Month: October 2013

Mandatory Minimum Punishments: Do they have a legitimate purpose?

/ Melissa DiRado / Leave a comment

Many federal and state crimes carry a “mandatory minimum” term of imprisonment for any defendant convicted of that crime. In practice, this means that if you are convicted of an offense that carries such a punishment, regardless of any mitigating circumstances in the case, the judge is bound by law to sentence you to the specified mandatory minimum punishment. As I mentioned in my post last week, drug law is one area where mandatory minimums are extremely popular.

Attorney General Eric Holder recently released his intention to reform drug law and do away with many of the mandatory minimum sentences for non-violent drug crimes. Such sentences have ruined countless lives and overcrowded prisons beyond capacity. Jacob Sullum, contributor for Forbes, reported some of these horror stories in his September 18th article. For example, consider, “a 10-year sentence received by an 18-year-old first-time offender caught with less than two ounces of cocaine, a 22-year sentence received by an 24-year-old woman who sold 13.9 grams of crack to a police informant, and a 25-year sentence received by a 46-year-old father of three who sold some of his painkillers to someone he thought was his friend.”[1] While these are only a few examples of the hundreds and thousands of individuals who received similar sentences, they serve as a realistic illustration of the practical application of mandatory minimums for drug crimes. Are these punishments justified? If so, do they enhance safety or serve some other important interest of our society?

It is hard to see what rational basis is served by incarcerating those who, as above, possessed a miniscule amount of drugs. Are these the dangerous criminals in society who deserve to go to jail for 10, 22, and 25 years? One would venture to guess that most people would see the individuals who import the drugs into the U.S. as the ones who deserve these harsh and lengthy prison sentences.

Additionally, we should also think about the nature of drug crimes, particularly possession charges. It is a fairly established fact that drug addiction can destroy someone’s life; if someone has a serious drug addiction, their actions are, many times, the result of their addiction. We know that drug addiction, much like alcoholism, becomes a life long battle for addicts. Do we throw alcoholics in jail for drinking too much? In the drug context, we send those who are caught with drugs on their person to prison for long periods of time in an effort to “rehabilitate” them.

The flip side of the coin of drug arrests, especially for possession, is that many low-level peddlers who receive these steep sentences are selling drugs to earn money. While this is illegal, are their actions as morally culpable as someone who commits a murder?

The over-arching problem here is that mandatory minimum sentences take away a sentencing judge’s ability to tailor the sentence to the circumstances. Under the Sentencing Guidelines, passed in 1986 as part of the Sentencing Reform Act, judges for many crimes are given an advisory range of imprisonment to consider when sentencing a defendant. There are factors the judge must take into account when coming to his conclusion, thus allowing him the flexibility in non-mandatory minimum cases to set an appropriate term of punishment or imprisonment based on the circumstances. However, before United States v. Booker was decided in 2005, these guidelines were mandatory. 545 U.S. 220 (2005). After Booker, the guidelines were deemed only advisory by the Court. Giving a sentencing judge the ability to appropriately tailor a sentence to the circumstances seems to be a cornerstone of our legal system. Our system aims to punish, but only enough to fulfill our goals of punishment (deterrence, incapacitation, etc.).

However, the Sentencing Guidelines were originally instituted to strip judges of this power to tailor an appropriate sentence. The legislature became concerned with the variance in sentencing for the same crime amongst judges. But, have we gone too far in alleviating the judges of this ability? Should judges have discretion to impose a fair sentence in every case, or only some?

Hopefully Eric Holder’s call for change in mandatory minimums for certain drug crimes will spark a wave of change in this area of sentencing law.

 

[1] http://www.forbes.com/sites/jacobsullum/2013/09/19/rand-paul-is-right-about-the-injustice-of-mandatory-drug-minimums/

 

Senate Hearing on Federal Disability Insurance Program

/ Angel Baker / Leave a comment

There is a hearing today on the Federal Disability Insurance Program, which could become the first government benefits program to run out of money. CBS’s 60 Minutes devoted its first segment last night to the upcoming hearing.  The segment features Administrative Law Judges and Senator Tom Coburn of Oklahoma. The Administrative Law Judges stated that attorneys represent many more people now than in the past, and implied this is part of the reason that those people are able to “scam” the system. However, what she failed to mention was that for an unrepresented person, it would be extremely difficult to understand what was needed to show disability. These lawyers are helping people with disabilities, which need this Program to survive, receive benefits that are provided to help them under this Program. Noticeably, absent are people who would have benefited under this program.

