Posts by Jeralyn Merritt

Jeralyn Merritt is criminal defense attorney in Denver representing persons accused of serious federal and state offenses.

Hillary vs. Obama: Who is Trying Harder to be "Tough on Crime"?
Posted by Jeralyn Merritt, Talk Left on February 11, 2008 at 7:46 AM.

The San Francisco Chronicle has an article today by Bob Egelko comparing Hillary Clinton and Barack Obama on crime issues.

Shorter version: They are pretty similar and not particularly liberal (certainly not as much as I would like them to be.)

There are some things I take issue with. For more on Obama's record on crime and defendants' rights, see my earlier analysis here.

It's true, as the article says, that while both support the death penalty, Obama worked to revise it in Illinois to prevent wrongful convictions and Hillary was an early and consistent supporter in Congress of the Innocence Protection Act.

But neither one opposes the death penalty for the guilty. Obama, for example, supported legislation in Illinois to increase crimes eligible for the death penalty -- specifically for those convicted of brutal murders of the elderly and mentally disabled. (Chicago Tribune, May 2, 2001, available on Lexis.com) He also supports it for heinous crimes.

In 2004, for the first time since the 1980's, the Dems, at the insistence of John Kerry, dropped the death penalty from their platform. Will Obama or Hillary pledge to keep it out? I doubt it.

On mandatory minimums, the article implies Obama is opposed to them while Hillary is not.

The two differ on crime-related issues that have a lower profile but affect many thousands of prisoners, most of them minorities - the disparity between sentences for offenses involving crack and powder cocaine, and the merits of federal mandatory-minimum sentencing laws. On both, Clinton lines up with the prosecution, Obama with the defense.

While it accurately notes that Obama has tempered his opposition recently by merely calling for a review of mandatory minimums, he's also said his opposition applies to non-violent offenses. And he has doubts about spending political capital to change them.

He said that if he were to become president, he would support a commission to issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair and unjust. Then I would move legislation forward."

"Even if we fix this, if it was a 1-to-1 ratio, it's still a problem that folks are selling crack. It's still a problem that our young men are in a situation where they believe the only recourse for them is the drug trade. So there is a balancing act that has to be done in terms of, do we want to spend all our political capital on a very difficult issue that doesn't get at some of the underlying issues; whether we want to spend more of that political capital getting early childhood education in place, getting after-school programs in place, getting summer school programs in place."

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Cashing in on the Prison Boom
Posted by Jeralyn Merritt, Talk Left on January 28, 2008 at 8:02 AM.

The New York Times has an article today on communities that feed off the prisons within them. When America, prison nation, closes one of them, it can threaten the very existence of such towns.

As rural economies across the country crumbled in the 1980s and the population of prison inmates swelled, largely because of tougher drug laws, states pushed prison construction as an economic escape route of sorts. Throughout the 1960s and '70s, an average of four prisons were built each year in rural America; the rate quadrupled in the 1980s and reached 24 a year in the 1990s, according to the federal Agriculture Department's economic research service. The boom, experts say, provided employment, but it also fostered a cycle of dependency.

Count me among those with no sympathy. America's over-incarceration policies mean corporations make billions and the federal government throws millions to these communities in subsidies.

Take the town in the article, Gabriels, New York, which has a prison recently ordered closed by Gov. Spitzer. [More…]

The reliance on Camp Gabriels extends well beyond jobs. Small businesses have staked their survival on the prison workers who patronize their stores. Local governments and charities, meanwhile, have come to depend on inmate work crews to clear snow from fire hydrants, maintain parks and hiking trails, mow the lawns at cemeteries and unload trucks at food pantries.

….Four of Mrs. Keith's nine children work in state prisons, she said, including a son and a daughter at Camp Gabriels. "Everyone around here either works in the prisons, or has a relative who works in the prisons, or knows someone who works in the prisons," said Mrs. Keith, 78. "My kids were able to build their homes and raise their families here because of the prisons. If it weren't for the prisons, they would have had to leave the area."

The entire county feeds off prisons.

The correction industry is big business in Franklin County, which has five state prisons and one federal prison in its 1,678 sparsely populated square miles. In the town of Brighton, which encompasses Gabriels and five other hamlets, the prison is perhaps the only place where someone with a high school diploma can earn a decent wage and benefits.

"There ain't much else the local people could do for gainful employment," said Peter Martin, 48, the town's supervisor and a corrections officer at Camp Gabriels for 22 years.

