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By Nkechi Taifa, Senior Policy Analyst at The Open Society Policy Center and the author of an ACS Issue Brief, "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?"

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For nearly a quarter of a century the disparity between crack and powder cocaine sentencing has stood out as one of the most notorious illustrations of unfairness in the criminal justice system. Since 1986 low-level crack cocaine offenders selling sugar packet and candy-bar-weight quantities of crack cocaine have been punished far more severely than their counterparts who trafficked in large-scale quantities of powder cocaine. For example, one who possessed just 5 grams of crack cocaine received a mandatory felony sentence of at least five years without parole in federal prison, yet one selling 100 times that amount of powder cocaine -- 500 grams -- received the same five-year sentence. Far from being "tough on crime," this 100:1 quantity ratio of low level crack prosecutions amounted to what has been described as "junk food justice," primarily impacting African Americans at the bottom rung of the drug chain.

As a result of bipartisan legislation passed by Congress and signed into law by President Obama on August 3, the five-year sentence for simple possession of crack cocaine has been eliminated. This represents the first time in 40 years that a federal mandatory minimum sentence has been repealed, making the Fair Sentencing Act (S. 1789) a historic legislative achievement. Although advocates fought long and hard for the complete elimination of disparate treatment in crack cocaine sentencing, the Act significantly lowered the 100:1 ratio for distribution of crack to 18:1. While not ideal, achieving this reduction with agreement across the political spectrum was extraordinary, particularly with mid-term elections looming. The new 18:1 ratio will bring relief to nearly 3,000 cases a year, reduce crack sentences by nearly 30 months and, according to the Congressional Budget Office, save the federal government $42 million dollars over a five year period.

Rare bipartisan consensus in support of drug sentencing reform was the catalyst in the passage of the Fair Sentencing Act. Widespread agreement from not only civil rights and criminal justice groups that have historically worked on the issue, but also support from the White House and Justice Department, law enforcement and prosecutors, and political and religious conservatives, was influential. Partisan politics was tabled as Senators and Representatives from both sides of the aisle spoke to the critical need for reform. Rather than the political posturing of "tougher than thou" on crime, the overriding sentiment became "smarter on crime." A groundswell of bipartisan support culminated in "cracking" the disparity, and now it is critical that these same champions come together to support continued reform.

Despite significant improvements made by the Fair Sentencing Act, its application is not retroactive and, absent intervention, those currently incarcerated pursuant to the previous, flawed sentencing scheme will receive no relief. It is incumbent that a bipartisan body of conservatives and progressives, inclusive of sentencing experts, law enforcement professionals, academicians and advocates formally come together to brainstorm relief mechanisms that the U.S. Sentencing Commission, Congress, the Department of Justice, and the President can take to ensure that the fairer sentences that are now the law of the land apply retroactively as well.

For example, the President has the unique power to correct historical injustices through the presidential pardon powder. Hamedah Hasan, a grandmother serving the 17th of a 27-year federal prison sentence for a non-violent crime involving crack cocaine, filed a commutation petition to President Obama earlier this year, after exhausting all other legal remedies. Hasan unquestionably deserves relief. However, rather than the proliferation of individual petitions such as Hasan's, creative recommendations can be advanced such as blanket commutations that extend across the class of incarcerated people currently imprisoned under a law now established as unjust.

Just as there was strong bipartisan energy for the passage of crack cocaine reform legislation, there must likewise be similar vigor to extend the law's reach to others equally deserving - whether through the presidential pardon power, Sentencing Commission guidelines adjustment, or congressional passage of retroactive legislation. And, importantly, the struggle must continue for the complete elimination of the disparity as we strive towards full fairness and confidence in federal drug sentencing policy.

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Pat Nolan is Vice President of Prison Fellowship, an outreach program to prisoners and their families, and leads the ministry's criminal justice reform arm, Justice Fellowship. For more information about drug policy reform, go to Justice Fellowship's Drug Policy Key Issue Page. 

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In an important victory for justice, President Obama today signed the Fair Sentencing Act of 2010, putting an end to the 100-to-1 disparity between punishments for crack cocaine and powder cocaine.

The passage of the bill was a pivotal point in the fight to correct imbalances in our sentencing laws. The bill repeals a mandatory minimum sentence for the first time since mandatory minimums were introduced in the Nixon administration. It is important to note that this law had the support of Members of Congress from both sides of the aisle who joined forces in a remarkable display of non-partisan solidarity.

A unanimous Senate voted to reform the disparity in March, and the House passed the bill at the end of July. With conservative sponsors such as Tom Coburn and John Cornyn joining progressives like Richard Durbin and Al Franken, Congress finally acted to correct this horrible injustice. Rep. Dan Lungren, a former California Attorney General, delivered a statement to the House endorsing the act, saying, "I believe that this is what justice should be about. This is a well-crafted bill, a good compromise; it serves the ends of justice and fairness."

