tv Ethical Perspectives on the News ABC February 21, 2016 11:00am-11:30am CST
responsible for its content. the views and opinions expressed on this program do not necessarily reflect those of the staff and management of kcrg-tv9. scott : good morning and welcome to ethical perspectives on the news. my name is scott samuelson and i'm a professor of philosophy at kirkwood community college on the iowa city campus. after decades of politicians getting tough on crime and waging the war on drugs, now both democrats and republicans are changing their tunes a bit. leading figures on the left, including hilary clinton, whose husband passed a tough crime bill in the 1990s, has spoke out about the need for sentencing reform, as have various figures on the right including governor branstad, who in his recent condition of the state address called for serious criminal justice reform. have we gotten too tough on crime? do our sentencing rules and guidelines unfairly incarcerate people? though black american's are only 3% of iowa's
prison population. does that show, as iowa supreme court chief justice mark cady says, significant racial disparities in our system? if so, what can be done? what is the purpose of prison anyway, punishment, rehabilitation, the protection of society? what kinds of principles should guide us as we work toward criminal justice reform? we have a great panel today to discus sentencing reform in criminal justice. to my left, jerry vander sanden, a linn county attorney. thanks for being on again, gerry. jerry: good morning. it's great to be here. scott : sara riley, an attorney at tom riley law firm. sara, thanks for being on. sara: thank you for having me. scott : at the end, justin lightfoot, an assistant us attorney. thanks for being on, justin. justin: good morning. scott : well, okay, jerry, maybe we can start with you. for, now decades now, we've been getting tough on crime. have we gotten too tough? are our sentencing procedures too much? jerry: well, you're right, we have gotten tough on crime. from back in the mid 70s to the current time we have seen more and more
crime in terms of mandatory sentences, mandatory minimum sentences. i think that back in 77 we had about 700,000 people incarcerated in america. now it's closer, i believe, to 2 million so if you go just by the incarceration rates, i think some would say that maybe we've gotten too tough on crimes because our prisons are filled with so many people. but on the other hand, i don't think you can ignore also what has happened with our crime rates. i think if you look at our crime rates actually for the last 20 years, our crime rates have steadily receded and it's debatable, i think, about what you would attribute that to. some would attribute our lower crime rates to our get tough measures on crime. some would say that we've gone too far and i think it's a good debate to have. there's no doubt that, not just at the federal level but at the state levels as well, the american criminal justice system is coming under scrutiny and i think that's a good measure
get complacent in the way that we administer justice in america. the justice system is too far an important institution to be complacent without always striving for ways to improve it. scott : okay, well, let's get sara in on this conversation. do we lock up too many people than is good for our country? sara: well, if you look at each individual person you might say, well no, this person deserved to be locked up and this person did but clearly, i think especially with the drug war and not that we should- i'm not saying, "okay, let's legalize all drugs," but there are a lot of people who have a problem with drugs. maybe they sold drugs because they had a problem or they were just in possession of drugs and they're, instead of being in a treatment facility, they're in anamosa, or fort madison, or some place and
house them and keep them. then once they get out, now they're a convicted felon and it's harder for them to get a job so do they go back to selling drugs and do they just land back in there? i think, at least definitely for drugs, i mean, i'm not saying for anyone, assault and violent crimes i have a different view on, but at least for drug crimes and not everyone who's selling drugs but at least i think that treatment would be a better option or at least should be looked at. i know they've had a lot of success with the drug course that they've used here. scott : right, and it sounds like governor branstad is interested in making some kind of movement on this kind of drug stuff but let's get justin in here too. where, if at all, is there injustice in our sentencing system, justin?
jerry vander sanden said. i think you do have to first note the crime rates have gone down but the question now is we've all realized we can't arrest our way out of this problem. the question is, how can we reduce crime further or continue reducing crime without the unwarranted cost of mass incarceration, those costs being financial costs but also the human costs. the department of justice under former attorney general, eric holder, rolled out the phrase that's now pretty well known, "smart on crime." i don't think people necessarily know what it means. they think it means soft on crime but it's not. attorney general holder said, "being smart and being tough on crime is what we need to do." that means focusing on the worst of the worst so federally speaking, as a federal prosecutor, we need to put our limited resources on the worst of the worst, on getting the most bang for our buck, if you will. the people who need the long prison sentences should be those who, or excuse me, the people who get the long prison sentences should be those who really need them, that that can protect the public the most.
