated into society, PEP boasts a return-to-prison rate of less than 5%, an employment rate of 100% within 90 days, and over 100 businesses launched.


A Report from the Federalist Society on Mens Rea

It used to be that all crimes required two basic elements: an actus reus (a prohibited act) and a mens rea (a guilty mind). In recent years, however, there have been a growing number of strict liability crimes that dispense with the mens rea element in state criminal codes.

This summer, the Federalist Society released a survey of state mens rea requirements by Professor John S. Baker, Jr. It begins by tracing the history of mens rea requirements and the rise of strict liability offenses. The history highlights the Model Penal Code’s (MPC) introduction of a default mens rea provision.

The MPC requires that for all crimes without an explicit culpable mental state, and without language clearly dispensing of one, the default mental requirement shall be “purposely, knowingly, or recklessly.” This provision was intended to guarantee that a culpable mental state remained a necessary element for any crime. The study concludes, however, that the MPC’s default mens rea provision has actually had the effect of weakening the role of the mental state in state criminal law.

The study offers three reasons for this paradox. First, the MPC has “‘purposely’ stripped culpability of its normative quality.” Second, “[c]odification freed state legislatures from a sense of obligation to common-law principles.” Third, states that have not followed the MPC’s strict distinction between crime and violation have problematically “opened up possibilities of interpretation by the courts.”

The survey focuses on the fourteen states that have adopted the MPC mens rea provision or a similar provision, and it points out some of the common problems the states’ courts have faced when interpreting the requirement.

Among these problems are the courts’ struggles to interpret legislative intent and a disparity in how much analysis appellate courts do when determining legislative intent. It highlights concerns that courts have about defendants’ constitutional challenges for vagueness or due process violations, concerns about non-blameworthy conduct being criminalized, and the provision’s applicability outside of the criminal code.

Finally, the study encourages states to reassess the adequacy of the MPC’s default mens rea framework. It suggests that the “erosion of mens rea since the advent of the MPC” requires that particular rules need to “reflect the primacy of the principle of mens rea in criminal law.”


Website Allows Users to See Full Legal Consequences of Criminal Records

A new website, launched by the American Bar Association and the Department of Justice’s National Institute of Justice, is revealing many of the overlooked punishments that accompany criminal convictions—those punishments not administered by the court. The website, Collateral Consequences, gives users a resource to find, in one place, all federal and state legal consequences of a criminal record.

For example, after a guilty plea, former offenders often find themselves unable to vote, unable to work in many professions, and even unable to live where they want to live. These lifelong punishments are often unknown at the time one is considering entering a plea.

As Daryl Atkinson, a staff attorney with the Southern Coalition for Social Justice, reflected after his prison term, forty months of incarceration was “a blip on the radar screen of life…[and yet] when I’m released I face this web of invisible punishments that I knew nothing about.”

While “collateral consequences” have always been a part of our legal system, the ABA and DOJ note that over the past twenty years, they have become more problematic because “they are more numerous and more severe, they affect more people, and they are harder to avoid or mitigate.”

Collateral Consequences is meant to provide a resource for those accused of crimes and their lawyers. The website allows users to search state and federal laws that would affect the ability of people with criminal records to reenter society. Users can search by state, types of restrictions, and types of offenses.

So far, the website includes information on state laws in nine states: Colorado, Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina, and New York. The remaining states are expected to be added within 18 months.

The DOJ and ABA hope the website will be used by those facing a potential life-long criminal record to be aware of the “legal limbo” they may face before they are caught in it.