The bill was also supported by a vast number of associations and advocacy groups of all stripes. The Federal Law Enforcement Officers Association, the National District Attorneys Association and the International Union of Police Associations joined groups such as Prison Fellowship, Families against Mandatory Minimums, the National Association of Evangelicals, CitizenLink of Focus on the Family, members of the Congressional Black Caucus, and Asa Hutchinson, former head of the Drug Enforcement Administration.

The original policy mandated a 10-year minimum sentence for a drug dealer caught with only a candy-bar-size amount of crack. Yet dealers selling powder cocaine had to fill an entire briefcase in order to receive the same 10-year sentence.

Enacted in 1986, the disparity was largely based on the understanding that crack cocaine was more dangerous than powder cocaine because it was instantly addictive and provoked violent behavior. Since then, copious amounts of scientific evidence and U.S. Sentencing Commission analysis have shown these differences to be exaggerated or even false. Sadly, the disparity led to a hugely disproportionate number of black Americans being sentenced under this mandatory minimum law.

Also, the disproportionally harsh crack penalties fell mostly on low-level cocaine offenders, who are at the lowest end of the distribution chain and often have no previous criminal history. According to an analysis by the Criminal Justice Policy Foundation, only 7 percent of federal cocaine cases have been directed at high-level traffickers. Instead, federal authorities have squandered huge amounts of resources on small cogs in the cocaine distribution network: One-third of all federal cocaine cases involve an average of 52 grams - the weight of a candy bar. Not only is this a terrible misuse of federal time and talent, but it has also clogged the federal courts with cases that could be handled easily by the states. To really stop the flood of cocaine entering this country, federal resources should focus on high-level traffickers. Despite its hefty price tag, the crack-powder ratio made no substantial dent in the cocaine trade.

The Fair Sentencing Act of 2010 restores common sense to our drug sentencing system. The 100:1 powder-crack disparity is reduced to just 18:1. The five-year mandatory minimum for simple crack possession is eliminated. The individual circumstances surrounding a drug crime are taken into account, while penalties for major cocaine traffickers are increased. And, the law addresses concerns about violence associated with crack use by recommending a guideline increase for drug crimes involving violence.

Federal laws should reflect the values of liberty, equality and compassion. The enactment of this responsible sentencing reform will advance all of these values. It puts an end to excessive deprivations of freedom; it treats drug offenders with fairness and equality, and it demonstrates compassion for those who commit minor offenses yet deserve a second chance to fulfill their responsibilities to family and community.
The Fair Sentencing Act is a victory for US drug policy, for Americans of every color, and for fairness in the criminal justice system.

[Image courtesy of The White House. President Obama signs the Fair Sentencing Act, surrounded by supporters.]

The House of Representatives this week joined the Senate in passing legislation that would significantly narrow the gap between statutorily mandated sentences for crack cocaine and powder cocaine, "a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks," The New York Times reports.

The Fair Sentencing Act of 2010 now awaits signature from President Barack Obama, who said during the 2008 presidential campaign that the sentencing disparity "disproportionately filled our prisons with young black and Latino drug users."

Under current law, the amount of powder cocaine triggering a mandatory minimum sentence is 100 times as much as the amount of crack cocaine triggering sentencing. The bill was passed in 1986 after a spate of drug-related killings.

The new law would decrease the ratio to 18-1 and eliminate the five-year mandatory minimum sentence for simple possession of crack cocaine.

"Never before have advocates for crack cocaine sentencing reform been so close to the finish line," writes Laura W. Murphy, director of ACLU's Washington Legislative Office, recalling when she convened the first conference on the crack/powder disparity 17 years ago.

"The ACLU has remained steadfast to eliminating the disparity completely," Murphy writes in The Huffington Post. "However, now that the Senate has acted to pass a reform bill that falls short of our ideal, we must confront the reality that it will nonetheless make important improvements in the lives of many people who would have otherwise been locked away for years, or decades, on end."

A statement from the Lawyers' Committee for Civil Rights Under Law also acknowledged that the bill is "not optimal" but applauded the bill's passage as a development that "should not go unnoted."

"The fight is not over," said Lawyers' Committee Public Policy Director Tanya Clay House.

For more on reforming disparities in criminal justice sentencing see video of an ACSblog interview with the Open Society Institute's Senior Policy Analyst Nkechi Taifa. Her interview followed and ACS event on reforming the criminal justice system, including its disparaties in sentencing. Video of the entire panel discussion, "Reorienting Federal Criminal Justice Policy -- An Opportunity for a More Integrative Approach?," is available here.

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By Eugene R. Fidell, President, National Institute of Military Justice (NIMJ); and Florence Rogatz Lecturer in Law and Senior Research Scholar in Law, Yale Law School. The following post is adapted from comments Fidell made during a panel discussion he participated in at the 2010 ACS National Convention. Video of that panel discussion, "Detainees and Justice: Military Commissions versus Trials within the Federal Court System," is available here.