general sort of philosophical question, what in a sense is the point of sending someone to prison? on the one end we've talked about maybe reduction of crime rates. is it to deter crime? is it to keep criminals out of society? is it to punish them proportionat ely to their crime? is it rehabilitation in some ways? what exactly are we doing when we send someone to prison anyway? i guess the reason why i ask this is to think, you know if we think of our goal then we have to think of what is our system meeting that goal or is it sort of an all of the above thing? sara: it's probably all of the above except for depending upon what the crime is. i mean like in iowa, with first degree murder you have life in prison. i don't know that we really are that concerned with rehabilitation because unless that person's conviction is overturned or is pardoned by the governor, and it's very rare for any of our governors of any political party to pardon somebody who is convicted of first degree murder, they're going to be in prison the rest of their life. i don't think people are too concerned with rehabilitating somebody. but if somebody is going to be getting
embezzled money or they had some assault convictions, whatever the situation is, you would hope that before they get out there's some rehabilitation just for society's sake. scott : yeah, jerry, i mean is it partly, i mean you were talking about the idea of maybe the fact that we've gotten tough on sentencing crime has had something to do with the crime rates overall, is that a deterrent effect? is that keeping criminals out of society? what would be the effect there and is that part of why we're sending people to prison? jerry: well, we hope that there is a deterrent effect. that's part of the purpose of our laws is to determine or deter criminal behavior but in iowa the way the law works is that we have individualized sentencing and the law says in iowa that when a judge sentences somebody for a crime, they're to craft a sentence that would best serve the rehabilitation of the defendant and also would serve to
different factors the judge has to look at when they sentence somebody. they're supposed to look towards rehabilitation but also protection of the community is a big factor. when we talk about protection of the community, you do want to fashion a sentence that is going to provide for some deterrents. for instance, not just specific but general deterrents. when a person is convicted for instance for drunk driving, you hope that the sentence they receive is going to deter them from doing that again. likewise, when other people see that that particular kind of law is being enforced that it's going to deter them from driving impaired. scott : do we have evidence that that works? one also hears about recidivism rates being fairly high after people get out of prison. is it the case that they go to prison and learn the lesson?
for rehabilitation that's being offered for defenders. scott : right. jerry: themselves of that opportunity, it's up to each and every individual but you like to think that the effect of the law does have some impact on behavior. i believe that the facts and the statistics will bear that out. scott : but the other thing, and maybe justin can speak to this, is one does have this deep sense that the punishment should somehow fit the crime, that even if we could protect the community by locking that some crimes just don't merit that, i take it, particularly with drugs stuff. sara was mentioning this before that sometimes people feel like these sentences just don't seem fair that someone is going to prison for a long time and who knows, maybe it does reduce crime rates to send them to prison for that long but is that really fair to this person and that person's family for a
justin: right, and under the federal statute, title 18, section 3553, the federal district court judge has a set number of factors that he or she has to consider as well but the important guiding principle is that, based on those factors, generally and specific, which include treatment opportunities for the defendant, which include protecting the public certainly, include the seriousness of the offense but the guiding principle is that the judge should select a sentence which is sufficient but not greater than necessary to achieve those goals. scott : right. justin: i think the department of justice would agree that some of the sentences that are required by some of the mandatory minimums, especially in the drug context, in certain instances, depending on the specific facts of those cases, would perhaps be greater than necessary. the department of justice does support some pending legislation which would cut some of those mandatory minimums.
