More Good News

Yesterday I blogged about the defendant friendly triple play from Supreme Court. Today, the hits kept on coming, this time from the Sentencing Commission. Last month, an amendment to the crack cocaine guideline went into effect that essentially lowers crack sentences across the board. For the technically minded - the amendment reset the drug weight ranges and base offense levels so that the same amount of crack now produces a base offense level that is two levels lower than before. The basis for the amendment, according to the Commission, was the inherent unfairness in the current guideline and the fact that it did not adequately represent the seriousness of the offense, particularly compared to the powder cocaine guideline. That amendment kicked in on November 1 and applies to anybody who gets sentenced thereafter.

The Sentencing Commission left open the question of whether the amendment would apply retroactively to defendants who had already been sentenced. Generally, folks whose cases are "final" (i.e., done with direct appeals, up to and including the Supremes) don't get the benefit of guideline amendments unless the Commission explicitly makes them retroactive, as has been done in the past for other changes in the drug guidelines. However, given the sheer numbers of people that would be effected, the Commission went slowly this time and had a lengthy public hearing on the issue last month.

Thankfully, the Commission has concluded that simple fairness requires retroactivity and voted unanimously today to make the amendment retroactive. This will go into effect in March of next year, which will give those of us in the defense community a little while to figure out how it's all going to work out. I haven't seen the Commission's policy statement regarding the amendment, but there will need to be some Booker application issues resolved in the early litigation.

Today's action by the Commission will result in some people being released from prison more quickly than they otherwise would have been, although it's not likely to be the flood of armed violent thugs portrayed by the Department of Justice at the Commission's retroactivity hearing. Nevertheless, they will be part of growing number of ex-cons being released from America's increasingly crowded prison system.

That makes this article (h/t SL&P) from US News and World Report particularly timely. It's about the difficulty ex-cons face in getting back into society and not ending up back in prison:

Getting cons to stay ex-cons has long been one of the most vexing challenges of the criminal justice system. One out of every 31 American adults is in jail, on parole, or on probation, and the central reality is this: Nearly everyone who enters the prison system eventually gets out. The problem is, most of those ex-offenders quickly find themselves back inside. Today, ending the cycle of recidivism has become an increasingly urgent problem as communities nationwide are forced to absorb record numbers of prisoners who also often struggle with addiction and other illness.

One example of the problems they face:

Building the skin of an airplane is a craft with little tolerance for failure. The rivets that bind the sheets of aluminum must be set cleanly, without burrs or scratches, because just one faulty patch of skin can rip apart an airplane in flight.

The instructors who teach these skills at the minimum-security Winfield Correctional Facility outside Wichita, Kan., have little tolerance for failure, as well. It takes years of good behavior for a prisoner to land a coveted spot in this class, which certifies participants as aircraft sheet metal workers. Yet, as good as they are, the inmates' skills don't guarantee them a job when they get out. Indeed, although subcontractors might accept them, none of the five airplane manufacturing plants that ring Wichita hire ex-felons.

Employment is particularly important:

Holding a job remains the best predictor of success for ex-cons, and employer surveys have found about 80 percent of ex-cons to be diligent, trustworthy, and dependable. Yet employers are still reluctant to hire them. They risk having employees who can be at worst violent and at best antisocial and reap few benefits in return. Employers are eligible for tax credits, and the federal government does bond former inmates up to a few thousand dollars, but small businesses often find the paperwork more trouble than it's worth.

The vicious circle that exists should be obvious: the best way for an ex-con to reintegrate into society is to find steady employment, but employers are reluctant to hire ex-cons. Unable to gain a toehold back in the mainstream of society, ex-cons drift back into old patterns of illegal behavior. In some cases, maintaining employment is a requirement of parole or supervised release and the failure to keep a job in and of itself will land the ex-con back in prison.

No politician will want for votes by being "tough on crime." But that's a front end strategy, not a long term solution. As the article makes clear, damn near everybody in prison will get out someday. It's to all of our benefit if they make a go of it the second (or third or . . .) time around.