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This post is cross-posted at NIMJ's blog.

In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department's Website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.

I would like to offer a different take -- in part at the 50,000-foot level, but in part a worm's-eye view.

At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice-a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.

Before I get to those factors, it's important to focus on who is "the public" for the purpose of this inquiry. Is it only the American electorate, as Mr. Kris suggested ("the American people need to understand, and have confidence in, all of the tools in the toolbox")? Or does it include people in other democracies, whether or not they have chosen to ally with us in the struggle with al Qaeda? Or does it extend to people who are either quite neutral, or worse yet, favorably disposed to al Qaeda? Let's assume we are talking about a population that at least shares our core values about the rule of law.

So what affects public confidence in the administration of justice?

• Outcomes that are objectively accurate are a good starting place. That only persons who are guilty are found guilty. And of course that the guilty are actually convicted.

• That sentences are within reason.

• That proceedings are conducted with reasonable dispatch.

A system that failed any of these three tests would hardly earn public confidence, however you define the public.

Taking only these three factors into account, how do the military commissions stack up?

Given the handful of cases to date, it does seem that no innocent persons have been convicted, and -- since there have been no acquittals--it is obvious, conversely, that no guilty person has been acquitted.

Sentencing presents a tougher question. Certainly the few sentences that have been handed down have not been draconian. Indeed, some might argue that if anything they have been too lenient, although it is hard to carry the day on that point given the protracted periods of pretrial confinement the accused have experienced. The government tried without success to have the commission reconsider Salim Hamdan's receipt of credit for time served.

Reasonable dispatch is an even harder case to make. Admittedly, the impediments to conducting trials by military commission have been daunting. Because the Bush Administration elected to proceed as it did, without legislation other than the Authorization for Use of Military Force (rather than amending the military commission aspects of the Uniform Code of Military Justice), litigation was certain. The novelty and nature of the issues made Supreme Court review highly likely, with the delay that entails given the Court's reluctance to convene in extraordinary sessions. In addition to its fundamental error of proceeding by Military Order in November 2001, the Bush Administration also reduced its own chances of success in the inevitable litigation by failing to make impracticability findings that any reasonable observer would accept as justifying a departure from civilian procedure or even court-martial procedure, as the Court noted in Hamdan v. Rumsfeld.

And yes, when Congress got into the act by passing the Military Commissions Act of 2006, it ensured further delay since the legislation proved defective, as the Court held in Boumediene v. Rumsfeld, requiring yet additional legislation in 2009.

But set all of that aside. Have the commissions proceeded-allowing for these delays-with what any reasonable observer can call reasonable dispatch-or can we expect that going forward? I think not. Why is that? One explanation is the sheer inconvenience of the place of trial (never mind the expense, as General Charles C. Krulak, retired Commandant of the United States Marine Corps observed a week ago in an extraordinary letter to the editor of The Washington Post). General Krulak commented: "The real absurdity of the Guantanamo boondoggle is that we never needed to spend a dime to create it." He also wrote: "the greatest cost of Guantanamo has been to American global leadership and credibility as a nation that respects the rule of law."

I know of no place under the U.S. flag in which sheer geography imposes such hurdles on counsel and other trial participants. No, it's not easy to make time to visit any client who is behind bars, but in what other setting is the mere act of visiting such a production, with access so pervasively controlled by the government? And I don't mean just getting into the counsel-interview room: I mean getting to the place of detention itself. It may be only 100 miles or so as the crow flies from Miami to Guantanamo, but it might as well be thousands of miles away.

No wonder these cases have taken forever to move forward. Remember, every motion session involves flying in a substantial case of characters: prosecutors, defense counsel, court reporters, translators, paralegals, security personnel, and judges.

Adding to the delay has been the Defense Department's delay in generating the detailed rules to govern the proceedings.

Even if one were to subtract all time attributed to the effective advocacy of detainee counsel such as present Acting Solicitor General Neal Katyal, it is impossible to justify the parade-like pace of these proceedings.

So far I've discussed accuracy in results, reasonableness of sentences, and timeliness. Are there other factors that bear on public confidence in the commissions?

Mr. Kris mentioned certainty as a factor militating in favor of civilian trials. That's true. Numerous observers have commented on the fact that the participants in the Guantanamo commissions seem to be making it up as they go along. We simply don't have a body of military commission precedent on which to draw. Earlier this year, one motions session was convened before the Pentagon issued a manual to replace the outdated one issued in 2007 to implement the 2006 Military Commissions Act. Is it difficult to have confidence in legal proceedings where the rules are announced in midstream. This kind of thing in turn builds in further delay-see above. Mr. Kris thinks uncertainty will recede over time. Maybe it would, if we were willing to give these cases an eternity.