about that and maybe, gerry, you can speak to this. how do mandatory sentences and mandatory minimum sentences work right now in our system and to what extent is this a federal issue, to what think not everyone has a clear sense of how these things really work for people. when do these kick in and how do they work? jerry: sure. well, there's two kinds of sentences in iowa that call for a mandatory prison time. for which the judge has no discretion. scott : jerry: prison is the only possible outcome. those are reserved for the most violent offences, for instance, murder, or robbery, or the worst forms of kidnapping, or sexual abuse and so forth. then there are some crimes for which not only is prison mandatory but the offender has to serve at least 70% of their sentence before they're eligible for parole. we call those the 70%ers. this was a law that went into affect back in 1997. first, in fact, it used to be 85% and they reduced it to 70% back in 2003, i believe it was, but it's reserved for the worst of the
those people that commit crimes like murder in the second degree, attempted murder, aggravated forms of kidnapping and sexual abuse, and both forms of robbery. i don't think that we should give our public the impression that everyone who gets sentenced for a felony goes to prison. that's not the case. in fact, most don't. most get a chance on probation the first time around for the felony offence unless it's a crime of violence. what our legislature has decided is that for those people who commit certain acts of violence, not only is the term going to be mandatory, but for certain extreme crimes of violence you're going to serve 70% of your sentence before you're eligible for parole. there are reasons for that. i remember when i started back in 83, the first murder case i ever
resululd in a conviction for murder in the second degree. the sentence was 50 years in prison but we had no mandatory minimums and the defendant was paroled after serving a little bit more than 7 years. the legislature saw examples like that happening across the state and decided, enough is enough. if you go to prison for certain crimes then you're going to serve a certain mandatory sentence before you're eligible for parole. scott : but why was the person paroled after 7 years? couldn't some people make an argument that well, they met the requirements for parole, this person was not a harm anymore to the society, this person had shown proper rehabilitation ? sara: wasn't it just crowded prisons really? scott : or was iicrowded prisons? jerry: well, the parole board, i think, is always under a certain amount of pressure to keep the prison population under capacity or at capacity but i think most people would say that a person that goes to prison for murder on a 50 year sentence should do more than 7 years. but it's strictly up to
time and so sentencing discretion has really taken away from the judge, from the jury and given to a to nobody. scott : right. well, so is there a problem, sara, with our sentencing, our mandatory minimum sentencing? sara: there was a problem before they changed it where there were, i mean second degree murder was anywhere in reality 5 to 7 years. i mean that was what was standard and that was considered crazy because just because you were lucky enough to have a really good attorney, because if jerry was going for first degree murder i can tell you that person deserved to have been charged with first degree murder. if the attorney, , d he probably stillll remembers s o it was, but was good enough to get the guy off on second degree murder, which is not a minor crime, for that person to only serve 7 years, i'm quite sure that the family of the person who was killed was pretty unhay when that person got out in 7 years. my unhappiness or my concern, with that type of
you're now serving 70% of second degree murder, i have no problem with that because there's a death. the problem i have is in the federal system where you have drug crimes where the judge has no discretion. mark bennett, whose a great judge, he's now senior status but he was a chief judge in the northern district of iowa, and he's written some columns, some opinion columns that have appeared in theheazette aboututis concern with the mandatory minimums and he's sentenced people who he thinks shouldn't be going to jail at all but they're going to go for 20 years because they had a drug problem and it they had been charged in the state systems for the same crime, they probably wouldn't have gone to jail. that's a problem, is to have the bad fortune and nothing against yoyo you're dealing, youou know you don't have discretion either. if the person is charged with whatever amount of
that sentence says this is the least you can serve no matter what. scott : yeah, justin you want to- justin: yeah, a few things on that. first, there's significant differences in the federal and state system. there is no parole in the federal system right now so when someone is sentenced to a period of imprisonment, they serve that entire period other than about 15% they can get shaved off for good time credit. second, there are some policies the department of justice has adopted in recent years which give us line prosecutors more discretion in alleging the triggers that cause a mandatory minimum to apply. in drug cases it's almost exclusisily drug quantity right now, so you reach a certain point of drug quantity and a mandatory minimum applies but that's only if the drug quantity is alleged in the indictment. there's now a set criteria that the ausa and the ausa supervisor go through in each and every case to determine whether to allege the quantity. similarly there are