 
Furthermore, Senator Coburn stated, “If there’s any job in the economy you can perform, you are not eligible for disability.” However, the statute actually states that disability is the “inability to engage in any substantial activity.” There are many situations (especially for those 50 or older) in which the law itself indicates that they are “disabled” even though they can perform certain jobs. A person 50 years old often can perform work of certain types and still be found “disabled,” because it takes into account many factors, including age, education, and work experience. Furthermore, CBS seemed particularly to sneer at a diagnosis of fibromyalgia because there are not any tests. What they fail to say is that there are criteria for diagnosing it. Specifically, there are 18 trigger points, that when pressed can cause excruciating pain in someone with fibromyalgia. To be diagnosed, you must have that pain in 11 of the 18 spots over a 3 month period, and you have to be diagnosed by an acceptable medical source (an M.D., Psy. D., Ph. D., or a D.O.). Additionally, you must prove that you are no longer capable of doing the work that you used to do because of the fibromyalgia.
There is clearly a problem, not that there is fraud in the system, but that there may not be enough money to continue the system. How should we cover the deficiency?

 

Video of the (three plus hour) hearing, provocatively titled: “Social Security Disability Benefits: Did a Group of Judges, Doctors, and Lawyers Abuse Programs for the Country’s Most Vulnerable?”,can be found here.

For an article criticizing the 60 Minutes segment, see the Los Angeles Times article entitled, “‘60 Minutes’ Shameful Attack on the Disabled.”

For more on the supposed “disability boom,” here is a link to a SLACE Archive post about a This American Life episode titled “Trends with Benefits” and a preview of the episode  from the Planet Money podcast.

Representing the LGBT Community

/ Eric van der Vort / Leave a comment

Towleroad has a round-up of recent discussions that have centered around members of Congress (MCs) who are members of the LGBT community, yet have voted against generally liberal or progressive positions (most recently voting with the GOP majority in the House to ‘shut down’ the government).  This has led to a good deal of debate about the disconnect between LGBT elected officials and the putatively progressive community they are part of.  Michaelangelo Signorile describes the voting behavior in question:

Since taking office, Sinema has voted with the GOP against economic justice issues that progressives, including LGBT activists, view as crucial. Both she and U.S. Rep. Sean Patrick Maloney (D-N.Y.), an openly gay former Clinton aide, also elected for the first time in 2012, have voted with big banks and Wall Street time and again. Right out of the gate, Maloney, who took a lot of Wall Street money, voted with the GOP on the debt ceiling early this year, and actually co-sponsored a bill that would roll back reforms of the very Wall Street practices that led to the economic collapse. He even voted with the GOP to take authority over the Keystone XL project from the president. Like Sinema, he also voted to jeopardize Obamacare or shut down the government. And he too was supported in his election campaign by the Gay and Lesbian Victory Fund, the Human Rights Campaign, and other gay and progressive groups, touted as a progressive.

The assumptions behind the idea that Sinema and Mahoney should vote in accord with liberal or progressive values are, I would argue, fairly faulty.  At the core of this argument is an assertion that there is a connection between liberal or progressive values, on the one hand, and LGBT identity on the other.  While it is true that there is a tendency in the LGBT community to vote for Democrats and Democratic candidates, this is hardly a universal trait and, more critically, is a poor measure for the whole panoply of political attitudes.  Party ID is a useful but blunt measure for policy preferences.  For example, some measures show that in the most recent presidential election, LGBT voters favored President Obama 3 to 1. However, polling done prior to the election indicates that much of this may have more to do with Obama’s favorable stances toward LGBT issues rather than universal approbation of Obama’s or Democratic policies more generally.  As just a few examples: 60% of respondents in the Logo TV poll report supporting the Affordable Care Act while approval ratings among LGBT voters are higher than the general population, but, aside from gay rights issues, the approval ratings for Obama’s handling of health care, general economic issues and unemployment/jobs each hovers around the 60% mark.  These results indicate that perhaps 2/3 of LGBT voters are support or are in agreement with Obama and the Democrats on important issues of the day.

The White House’s record on LGBT rights in general has been strong.  It is equally indisputable that, over time, the Democratic party has grown more friendly to the LGBT community than the Republican party.  The connection that Signorile and others bemoan between liberal or progressive values and LGBT voters, citizens and representatives is not created by attitudes on economic issues, foreign policy and so on.  Rather, as political scientist Kenneth Sherrill has argued, what may be driving much of this partisan loyalty is a sense of shared fate (a sense of group identity or shared consciousness that can lead to perceptions of common interest) — many LGBT voters may default to the Democratic option because of their positons on LGBT issues.  To infer from this that the majority of LGBT individuals share a liberal or progressive outlook is faulty inference.  Normative desires for LGBT representatives who are also ideologically “pure” members of the Democratic coalition are fine, but to turn these into operative assumptions that LGBT voters are primarily or predominantly liberal is a step too far.

Following Windsor, Lawsuits Take Aim At Pennsylvania Same-Sex Marriage Ban.