How rules of law are made is itself the kind of thing that contributes to or detracts from public confidence. For those of us who thought we were actively participating in the legislative process that led to enactment of the 2006 MCA, it was a bitter experience to learn that the key elements were being worked out behind closed doors. Much the same happened with the 2009 legislation. But that's Congress, and perhaps there's no difference between what happened in 2006 and 2009-with the target off the radar screen-and how legislation is typically made in this town.

But the legislation was not the end of it. There were also massive implementing rules, about the size of the Montgomery County telephone directory. Numerous students of the military commissions-myself included-were appalled when the Bush Administration mostly dispensed with notice-and-comment rulemaking for the pre-MCA commissions. Earlier this year, the current Administration dispensed with public comment entirely in promulgating the 2010 Manual for Military Commissions, and failing even to issue an explanatory memorandum-which you and I both know exists-setting forth what had changed from the 2007 version. Observers were on their own in trying to find and understand the changes. So much for transparency in structuring the administration of justice by military commissions.

Public access to legal proceedings is another potent factor in fostering or eroding public confidence. Where the place of trial is remote and subject to stringent governmental access controls, one would think those in positions of responsibility would bend over backwards to accommodate and indeed, facilitate, public knowledge of the proceedings. (Remoteness also works a hardship on victims.) What, then, to make of the Defense Department's recent decision to exclude four journalists-including the Miami Herald's indefatigable Carol Rosenberg, the doyenne of the Guantanamo press corps-on the ground that they had published the name of an interrogator who was called as a witness. Their having done so was said to have violated the Guantanamo media ground rules, but the witness was widely known to have been prosecuted by court-martial and indeed had gone public with the media in his own defense. It is preposterous for the Pentagon to have excluded these journalists, partially if not substantially decapitating the Guantanamo press corps, and thereby depriving the American, Canadian and world public of the benefit of their insights. I hope the Pentagon public affairs apparatus relents and that the federal courts do not have to become involved, but whatever the dénouement, public confidence cannot have been served by this episode.

A legal system that is entitled to respect makes it decisions and the parties' submissions available in an organized fashion and a timely manner. I invite you to visit the Defense Department's website for military commissions and draw your own conclusions. The National Institute of Military Justice, which I head, responded by creating a Military Commission Reporter series to give the bench and bar access to the decisions in user-friendly law-reporter format. Why didn't the government do this itself?

What are we and others to make of the fact that Congress elected not to confer military commission appellate jurisdiction on our specialized appellate court for military cases, the U.S. Court of Appeals for the Armed Forces? Does a conscious choice like this-routing cases to another court that seems to have been selected only because it has been highly deferential to the Executive and Congress in Guantanamo-related cases-suggest forum-shopping on the grandest scale? What impact does this kind of transparent legislative ploy have on public confidence here or elsewhere?

Finally, our military commission system revolves around an official called a Convening Authority ("CA"), who decides which cases should be prosecuted. The CA is a familiar figure in American military justice, but military commissions do not have to do with maintaining good order and discipline within our forces; they have to do with punishing non-soldiers on the opposing side. Such an arrangement offends settled human rights norms to which our NATO allies subscribe. If part of what we are after is to earn public confidence among the democratic countries with which we share so much, and on which we rely, having a CA-be he who he may (the incumbent has a sterling reputation)--run the show is self-defeating. The power to make prosecutorial decisions should be vested in an independent prosecutor. This is 2010, not 1942.

Could some of these conditions be fixed in a way that was more likely to foster public confidence? Of course. However, at a certain point it becomes too late; an institution becomes tarnished beyond repair. In the case of the military commissions, it's too late.

I will close with one last, disturbing thought. Increasingly we have seen United States citizens engaging in conduct that is not reasonably distinguishable from the kinds of conduct for which we have chosen the military commission as a forum. Unless we are willing to change our rules and subject holders of U.S. citizenship to trial by military commissions, and I hope we are not, this pattern injects an arbitrary discrimination that will be increasingly hard to justify.

[image via U.S. Army]

A transgender woman imprisoned by the federal government can pursue a constitutional challenge over denial of health care treatment, a U.S. District Court Judge has ruled. U.S. District Judge Joseph L. Tauro in rejecting the Federal Bureau of Prisons' (BOP) motion to dismiss Vanessa Adams' lawsuit, said that prison officials had repeatedly denied Adams' requests for treatment of gender identity disorder (GID) and that the treatment Adams has received does not render the case moot.

Tauro wrote that prison officials "have not disavowed the policy they relied on for four years in support of their claim that Plaintiff was ineligible for hormone therapy because she was not receiving it at the time of her incarceration. Indeed, Defendants defend the policy and, for the purposes of litigation, take the position that the policy does allow the Medical Director to implement hormone treatment to those inmates who have not undergone such treatment prior to incarceration." Adams is being represented by Gay & Lesbian Advocates & Defenders (GLAD), Florida Institutional Legal Services (FILS), the National Center for Lesbian Rights (NCLR) and Bingham McCuthchen LLP. In their lawsuit, the groups argue that BOP's continued rejection of medical treatment is cruel and unusual punishment in violation of the Eighth Amendment.

