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Friday, January 21, 2005

Judge Pryor's Keynote Address

Columbia Law Review Editor in Chief Rick Kaplan introduced Judge William H. Pryor, Jr., Eleventh Circuit Court of Appeals. Kaplan asked the audience to constrain questions to sentencing, and remember that Judge Pryor will be hamstrung in addressing specifics regarding the federal guidelines due to being in the federal judiciary himself.

For the A3G-minded, I note that Judge Pryor wears a dark grey pinstriped suite, white shirt and what looks like a violet colored tie scattered with red dots. A square folded white handkerchief rests in his breast pocket, and a gold pin adorns his lapel.

Judge Pryor began by thanking the Columbia Law Review, and its staff, "tired and overworked, and surely soon to be overpaid."

Few in the 1960s could have foreseen the weakening of rehabilitation, the invention of sentencing commissions, the new ethos of experimentation with intermediate punishments, or the unprecedented growth in incarcerated populations. Understanding this revolution requires understanding several competing forces of change. Political: war on drugs, corresponding mandatory mins; victims’ rights and corresponding dislike of parole; the grassroots movement for restorative justice, often driven by religious groups. Economic: maintaining prisons. Legal: the Supreme Court decisions regarding the 6th Amendment, beginning with Apprendi, continuing with Blakely, culminating with Booker.

His perspective was shaped as chief prosecutor for the state of Alabama, and its leading advocate for sentencing reform. If it has been needed urgently anywhere, it has been in Alabama. He outlined his talk: The crisis of the criminal justice system that made him a reformer. Political power and the pitfalls of reform. A few practical lessons and insights, especially for state and public officials interested in prospects for reform.

In 1997, when he became state attorney general, crisis was the only word that could fairly describe the criminal justice system. The state was housing twice as many inmates as the prisons were designed to do. The crisis and the lawsuits grew. The problem dates back to 1971, and injunctions against it became constitional law landmarks of equitable remedies. Still, there was an explosion in the growth of the prison populations. Alabama used incarceration as a punishment for more often than almost any state. The prison population was relatively stable at 5000 inmates for 1930-1980; in 2003, there were 28,000 inmates.

Although conditions had improved since the federal litigation, Alabama was not increasing its spending on correction sufficiently. It has had the lowest per-inmate spending at $9, 073 each year. Private, for-profit prison companies were unwilling to assume the risk of operating prisons at the price; some found it implausible that Alabama actually spent that little, and recommended better accounting. They were shocked to find that the numbers were in fact accurate. They said greater efficiency was not possible within the present budget.

Indeterminate sentencing systems were not meant to bring about an explosion in inmate population, but it did. There was widespread dissatisfaction with the sentencing system. Though politicians promised to be tough on crime, those whose votes they sought had the greatest complaints. As the youngest AG in the U.S. at the time, Pryor was not cynical enough to think that reform was impossible, but he knew that the path to it was littered with obstacles. Competing stakeholders distrusted each other’s proposal for change, but the political counterweight was the support for reform.

Similar offenders should receive similar punishments based on the severity of their criminal behavior, but this idea was feared by judges who wanted wide discretion to tailor their sentences. That discretion was in reality chimerical, because actual time served generally was more affected by the parole board than the sentence assigned.

Alabama needed rational sentencing, a system that used scarce prison resources to incarcerate the most dangerous while using intermediate measures for drug and property offenders. Perry Hooper, Chief Justice of Alabama, proposed a joint venture of the Judicial Reform Study committee, one devoted to sentencing. The legislature certainly would not adopt a sweeping reform of sentencing in an election year. Partnership with a Chief Justice also would distance Pryor’s proposals from the federal system. A unwieldy commission of 39 members was appointed in 1998.

On October 22, 1999, the commission issued its unanimous report: comprehensive sentencing reform was needed. The most practical recommendation was the creation of a permanent commission to advise the legislature. Judge Colquitt wanted to keep the commission small; Pryor wanted to maintain lots of important stakeholders to ensure a coalition that would favor the commission’s sentencing reform proposals. The governor, a former attorney general, harshly opposed the current parole system; an African American state senator said he would sponsor the legislation. The legislation creating the permanent commission passed.

The commission did not have an appropriation from the state general fund, putting it in even worse condition than the prisons themselves. Judge Colquitt was appointed chairman. By January 2001, the commission had office space, staff and funding, but the information it needed was scattered among four agencies. The commission requested funding for necessary database technology and a support staffer, to develop a true picture of the existing system. Alabama never had had such a database of complete sentence information on each offender. The use of “good time” credit for parole had become an entitlement, both lenient and incomprehensible. The one person still living who could grasp how long someone would serve retired shortly after the commission began operation.

The commission had several recommendations for system wide reform, based on reliable data. These reforms would allow Alabama to establish truth in sentencing, avoid unwarranted disparities and avoiding both overcrowding and the premature release of dangerous offenders. The commission recommended three short term proposals, to amend property crime statutes to reflect inflation; to increase funding for probation and parole officers; and to fund intensive drug rehab for inmates. Drug and property offenders accounted for 44% of the prison population. The probation and parole systems were overcrowded and needed a significant improvement in staffing and technology.

Long term proposals: consolidation and expansion of community corrections and rehab; a new sentencing structure with voluntary sentencing guidelines (or to use the commission’s term, “standards”), because they wished to provide meaningful judicial discretion, the record of states with voluntary guidelines in reliving prison overcrowding, and Alabama judges and prosecutors were strongly opposed to a mandatory guidelines.

4 lessons to be learned from his experience of reform:
1) Sentencing reform takes patience, commitment and data. Problems created over decades cannot be solved with temporary task forces. Replace “tough on crime” with “smart on crime.”
2) Even before Booker, the federal system was not the only model; the laboratories of the states have provided several successful alternatives. Federal reform itself might benefit from borrowing from the state models (proving a benefit of the federalist system, which permits the vast majority of crime to be handled at the state level).
3) Successful reform requires a broad-based coalition to sustain itself. That collaboration can be sustained through a permanent commission.
4) Sentencing reform requires constant expert assistance. It requires funding, but not nearly as much as the money spent in prison litigation.

Pryor concluded by saying that he was happy to answer questions, "with the admonition that whatever questions are asked and answers I have to give are all that stands between this crowd and the bar."

Q: How did the vast increase in the inmate population happen?
A: Elected judges and prosecutors responded to the public’s desire for increased sentences. In most areas of the state, there wasn’t any good alternative to that option, because there were so few other sentencing options. Also, the politically appointed Board of Pardons and Paroles frequently was quite restrictive, as well as arbitrary.

Q: How will the political will for reform arise?
A: Hopefully the promise of certain sentences, no longer undercut by an arbitrary Parole Board, will be sufficient.

Q: Virginia's system is secured by the requirement that every legislative change in sentencing and crime statutes be matched with funding. Does Alabama have a similar safeguard?
A: When there's a political call for increasing sentencing, we now have someone with authority and credibility who can come in and say what the cost will be.

Pryor read from an article he'd been sent on his Blackberry that provided plenty of evidence for his observations.
Instead, lawmakers have passed bills calling for longer sentences, but without allocating money to pay for them. Knight vowed to put a stop to that.

He said every bill this session that calls for more prison time must come with a funding stream. "It's easy to get up and demagogue on 'tough on crime,' but you're not tough on crime if you don't come up with the funding," he said.


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