/ Matthew McKeon / Leave a comment

Like many other states, Pennsylvania bars same-sex marriage by statute.  23 Pa. Cons. Stat. §§ 1102 and 1704 (1996).  Unlike other states, Pennsylvania’s ban is currently being challenged at all levels of government.  This drive is even visible at the local level: Reuters reported that the county clerk of Montgomery County issued more than 170 marriage licenses to same-sex couples between late July and mid-September, when a state court ordered him to stop.  In the state legislature, two representatives in the lower house plan to introduce a bill on October 6 that would override the existing ban and permit same-sex marriages.

While acts of civil disobedience and bold legislative proposals may inspire marriage equality advocates, the Republican governor and the Republican majorities in both houses of the state legislature are unlikely to be so moved.  In the end, the most significant threat to the state ban is a pair of lawsuits filed in two different federal district courts.  Both suits are the direct result of the U.S. Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013).  In Windsor, the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which permitted the federal government to withhold federal recognition for same-sex marriages entered into in states and jurisdictions where same-sex marriage is legal.  Although Justice Anthony Kennedy based the Court’s holding in part on the traditional supremacy of states in regulating marriage, other parts of his reasoning paradoxically provided fertile ground for federal challenges to state same-sex marriage bans.        

The first challenge, Whitewood v. Corbett, was filed in the U.S. District Court for the Middle District of Pennsylvania just days after the Supreme Court handed down its opinion in Windsor.  In their complaint, the plaintiffs challenge Pennsylvania’s ban on same-sex marriage on the grounds that denying same-sex couples the right to marry in Pennsylvania violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.

Quoting Kennedy, the plaintiff’s complaint alleges that the state ban “‘tells [same-sex] couples and all the world- that their relationships are unworthy’ of recognition.”  The complaint also references the part of Kennedy’s reasoning which addressed a significant group of people affected by  government’s refusal to recognize same-sex marriage: the children of same-sex couples.  The plaintiffs claim that the state ban “‘humiliates the…children now being raised by same-sex couples’ and ‘makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” Governor Tom Corbett—himself the primary defendant in Whitewood–has moved to dismiss the case.

The second challenge, Palladino v. Corbett, was filed in the U.S. District Court for the Eastern District of Pennsylvania in late September.  Although a record of their complaint was not available at the time of this article’s posting, Alfred Lubrano of the Philadelphia Inquirer reports that the plaintiffs in Palladino are challenging the state ban on the grounds that it violates Full Faith and Credit.  The plaintiffs, two women who were lawfully married in Massachusetts, assert that it is unconstitutional for Pennsylvania to not recognize their marriage.  While it remains unclear if the plaintiff’s will reference Kennedy’s reasoning in Windsor, they echoed Kennedy’s consideration for children of same-sex couples at a recent press conference, stating that their young son “doesn’t know he’s a second-class citizen in Pennsylvania, where we’re not considered married.”

On top of the suits themselves, a high-profile schism in Pennsylvania’s executive branch may complicate the state’s defense of the law.  Despite being named as a defendant in both Whitewood and Palladino, Pennsylvania’s Attorney General Kathleen Kane, a Democrat, has publically denounced the state ban as unconstitutional and has stated that she will not defend it in federal court.  Kane’s position puts her at odds with Governor Tom Corbett, a Republican who supports the state ban and – perhaps at the suggestion of Rick Santorum – recently compared same-sex marriage to incest.  With developments in both cases on a weekly basis, Pennsylvania remains at the center of the nation’s debate over same-sex marriage.

Sunday Funday: Obamacare vs. The Affordable Care Act

/ Matthew Clemente / Leave a comment

Jimmy Kimmel Live: Obamacare vs. The Affordable Care Act

In an effort to bring some levity to the blog, Sundays will feature  “Sunday Funday” posts, posts about the lighter side of public policy debates.  This week, we have the viral video from Jimmy Kimmel Live where people on the street are asked which they prefer: Obamacare or The Affordable Care Act.

Here is a description of the video from CBS:

As someone who covers entertainment and viral videos all day long, I am not going to pretend that I totally understand Obamacare, but I kind of hoped that the general public knew more than me (since I choose to stay out of politics as a rule), but this clip from Monday’s “Jimmy Kimmel Live” demonstrates that we really don’t know what we’re talking about when it comes to this healthcare initiative. Watch the segment titled “Six of One” above, posted on Kimmel’s YouTube page, and be prepared to be disturbed.

This clip seemed particularly timely in the midst of all this government craziness, and it just seemed to scare me more. Were you shocked that people knew so little about Obamacare? Or that Obamacare and The Affordable Care Act were the same thing? Now, I know that this “data” is not scientific in the least, and they definitely chose clueless people on purpose, but it’s still a pretty shocking indication of what most people probably know and think.

But what I do like best about Kimmel, and the way he handled this social experiment is that no matter how dumb he may make people look, he’s always a good sport. As the woman who really seemed clueless on the segment was in the audience, and the late night host joked, “Welcome stupid people, you have a home here with me.” Always keeping it light, that’s what I like to see.