Shannon Minter, NCLR legal director, lauded Tauro's June 7 ruling. "We're pleased that the judge recognized the inhumanity of the BOP policy, and that Vanessa will have her day in court," Minter said.

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By Dale Ho, Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc.

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Last week, the NAACP Legal Defense & Educational Fund, Inc. (LDF) issued a report entitled Captive Constituents: Prison-Based Gerrymandering and the Distortion of Our Democracy.

As our report explains, "prison-based gerrymandering" is a practice whereby many states and local governments count incarcerated persons as residents of the areas where they are housed when election district lines are drawn. This practice distorts our democratic process by artificially inflating the population count-and thus, the political influence-of the districts where prisons and jails are located. As a result, everyone living outside of those districts suffers a dilution of their voting power.

The easiest way to understand how prison-based gerrymandering undermines the integrity of our political process is to look at how prisons affect local elections. Most (in)famously, during the 2002 election cycle, the town of Anamosa, Iowa was divided into 4 City Council wards of about 1,370 people each. Ward 2, however, contained a state penitentiary that housed over 1,320 prisoners. Thus Ward 2's actual population was comprised of fewer than 60 non-incarcerated residents.

Anamosa's districting plan (pictured) therefore granted the approximately 60 constituents of Ward 2 the same level of political representation accorded to over 1,300 people living in each of the other wards. Remarkably, a man was elected to Anamosa's City Council from Ward 2 on the strength of two write-in votes.

The Anamosa example and others like it across the country make a mockery of the principle of "one person, one vote." Articulated by the Supreme Court in the seminal case Reynolds v. Sims, the one person, one vote principle requires that election districts be comprised of roughly the same number of constituents so that every person receives the same level of representation. As Anamosa illustrates, prison-based gerrymandering contravenes that basic principle of political equality.

Unfortunately, the Anamosa pattern has been replicated throughout the country, and at all levels of government - from school boards to city councils to statewide legislatures. It is a problem that is not limited to any particular region, and that distorts democracy for both rural and urban communities alike.

Undoubtedly, however, the communities that are the most thoroughly victimized by prison-based gerrymandering are urban communities of color-a result of the racial discrimination that infects our nation's criminal justice policies.

African Americans are 12.7 percent of the general population, but are 41.3 percent of the federal and state prison population; nearly 9 percent of all African-American men in their twenties or thirties lives in prison. But members of the disproportionately minority incarcerated population are largely held in areas that are both geographically and demographically far removed from their home communities: in New York, for example, approximately 77 percent of all prisoners are African-American or Latino, but 98 percent of all prison cells are located in disproportionately white State Senate districts. Nationally, rural communities make up only about 20 percent of the U.S. population, but it is estimated that 40 percent of all incarcerated persons are held in facilities located in rural areas.

Thus, in state legislatures across the country, prison-based gerrymandering dilutes minority voting strength and transfers political power from urban communities of color to predominantly white areas. This reliance for political power on an imported, captive, and disfranchised minority population is, unfortunately, all-too reminiscent of the infamous three-fifths compromise.

The unfairness of this phenomenon, as a practical matter, is not lost on most people. And legally, it raises substantial concerns under both Section 2 of the federal Voting Rights Act and the United States Constitution. But some argue that incarcerated individuals should be counted where they are physically present because communities that host prisons are required to provide services to inmates.

The reality, however, is that incarcerated individuals are not residents of the communities in which they are housed, as nearly every state has a constitutional or statutory provision stating that a person does not gain or lose residence by virtue of incarceration. In New York, for instance, Article II, Section 4 of the State Constitution provides: "For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence . . . while confined in any public prison." If incarcerated persons are not residents of the places where they are held, it hardly makes sense to consider them constituents there.

And while communities that host prisons are clearly entitled to the resources that are necessary to run large prisons (and already receive an economic boost in the form of prison-related jobs), there is no reason for those communities to also receive an enhanced voice in the political process.

The rules on residency comport with basic common sense: incarcerated individuals cannot integrate into the surrounding community or build enduring ties there. They cannot utilize local services such as parks, libraries, or roads. They are not there voluntarily, and can be moved at any time at the discretion of the state. They cannot participate in local civic life - and, tellingly, in the two states where prisoners can vote without limitation (Maine and Vermont), they do so by absentee ballot in their home communities, not in the prison districts. They are not "constituents" of those districts in any normal sense of the word.

Earlier this year, Maryland became the first state in the country to definitively reject prison-based gerrymandering for the upcoming redistricting cycle, by passing the "No Representation Without Population Act."

Other states should enact similar legislation and take advantage of the Census Bureau's recent decision to release data on prison populations in time for the next redistricting cycle. For state and local governments, doing so would not only mark a reaffirmation of principles of democracy and political equality, it would also eliminate a potential source of legal liability in the always-contentious redistricting process.

