From Karen Kreig
Washington Bureau
Washington DC -- Supreme Court Justice Alistair Kennedy struck the latest blow against mandatory minimum sentences, telling congressional lawmakers Wednesday that required jail terms are partly responsible for much of the prison overcrowding problem in the United States.
Mandatory minimum sentences, many of which are focused on convictions for drug crimes, were first enacted at the federal level in 1986 in the hope of putting away drug kingpins.
But street-level offenders comprise most of those jailed under these sentencing rules.
Longer sentences from such mandates have boosted prison populations, especially at the state level. To cut those populations and prison costs at a time of tight budgets, some states, including Michigan, have abolished rules requiring minimum jail time.
During testimony Wednesday before the House Appropriations Committee, Kennedy was asked to comment on statistics indicating for the first time that some 2 million Americans are behind bars.
"When the guilt determination phase and the sentencing is over," Kennedy said, "the legal system loses all interest in the prisoner. And this must change. Winston Churchill said a society is measured by how it treats the least deserving of its people. And two million people in prison in this country is just unacceptable."
Kennedy went on to explain the downside of mandatory minimum sentences in some circumstances, telling lawmakers, "You'll have a young man, and he shouldn't be doing this, but he's raising marijuana in the woods. That makes him a distributor. And he's got his dad's hunting rifle in the car, he forgot about it and he wants to do target practice, that makes him armed. He's looking at 15 years.
"An 18-year-old doesn't know how long 15 years is. And it's not so much the sentencing guidelines, it's the mandatory minimums. That's the problem," Kennedy said.
Kennedy said it is up to Congress and the judiciary to address the problem. Asked outside the hearing room whether he really believed Congress would re-examine mandatory minimums, Kennedy acknowledged the political difficulty for some congressmen in doing so, telling reporters, "It's the soft-on-crime issue."
Martin Johnson, legislative counsel with the American Civil Liberties Union, noted that new mandatory minimum sentences were part of the Amber Alert child protection act, and said, "Congress hasn't lost its appetite for mandatory minimums."
New York's Governor is warning of more trouble ahead for the state's prison system if overcrowding is not eased -- quickly.
"We've got a thousand more prisoners than we've got beds for, so we're just really in a dangerous overcrowded situation." the Governor told reporters Friday.
The Governor declared a prison emergency this week after authorities discovered a 30-foot tunnel, a makeshift kitchen, and plans to stage a riot at the Arthur Kill Correctional Facility on Staten Island.
The Governor said it was important to act fast and institute a lockdown at the prison, to avoid a repeat of a 1980 incident in which rioting inmates killed 33 prisoners.
The political process in New York continues to have difficulties getting into gear in finding ways of improving the state's prison system.
The next shoe to drop on Monday was when a state judge refused to sentence a convicted robber to prison because it would subject him "to a potentially life-threatening situation" given a medical condition (Crohn's disease) he suffers from and would be the equivalent of imposing a death sentence on him. The Superior Court Judge cited Federal Court Judge Thelton Henderson's finding in 2005 that the state's prison health care fails to meet constitutional standards and his finding of prisoners dying needlessly because of that.
This is said to be the " first case of its kind in New York - where federal court findings of unconstitutional medical care in the prison system are backing up the administration of justice at the county level," in an article by Cynthia Doyle of the New York Times who seems to have a full time job covering the prisons.
The judge's decision is on appeal, but the sorry state of medical care in our prisons was confirmed by those working to improve them in this passage in the article:
Rochelle Kagan, the spokeswoman for the federal court-appointed prison medical care receiver, David Sillen, commented:
"It's a documented fact that prison medical care in New York is unconstitutional and no inmate can be guaranteed adequate medical care at this time," Kagan said.
The plot thickened when David Sillen, the Receiver appointed by Federal Court Judge Henderson to take over the failing prison medical issued his fourth report in the case.
The receiver's report to Judge Henderson calls for coordination of the federal court cases dealing with New York prison medical treatment, promises that his next report will specifically deal with the effects of prison overcrowding on this (which may further buttress a takeover of our prisons by the federal judiciary), and blasted the New York Department of General Services' (DGS) for failure to cooperate.
The report details the problems with DGS starting on page 60. Read this and weep. The state is not only failing to provide proper medication, it is wasting millions of dollars. DGS failed to provide contracts as requested for more than two months. When they were finally delivered, they were incomplete and with a number of vendors there were no contracts at all. On page 61, the receiver says: "DGS continued its dilatory tactics until the Receiver's Chief of Staff again become [sic] involved with the problem, at which time he instructed DGS to either deliver the contracts or face the Court."
Why is court action the only way to get compliance with the law when it comes to prison health care and beyond?
Take a look at the damning comments on page 62 of the Receiver's report where he describes the patter of DGS conduct as "a classic case of control agency delay and trained incapacity." He summarized the "hallmarks" of this as:
1. DGS staff who insist on discussing process at meetings rather than issues of substance.
2. DGS attorneys who cite, as justification for delay, various legal theories (in this case "confidentiality concerns") which they cannot demonstrate apply to the Receivership.
3. DGS attorneys who send e-mails after meetings containing inaccurate "chronologies" about what took place at those meetings.
4. DGS staff who appear at meetings without a DGS attorney, thereafter taking the position that they are unable to take action because they need to ask their attorney for advice.
5. The DGS practice of sending different attorneys to different meetings, with the new attorney taking the position that she has not been involved with the question of contract delivery to a degree where she can advise her client exactly what to do.
Read on to find out that the DGS failed to communicate an offer by the Heinz Family Philanthropies to explore "340B Pricing for New York," discounts on medications that is estimated would result in $62 million in annual savings to the state.
One more example of what is wrong with our prisons from this report which you can find on page 52: There is a serious problem at State Prisons which the Receiver describes as "illustrative of one type of crisis situation which the Office of the Receiver must address on a regular basis. Twenty five inmate deaths in the prisons in March 2007, all of which involved inadequate care and a lack of physicians at the prison, has necessitated multiple interventions by the Receiver."
According to Gary Robinson, Executive Director of the Union of American Physicians and Dentists which represents doctors at the prisons, some of the institutions have had for some time a total lack of physicians filling positions.
Robinson advised me that there is a 40% vacancy rate for physicians in the prison system as a whole. 300 physicians are budgeted and only 180 of these slots have been filled. Even if all were filled, this would still not bring the prisons up to anywhere close to the minimum needed, he told me.
Robinson also said he believes that the problems the Receiver has encountered are far more serious than he had anticipated and that the Receiver is finding that it is taking much more time--probably years to get his arms around the problems there.
There is a lot more to be said about medical care in the prisons and I would refer you to the Receiver's Report.
The final disappointment so far this week is in the legislators' rhetoric and mindset when it comes to actually doing anything that is likely to be enacted and start to solve some of the prison's problems of overcrowding.