on recidivism, recidivist enhancement, so if you've had 3 prior violent felonies you have a mandatory minimum kick in and so we have another set of criteria; we'll look at that. it's not any more the case that we always have to charge it and those policies are part of the smart on crime e itiative that attornrn general holder initiated. but i think there are some reasons why mandatory minimums are important and i think that's important to understand. one, they offer a certainty of sentence and for some types of crimes that's important. you need the public to know that if you commit crime a, there will be a 10 years or whwhever it is. that certainty can lead
deterrent effect than if you commit crime a you might be sentenced to 10 years but you might be sentenced probation, depending on which judge you get. i think that there is value in that. there's value in limiting the unwarranted disparity. as i said, if you can commit the exact crime and have the e act same criminal history but you happen to get a judge a instead of judge b and you get 10 years difference, that disparity is something that i think the system would try to avoid but that's only when mandatory minimums are an appropriate length and for the appropriate- scott : right. justin: type of crime. again, we believe that the lengthy mandatory minimums should apply for the most serious and violent offenders. scott : well, i guess, i mean the couple problems that i think about, one is that, and sara's alluded to this already a bit, that it seems as if part of the beauty of our system is that a judge makes a judgment. that is to say, looks at the specifics of the case and somehow applies what is a kind of set of precedents
sentence ties thth hands, in some wawas, of a judge who might say, "well, there are so mmy extenuating circumstances here," so judge a and judge b might be giving different sentences and maybe that is unfair but it could also be that judge a and b are giving different sentences for the same crime but there are all sorts of extenuating circumstance s that make up for that and wouldn't having a little bit of play in our system be a kind of good thing in that regard? i guess the other thing is, is that one fear is like with having multiple, you know you've been convicted a few times and then all of a susuen some mandatory minimal sentence kicks in. i guess if that's appropriate that's okay but again one worries like, in an extreme case like a "3 strikes, you're out," and yoget like a minor crime and all of a sudden now you're serving life in prison for something that just seems disproportionate punishment to what's actually going on. s sa: yeah, there e s somebody in california that they had stolen
their third- scott : right. sara: offense it was "3 strikes, you're out," a a- scott : right, and admittedly- sara: california got- scott : it might not always be so dramatic- sara: right, right. scott : but nonetheless, it seems like we want, like i said, the punishment not to exceed the crime and even if you've done 3 crimes, you know that doesn't necessarily- jerry: sure. scott : mean you deserve some huge, long sentence. sara: we do have habitual offenders in iowa- jerry: right. sararabut isn't there also discrrtion with the court? jerry: sure, the judges still have discretion even on those who are habitual offenders and have prior felony convictions but i think it's important to note that not only are judges concerned about fashioning the appropriate sentence to fit the crime but prosecutors are interested in- scott : right, right. jerry: doing that too. prosecutors are supposed to be fair and to play by the rules, and not overcharge crimes, and try to fashion an outcome that's appropriate to the kind of crime that's involved. for instance, if somebody shoplifts and they assault a clerk on the way out, i mean technically
a mandatory minimum 7 year sentence but i think the, most prosecutors would look at that and say, "this is an assault and a theft," and so i think it's important at every position to have people of integrity working in the justice system. if you don't have faith in the people who are involved in the justice system then you don't have faith in the justice system itself. scott : right, but doesest, i mean in some ways a mandatory minimum sentence says, "we don't have faith in the system," saying, "we don't trust you guys to do it so we're going to make sure that you do it?" sara: well, i think it started with the biden crime bill, the mandatory minimums, then, and crime was much higher at the timm was that there was too much leniency. problem is some of those minimums are way too high for what people are being charged with. i mean the biggest problem people have, no- you don't hear anyone say, "oh, i don't think we should have a mandatory
somebody who kidnaps and rapes a person." i've never heard anyone say, you know, "they're sentenced too long," but when you have s sebody who, and not that i am advocating in getting involved in meth, but the sentences for meth, which there's a lot of people who have an addiction to that, are rather high and at some point our prisons just can't handle all the people that have a drug problem and steal stuff to keep going. scott : maybe we should talk about just the number of p pple in prison and in particular the kind of racial disparities that chief justice mark cady has mentioned that, you know, so the numbers i have are that, you know of 8,000 inmates in 9 state prisons in iowa, roughly 31,000, you know 25% of the population is black, whereas only 3% of our population in iowa is black. does that show that there is some kind of disparity? i meme if the goal of this stuff is to make things equal, is that equal? i mean is it the case that the- sara: well, i think there's