For more information on prison-based gerrymandering, please read our full report, or visit our website, or visit the websites of our partners in the campaign to end prison-based gerrymandering: the Prison Policy Initiative, Dēmos and the Brennan Center for Justice.

[image via Prison Policy Initiative]

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By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.

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Wielding the Eighth Amendment as a sword, the Supreme Court in Graham v. Florida outlawed as "cruel and unusual" punishment the imposition of life without parole sentences for all persons convicted of non-homicide offenses when they were juveniles (17 and younger). The Court held that life sentences for juveniles who do not kill violate the Eighth Amendment unless such juveniles have "some meaningful opportunity" to seek release by demonstrating rehabilitation and reform.

Terrance Jamar Ghaham was 17 years old at the time he violated his probation on an armed burglary offense. He was sentenced to life imprisonment by a trial judge who concluded that Graham was incorrigible despite recommendations of limited term sentences by the Department of Corrections and the State prosecutor. Since Florida had abolished its parole system for all crimes, the life sentence left Graham with no opportunity for release for the rest of his life barring executive clemency. Graham's Eighth Amendment challenge to his sentence was rejected on appeal to the Florida District Court of Appeal, which concluded that Graham was "incapable of rehabilitation." In an opinion by Justice Kennedy, the Supreme Court reversed, finding such sentences so disproportionate and rare that they could not bear the weight of the Eighth Amendment.

That the Eighth Amendment's ban on cruel and unusual punishments extends to prison sentences has been treated as settled law for 100 years until the appointment of the current crop of arch-conservatives to the Court, led by Scalia and Thomas, who, joined by Justice Alito, dissented in Graham. Their view is that the original meaning of the Eighth Amendment was limited to outrageous methods of punishment such as torture and did not extend to the proportionality of prison sentences, which, according to their theory, was left to the limitless discretion of State and federal legislative bodies. The majority in Graham takes a quite different approach. In a complete rejection of the dissenters' rigid and narrow reading of "cruel and unusual punishments," the Court reaffirms once again that "courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.'" Inherent in this process is an inquiry into "proportionality," which is "central to the Eighth Amendment."

The Court did not stop at reaffirming the application of an Eighth Amendment proportionality calculus to prison sentences, however. For the first time the Court subjected a prison sentence to categorical restrictions, in this case outlawing all life without parole sentences for non-homicide juvenile offenders. While the use of categorical rules to enforce the Eighth Amendment is not new when applied to the death penalty, its application to the terms of a prison sentence is both new and noteworthy. Before Graham, the conventional wisdom limited categorical restrictions to certain classes of offenders only when sentenced to death. Indeed, the Court concedes that it has not considered previously a categorical challenge to a term-of-years prison sentence. Nonetheless, while acknowledging that "death is different" than any prison sentence, the Court found that "life without parole sentences share some characteristics with death sentences that are shared by no other offenders." These common characteristics include that "the sentence alters the offenders life by a forfeiture that is irrevocable," and deprives the offender of "the most basic liberties without hope of restoration."

The Court cites Florida's juvenile sentencing practices as examples of why Eighth Amendment guarantees for juvenile offenders cannot be adequately protected from arbitrary sentencing decisions in the absence of a categorical prohibition. The Court found nothing in the Florida law that prevented its courts from sentencing a juvenile non-homicide offender such as Graham to life without parole based on a "subjective judgment" that the defendant's crimes demonstrate a character that is irreversibly depraved and not subject to reform. Under the Eighth Amendment, the sentencing court cannot be allowed to base its sentence on subjective assumptions that a juvenile is beyond hope. As the Court said when it outlawed the death penalty for juveniles in Roper v. Simmons, "it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."

The Court viewed these life without parole sentences as the equivalent of being sentenced to die in prison, which was constitutionally unacceptable for non-homicide offenses given most juveniles inherent potential for rehabilitation as they mature. Even crimes of violence, including rape, did not warrant life without parole, and the Court was unwilling to leave juveniles who had not killed at the risk of overzealous state officials mistakenly imposing such an irreversible sentence for reasons of passion or prejudice. Indeed, the Court makes special mention of the facts in Sullivan v. Florida, the companion case argued the same day as Graham, as a second example of how Florida sentencing practices were insufficient to protect juveniles who were not killers from unconstitutionally cruel punishments. (Sullivan's petition was dismissed as improvidently granted, presumably for procedural reasons unrelated to the merits.) Although Sullivan was only 13 years old when sentenced to life without parole, his crime was rape, a crime of violence arguably more heinous than Graham's crimes. Nonetheless, the Court made clear that sentences such as Sullivan's were imposed "based only on a discretionary, subjective judgment by a judge or jury that the offender is irredeemably depraved," and such systems are not capable of preventing life without parole sentences "despite insufficient culpability." While acknowledging that categorical rules tend to be imperfect, the Court concluded that a "clear line" is necessary to eliminate an undue risk of irreversible life sentences for minors who do not kill and whose capacity for change and growth cannot be accurately measured by society.

