Author: Melissa DiRado

“Ban the Box” Movement

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“Ban the Box” is a national movement striving to remove the “box” from job applications. Anyone who has filled out a job application in recent years will have noticed the question, “Have you ever been convicted of a crime?” or some derivation thereof, accompanied by a box to check, either yes or no. This question, to most, is not a source of stress or anxiety. But, for the large majority of the American population that has a criminal conviction, this question signals to job applicants that their application will not be considered.

Criminal convictions carry a heavy stigma that is difficult to overcome, especially in the context of employment. The purpose of the “Ban the Box” movement is to allow job applicants with criminal convictions the opportunity to be considered for a job without the stigma of their conviction inhibiting their chances. Banning the box allows applicants with criminal convictions the chance to get their foot in the door and have a better chance of getting an interview. The ban does not guarantee a job to an applicant with a conviction history. The ban also does not, depending on its specific language, prohibit an employer from asking about an applicant’s conviction history. The goal is to allow employers to consider applicants without their conviction status being the focus of the employer’s decision.

The logic of eliminating the initial question on job applications is simple; it is illogical to screen out hundreds of thousands of qualified job applicants from potential jobs due to their past criminal conviction. Time and time again, individuals that are qualified or over-qualified, are not considered or asked to interview because of their conviction.

According to an article by the NELP (National Employment Law Project), nine states, Colorado, California, Connecticut, Illinois, Maryland, Massachusetts, New Mexico, Minnesota and Hawaii along with 50 local municipalities have passed ordinances banning the box from job applications. Recently, Target announced their intentions to eliminate this dreaded question from their job application.

In today’s society, recidivism and the “revolving door” of the criminal justice system are ever growing problems. Banning the box is one measure that can begin to move us in the right direction of allowing applicants with convictions the opportunity to find jobs.

There is a local Syracuse, New York, and New York State movement to “Ban the Box,” but, both are still working to gain traction.

For more information on this topic, check out this informational PDF or any of the links below.

–Minnesota

–Maryland

–Target Corporation

One Federal Judge’s Actions Against Mandatory Minimum Sentences

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One of my fellow SLACE members brought this article to my attention, and it serves as a perfect follow-up to my post from last week.

This article addresses a Federal District Judge from the Eastern District of New York, Judge Gleeson’s take on mandatory minimum sentences. Judge Gleeson has taken to asserting his strong feelings against the use of mandatory minimum sentences in the federal plea-bargaining process. The excerpt from his recent opinion (found under the above hyperlink) is worth a read. Additionally, the firestorm of comments left on this article raise several interesting points.

First, one comment asserts that Judge Gleeson is acting outside of his Constitutionally given powers and is acting in direct opposition to the separation of powers between the Executive and the Judiciary. The commenter is correct in that one of the core principles behind our government is that we have three separate and “co-equal” branches. Each branch has specific duties as well as checks on the other two branches. Federal Prosecutors, as part of the Executive branch, have sole discretion regarding whether to charge a defendant and with what crime(s). However, as Judge Gleeson and some of the commenters on this article suggest, there is an ever-growing concern that Federal Prosecutors are utilizing mandatory minimums to force defendants to take a plea and forego a trial. Should we even be concerned with this potential conduct?

Second, the issue of mandatory minimums for non-violent drug crimes arises again. As one comment suggests, “The charge is drug dealing. It likely stands in for hundreds of crimes a year, including the beatings and murders of competitors. The defendant did not learn from prior punishments, perhaps cannot change. After several convictions, only incapacitation serves the purpose of the owner of the law, the public.” Is this how we should view these crimes and subsequently support mandatory minimums for this subset of crimes? Do defendants convicted of non-violent drug crimes deserve a mandatory minimum sentence now because they were simply caught this time? Does incapacitation, through incarceration, of a defendant truly create a law-abiding citizen following his/her release from prison?

Third, the undertone of several comments touch upon the role of the public. Many commentators suggest that it is the public that wants these steep mandatory minimum punishments. Is this true? Furthermore, does the public even really understand what a 10 year sentence for a drug crime really means for a person? One comment suggests that juries should serve as the guide for what “the public” believes. But, another comment suggests that Congress, due to its greater size, is a better sample to determine the interests of the public. Is Congress really a better gauge of public opinion than the actual people they supposedly represent?

I’m interested to know what other people think about Judge Gleeson’s comments, his approach to mandatory minimum sentences, and the ways in which prosecutors potentially use these as threats or leverage to force defendants to plead guilty and forego their right to trial. Many opponents of this view will argue that a defendant is knowingly and voluntarily deciding to plead and not go to trial. This view is also supported by decisions of the Supreme Court. But, precedent aside, is it true that when faced with a mandatory minimum punishment of 10 years in prison or a plea deal to 5 years in prison a defendant is truly making a voluntary decision to plead and not proceed to trial?

Mandatory Minimum Punishments: Do they have a legitimate purpose?

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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/

 

Winning the Battle, but not the War? What has the “War on Drugs” really accomplished?

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In the recent months, more attention has been allocated to the effects of the “War on Drugs” instituted by the government in the 1970’s. The ACLU released a report in June 2013, highlighting three key areas of the “War on Drugs” that now, statistically, seem to conflict with the aims of curbing drug use, possession, and distribution. The ACLU report, entitled “The War on Marijuana in Black and White” captures the racial bias in the application of the “War on Drugs” in addition to the allocation of money and police officers to fighting this “War.”

On August 12, 2013, Attorney General Eric Holder issued a statement in front of members of the ABA stating that the federal government is looking to eliminate mandatory minimum sentences for some crimes as well as implement other measures. Holder noted that it is unclear if there are positive effects coming out of the now 40-year old war on drugs.

Following the Emmy’s on September 22nd, Michael Douglas shared his personal views, derived in part from personal experience, expressing his distaste for the current status quo amongst drug policies.

Has the United States been misguided over the last forty-some years in executing this war on drugs? Were the original intentions justified? Does public perception alone signal that something should be done to change the current practices regarding arrest and conviction of drug offenders?

The ACLU report in its entirety seems to demonstrate that states and the federal government may be spinning their wheels in an effort to substantiate the use of so many resources for, to some, a questionable policy.  Should we be concerned that, according to the ACLU report, “In 2010, there were more than 200,000 people incarcerated on the sole charge of marijuana possession,” and, that African American’s are “3.73 times more likely to be arrested for marijuana possession than a white person”?

It seems pertinent to ask whether the “War on Drugs,” in its current form, is serving the purposes originally intended. For instance, are we as a society so concerned with marijuana possession that it justifies arresting hundreds of thousands of people each year? The ACLU report found that, “Of all marijuana arrests in 2010, 784,021, or 88%, were for possession. Similarly, 88% of all marijuana arrests between 2001 and 2010 — 7,295,880 out of 8,244,943 — were for possession.” Should our efforts and resources be allocated to arresting individuals for possession charges? Consider too, the 784,021 individuals arrested in 2010 logically obtained their marijuana from somewhere. Should the police and prosecutorial efforts be focused more on distributors rather than users? Is there a difference in terms of culpability?