There are political ramifications as well:

Prisons are also a valuable political tool, because inmates are counted as local residents, allowing communities to receive more state and federal aid for emergency services. Mr. Martin said that he was not yet sure how the town of Brighton stood to lose if Camp Gabriels closed, but he added, "We're concerned about losing any kind of aid here."

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Crack Cocaine Sentence Reductions Finally Begin
Posted by Jeralyn Merritt, Firedoglake on November 1, 2007 at 2:00 PM.

This post, written by Jeralyn Merritt, originally appeared on FireDogLake

Finally, a little relief is at hand for the vastly disparate and draconian crack cocaine sentences meted out by federal courts. New federal sentencing guidelines for crack cocaine offenses went into effect today.

Starting today, many offenders sentenced in federal court for crack will receive a sentence about 16 months less than they would have yesterday.

By way of background, through mandatory minimum sentencing laws, the Feds have punished crack crimes far more severely than those involving powder cocaine. The U.S. Sentencing Commission followed suit by enacting guidelines that matched the mandatory minimums.

A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.

The 100 to 1 ratio between powder and crack cocaine penalties has no rational or scientific basis. (You know you're onto something when even Joe Biden agrees.) After years of debate and studies demonstrating this, and with statistics showing that the crack penalties resulted in great racial disparity in sentences, in May, the United States Sentencing Commission proposed dropping the penalties for crack offenses by two levels. Congress had until October 31 to oppose new guideline. It didn't object, so the new guideline became effective today.

This is a welcome step in the right direction. But let's be very clear. It's not time to open the champagne. This is a relatively minor reduction and it doesn't apply to all defendants.

There's two remaining problems: Retroactivity and mandatory minimum sentences.

First, the Sentencing Commission must decide whether the reduction will be retroactive and apply to the 19,500 currently serving sentences for crack offenses. Its analysis of the issue is here (pdf) and iincludes the statistic that of the 19,500 inmates currently serving federal sentences for crack offenses, 86% are black, 8% are hispanic and 6% are white.

In other words, Blacks serve far longer sentences than whites for a comparable offense regarding substances that are chemically identical. With 19,500 inmates still in prison serving these disparate sentences, retroactivity is essential for fairness.

However, even if the reduction is made retroactive, it will not result in either an automatic sentence reduction or a reduction for everyone.

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Rudy's Buddy Bernie Kerik Likely to Face Bribery, Tax Fraud and Obstruction of Justice Charges
Posted by Jeralyn Merritt on October 12, 2007 at 3:30 PM.

This post, written by Jeralyn Merritt, originally appeared on Talk Left

The New York Daily News reports that Rudy Giuliani pal Bernie Kerik, already disgraced from his failed nomination for Homeland Security Secretary and guilty pleas for state tax violations, is sending his lawyers to Washington for a last-chance meeting with the Justice Department to avoid indictment on federal tax charges:

Kerik's lawyers recently agreed to waive the statute of limitations on the tax charges until Nov. 17, which will allow them to make one last plea to try to ease the pain.

Kerik will go to the Justice Department in Washington in the coming weeks to try to get expected criminal tax charges reduced to civil fines.

Kerik still faces probable charges of bribery and obstruction of justice over a secret meeting with former Giuliani officials in Tribeca in 1999.

More...

The Giuliani officials are Raymond Casey, former head of the Trade Waste Commission, a city agency set up to keep the mob out of the carting industry, and Michael Caruso, former inspector general with the city Department of Investigation.

In July 1999, Casey and Caruso met with Kerik, then the city Correction Department commissioner, at Walker's bar on North Moore St., court papers reveal.

At the time, Casey was investigating Interstate Industrial Corp., a company that employed Kerik's brother Donald and the best man at Kerik's wedding, Larry Ray.

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ACLU 1, Patriot Act 0
Posted by Jeralyn Merritt on September 7, 2007 at 7:11 AM.

This post, written by Jeralyn Merritt, originally appeared on FireDogLake

A federal judge in New York today struck a fatal blow to the Patriot Act provision authorizing national security letters. The ACLU, which brought the lawsuit, reports:

The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.

The case is Doe v. Gonzales and the 106 page opinion is available here (pdf). You can see a copy of a national security letter here (pdf).

This is an important decision. National Security letters are not just used to get records of suspected terrorists and they have a tremendous potential for abuse.

NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.

In other words, since the individual receiving the request for records is "gagged," i.e., not permitted to disclose receipt of the letter, he or she can't challenge it, even in a court of law. That results in no judicial oversight.

"Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."

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