Not only are minors at risk of arbitrary life without parole sentences in the absence of Eighth Amendment limitations, the Court had little difficulty in finding a national consensus opposed to the use of such sentences. Such a consensus demonstrates how rare and, hence, "unusual" it is for states to employ such punishments. The Court found convincing that there are only 129 juvenile non-homicide offenders serving life without parole sentences in the U.S., with 77 of those imprisoned in Florida and the remainder in just 10 states and the federal system. The Court discounted the fact that the sentencing laws in 37 States allow for such sentences, reasoning that it was never imposed in 27 of those states. According the Court in Graham, the mere fact that such a sentence is theoretically possible under general statutory sentencing schemes does not necessarily mean that legislators deliberately concluded that such a sentence was appropriate. For example, Florida acknowledged at oral argument that even a 5 year old could receive a life without parole sentence under the letter of the law, but it does not follow that such a penalty was endorsed through deliberate and full legislative consideration merely because the legislature voted for a system that in general makes juveniles eligible for life without parole sentences. The Court made clear in Graham that actual sentencing practices are a more important component of the consensus inquiry than looking at the face of legislation. Indeed, that it was seldom used when it was available was further evidence that the sentence was disfavored by state criminal justice systems. Concluding that life without parole sentences for juveniles who do not kill were exceedingly rare, the Court ruled that a national consensus had developed against it.

Support for the Court's conclusion was provided by international opinion. While not controlling as authority, the Court followed its "longstanding practice" of noting the global consensus against life without parole sentences for non-lethal crimes committed by persons under the age of 18. In fact, the U.S. is the only nation in the world that imposes life without parole sentences on juvenile non-homicide offenders. Moreover, Article 37(a) of the United Nations Convention on the Rights of the Child, ratified in 1989 by all countries of the world except the U.S., prohibits the imposition of life imprisonment without the possibility of release for offenses committed by persons below 18 years of age.

While the Court's decision in Graham forbids government from throwing away the key when it locks up juveniles who are not killers, it is also important to keep in mind what the decision does not do. First, it does not explicitly address the constitutionality of lengthy prison sentences of a definite term that are imposed without the possibility of parole. Second, Graham does not guarantee the release of juveniles during their natural lives, only that juveniles sentenced to life for non-homicide offenses must be given "some realistic opportunity" to obtain release based on demonstrated maturity and rehabilitation.

On the other hand Graham does forbid the State from making judgments at the time of sentencing that these juvenile offenders will never be fit to reenter society. Preserving some glimmer of hope for minors who could spend the rest of their lives in prison seems a small price to pay for not deferring to the opinions of 18th Century slave owners on what punishments transgress Eighth Amendment standards of humane treatment. As the Court in Graham reminds us, it is an "essential principle" under the Eighth Amendment that "the State must respect the human attributes even of those who have committed serious crimes."

 

Most states and local governments are counting prisoners in creating election districts, maintains a report released today by the NAACP Legal Defense and Educational Fund, Inc. (LDF).

In "Captive Constituents," the LDF notes that "most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there."

"This practice is known as ‘prison-based gerrymandering,' and it distorts our democratic process by artificially inflating the population count - and thus, the political influence - of the districts where prisons and jails are located," said John Payton, LDF president and director-counsel, said in a press statement about the report."

The full report is available here.

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By Jody Kent and Beth Colgan. Kent is director and national coordinator of the Campaign for the Fair Sentencing of Youth, and Colgan is the managing attorney of the Institutions Project at Columbia Legal Services. Kent and Colgan are authors of an Issue Brief recently published by ACS called "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole."

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The U.S. Supreme Court's recent decision in Graham v. Florida, has conclusively established that for the purposes of the Eighth Amendment, youth are different-and therefore are afforded greater protections-than adults. In establishing a categorical ban on sentencing youth who have committed non-homicide offenses to life in prison without the possibility of parole (whether the constitution prohibits the sentence in homicide cases was not in front of the Court), the Court relied on longstanding precedent related to the Cruel and Unusual Punishments Clause, which "underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." (7)

The human attributes at issue in Graham, were the unique characteristics of youth. As in its 2005 opinion in Roper v. Simmons, which outlawed the imposition of the death penalty against minors, the Court looked to psychosocial and scientific research that show "fundamental differences between juvenile and adult minds" linked to decision making, moral reasoning, and culpability. (17) As Amici including the American Psychological Association, American Psychiatric Association, American Medical Association and American Academy of Child and Adolescent Psychiatry explained in detail, as a result of anatomical differences between juvenile and adult brains and differing degrees of psychosocial development, youth do not have adult levels of judgment, impulse control, or the ability to assess risks. These same differences mean that youth are more amenable than adults to positive character development and rehabilitation.