reasons for it. a lot of them aren't good. some are as simpleles who they have for a lawyer. i mean, i'm not going to pretend that all lawyers- scott : so it's a kind of class thing, partly? sara: there can be, there can be that, i mean, you know- scott : right, but it seems like there's a race thing on top of the class thing. sara: i'm not saying there's not. it could start with where they're getting arrested. it could, there could be a whole- that's why i said s se of the things aren't good but some of them actually are color blind. i mean if you ask somebody, "who," you know, "tell me one person you can think of that got away with murder," most people uld say who, "oj,, you know? why did he get away with murder? it wasn't because of the color of skin. it was because he had what was called the dream team so some ofofhe racial disparity is income basedd although i have a nephew who is a public defender and i think the public defenders in iowa do a great job so just because you don't have the money for
don't think that there's some, you know, necessarily some conscious thing that people are going after but it does seem startling. i mean, justin, doesn't this seem like a problem that needs to be addressed in some ways? justin: yeah, i looked up the numbers here and brought it with me from the federal system- scott : yeah, okay. justin: because i wasn't aware. i'd heard about the iowa numbers and so according to the bureau of prisons' website the african americans make up approximately 38% of the feral prison population as of, i think it was the end of 2015. that's about 74,000 inmates. now comparatively, according to the census, africananmericans make up 13.2% of the nationwide population- similar disparity- scott : disparity, sara: but not a stark, nowhere near as stark as in 3 versus 25. justin: i would agree there's a lot of issues contributing to this. i don't think it's just the criminal justice system. i think there's some, you know some crime is prompted by social or economic inequality and so i think as a society or fromomll angles and not just the criminal justice system but all angles as to how we can help this. now,
criminal justice system can do, i think one way we can take a step towards correcting this is actually focusing on offender reentry. reentry focuses on, when people get out of prison are they going to recidivate and come right back into prison, or can we help them stay out and live law abiding lives? i mean 74,000 african americans in fededel prison ririt now, almost all of them along with almost all the other inmates are coming home at some time. they're all going to be released or almost all of them will be released at some point in time and due to difficulty finding jobs or lack of community support, they have a hard time getting on their feet. if we're going to end this cycle, and not send them back to prin and contribute to this disparityty even more, w whave to help with the reentry. scott : well, what about, jerry, that just the sentencing piece of this? does that play a role in increreing the number of black americans in prison? i mean, i guess the worry would be, particularly
stuff, that all of a sudden the rug war gets waged predominantly in black communities and then all of a sudden they're paying this huge price that has been brouout on by getting tougug on crime in the way that we have? jerry: i think it's a fair question. i think the question we have to ask is this, are any of our laws that we have on the books unfairly targeting minorities? if that's the case, then those laws need to be changed but at least at the state level, the state of iowa, i don't believe there are any laws that unfairly target any segment of the population. i believe that's true at the federal level as welel many will point too the disparity in treatment of drug traffickers wih regard to the difference between crack cocaine and powder cococne but some offhese people have a very short memory. many might remember back in the late 80s and early 90s when crack cocaine wawatearing
people wanted- scott : right. jerry: a response to that problem because- scott : right, right, to crack down on. that was part of clinton's stuff- jerry: right. scott : and everything in turf : right. jerry: were dying and so our legislature crafted the sentences. it got tough on people who peddled crack cocaine and so i don't think there was any kind of insidious intent our leleslators to craft a law that was going to come down on one segment of the population. scott affect has been sort of to do that a bit. i mean even one could sort of say cynically that part of why branstad has all of a sudden worried about drug stuff is that it's s l of a sudden hitting white communities more in iowa and it's like, "oh, now we need to back off the sentence." sara: it could be that and also with budgetary concerns. you know at some point you ve to build a new prison or- scott : sure, and that might- scott : right, that might sentences are and stuff. scott : right, right. we only have a few seconds but do you want to respond to that, jerry? jerry: no, i think it's good
laws s see if there's any way that we can amend them to make them more fair for justice is not supposed to depend on who you are. what you do. scott : right. jerry: the law should apply to all equally. scott : right. well, that's maybe a good note to end on. i mean, i think as a society we lock people up and as you said, this is serious business not just for those who have suffered crimes and committed those crimes but really for all of us in whose name we are doing this. i hope that the conversation that we've started is one that you can continue in your homes and communities and i would really like to thank the panel for really a really enlivening discussion. thank you again. sara: thanks for having us. jerry: my pleasure. justin: thank you. scott : okay, thank you, and we'll see you next time on
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