That those unique qualities of youth make it impossible for a judge to know at sentencing whether a youth is truly incorrigible, or whether he or she may someday be rehabilitated and redeemed, resonated throughout the Court's opinion. (22) That principle led the majority to conclude that a categorical ban on the sentence was required. While Chief Justice John Roberts joined the majority in concluding that youth must be afforded greater protections under the Eighth Amendment than adults, in his concurring opinion, he argued that a case-by-case proportionality analysis where age is considered at sentencing was a sufficient remedy. In the majority opinion, however, Justice Anthony Kennedy rejected such an approach, writing that the courts could not "with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change." (27)

In addition to ensuring that decisions about a youth's amenability to rehabilitation are not made when his or her character is not yet formed, the categorical ban instituted by the Court has the benefit of eliminating the arbitrary nature by which the sentence has been imposed. In our May 2010 Issue Brief, we set forth data showing that the sentencing of youth to life in prison without the possibility of parole is applied inconsistently and arbitrarily, particularly against youth who are first time offenders, youth who live in particular geographic regions, and youth of color. While the Graham ruling does not remedy these problems for youth sentenced in homicide cases, it does ensure that for youth convicted in non-homicides, the risk of arbitrary application of a life without parole sentence is abolished.

While the Court's ruling that the Eighth Amendment forbids States "from making the judgment at the outset that those offenders never will be fit to reenter society," (24) the second chance afforded to some youth by the Court does not guarantee release from prison. Consistent with the recommendation we made in our Issue Brief, under Graham, the Court requires States to provide juvenile offenders convicted of non-homicide offenses with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (24) Only those who are able to demonstrate such a change would be released.

The Court's rationale is sound. While Graham provides important relief for some youth, States may still subject youth who commit homicide with a life without parole sentence--one that "forswears altogether the rehabilitative ideal." (23) However, the basis of the decision-that the fundamental differences between youth and adults make youth less culpable and more amenable to rehabilitation-are true of all youth, even those convicted in homicide cases. Even those youth may become rehabilitated and redeemed, a fact that cannot be determined at the time of sentencing. As such, we urge States and the federal government to reform existing laws not just to comport with Graham, but to ensure that all youth have a meaningful opportunity to earn release in a manner that holds youth who commit serious crimes accountable, while still recognizing their inherent capacity for change.

 

 

 

The Obama administration's recently released drug control strategy has drawn some plaudits for shifting from prior administrations' policies of focusing almost exclusively on punishing suppliers.

Although Harold Pollack in an article for The New Republic says the policy, released last week, still focuses too much on the supply-side, he maintained, "America's drug policies just got a whole lot better." Pollack says the policy released by the Office of National Drug Control Policy (ONDCP) still continues to "spend billions on operations against drug suppliers which have little demonstrated value."

But, in his TNR article, Pollack says ONDCP head Gil Kerlikowske (pictured with President Obama) should be credited with limiting the "traditional blunderbuss rhetoric of American drug policy." Pollack continues, "This change is matched by Kerlikowske's personal inclusiveness and civility, traits that his Republican predecessor John Walters - who is known for alienating liberals and conservatives alike with his ecumenical disregards for opposing views - certainly did not possess.

Even before the release of the ONDCP's 2010 National Drug Strategy, Newsweek reported on a leaked version of it.

In a post for The Reality-Based Community blog, Professor Mark Kleiman discussed the leak, but also noted that the "new strategy can't completely avoid the trap of bowing in the direction of existing programs to get past agency review, and it has its share of pointless quantitative goals (some of them mandated by law). For example, there's no reason to think that the federal government has the capacity to reduce prevalence of drug use by 15%, or that raising the fraction of drugs seized on their way to the U.S. is either feasible or useful."

Kleiman, professor of Public Policy and Director of the Drug Policy Analysis Program at the UCLA School of Public Affairs, however, said the strategy provides a list of positives. He writes:

But the strategy offers a fairly impressive list of innovations to set off against those disappointments. Of course the ones that matter most to me testing-and-sanctions programs for drug-involved offenders (which the "formidable" Bennett and McCaffrey never dared to endorse) and David Kennedy's Drug Market Intervention program designed to eliminate problematic drug markets without mass arrests. Together, those two programs alone would radically reduce the links between drugs and crime, and yet because they're neither "supply" or "demand" programs and have no visceral appeal to either side of the culture wars, they've struggled to get attention.

Rather than just promising to pump more money into the existing drug-treatment machinery, the strategy focuses on the contribution the mainstream health-care effort could make toward dealing with substance abuse, in particular screening, brief intervention, and referral to treatment (SBIRT). The money potentially available for his purpose under the health care bill, and in particular through the community clinic system, dwarfs the formal treatment system. The strategy aims to make sure that potential gets used; if it does, the effective balance between "supply" and "demand" spending would shift radically in fact, though it wouldn't change on paper.

[image via whitehousedrugpolicy.gov]