Monday, November 16, 2009

Ohio takes chance on lethal injection

The Los Angeles Times reported that Ohio has become the first state in the nation to adopt a single-injection method for executing condemned inmates, a process that state officials believe will avoid violating the constitutional ban on cruel and unusual punishment.

The single large dose of anesthetic is similar to the method used by veterinarians to euthanize pets and livestock. Other states with capital punishment now use a three-drug formula that has been reviewed and approved by the U.S. Supreme Court.

The accepted three drug cocktail involves the following procedure, after the anesthetic is administered, pancuronium bromide and potassium chloride are introduced into the body. The second drug paralyses the inmate the final drug stops the heart. According to the Wall Street Journal, administering the second drug is for the sole purpose of avoiding unpleasantness for those observing the execution. Representatives of the victim’s family, the media and law enforcement are invited to witness all executions. Without the paralyzing agent the witnesses would be exposed to the uncomfortable sight of the inmate’s body spasms and muscle contractions as he drifted into cardiac arrest.

Clarence Hill, a convicted murderer from Florida sought to challenge lethal injection as a violation of the Eighth Amendment ban against cruel and unusual punishment. Hill argued to the U.S. Supreme Court that the three chemicals used in lethal injection can cause “a foreseeable risk of . . . gratuitous and unnecessary pain.” The drugs are a combination of chemicals that relieve pain, paralyze and induce a fatal heart attack. A unanimous court ruled that inmates could make last minute challenges to lethal injection. The court did not decide whether lethal injection was cruel and unusual punishment. That decision would be left to the state, Hill V. McDonough, 547 U.S. 573 (2006). Ironically, the state of Florida found Hill’s argument to be untimely and executed him last September.

If the use of a lethal dose of anesthetic would provide a more humane death slumber, why not abandon the three-drug cocktail and adopt death by lethal anesthetic? Hill's attorney counted that the length of time to carry out the execution would lengthen the process from a few minutes-to as long as half an hour. Justice John Paul Stevens interjected, “I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary.”

On April 16, 2008 the U.S. Supreme Court, in the case of Baze v. Rees, 533 U.S. ___ (2008), rejected a challenge to Kentucky's method of lethal injection. The court held that lethal injection did not violate the Eighth Amendment.

In the wake of a botched execution in September, Ohio appears to be following the reasoning of Justice Stevens by eliminating all but the drug that induces death during executions. Ohio's bold action will surely make it's way back to the high court.

Wednesday, November 11, 2009

Where is the outrage?

The National Institute of Justice released an interesting survey ( that found law enforcement agencies had not submitted forensic evidence (including DNA, fingerprints, firearms and tool marks) to a crime lab in:
Fourteen percent of open, unsolved homicides.
Eighteen percent of open, unsolved rapes.

According to the Innocence Project there have been 245 people exonerated by DNA, 17 of whom were on death row. This summer the U.S. Supreme Court refused to acknowledge post-conviction DNA testing as a constitutional right. However, 44 states and the federal government have laws allowing post-conviction access to biological evidence for testing.

With so much attention paid to post-conviction access to testing, law enforcement agencies are failing to test evidence in pending unsolved homicides and rapes. How many cases could be solved if we paid as much attention to solving crimes as policy makers do to pursuing exonerations. In 2005, there were 16,692 murders in America. The clearance rate (the number of homicides solved)was 62-percent, meaning 8,012 murders went unsolved. According to the NIJ, approximately fourteen percent of those unsolved cases would have untested forensic evidence or 1,112 potentially solvable cases.

That is four times as many cases that could have been solved in one year than have been exonerated in the last two decades. Where is the outrage that 8,000 murderers a year walk the street, over a thousand of whom might have forensic evidence available to convict them.

Tuesday, November 10, 2009

Roberts on the right track with JLWP

On November 9, 2009 the U.S. Supreme Court heard arguments on whether juvenile life without parole (JLWP) for non-homicide offenses violates the Eighth Amendment ban against cruel and unusual punishment.
Robert Barnes' article in today's Washington Post provides an interesting look into the direction of the court."> Barnes quoted Bryan Gowdy the attorney for Terrance Graham, "Gowdy said the court should abolish LWOP for any non-homicide crime committed by someone younger than 18. He said he thinks it is constitutional to impose such a sentence on a juvenile who killed."
Under this scenario, a 17-year old offender who intends to kill on multiple occasions, but due to poor aim or resilient victims, fails to kill would be spared life without parole. However, a 14-year old, who during is first violent offense kills a store owner in a botched robbery, could be sentenced to LWOP.
That doesn't make good sense or good law.
Earlier this year I wrote about JLWP in the Youngstown Vindicator, "Sentences, especially for juveniles sentenced as adults, should be specifically tailored for each individual offender." (
Barnes further wrote, "Rather than having rigid rules based on age, (Chief Justice Roberts) said it would be better to require judges to consider the defendant's age when imposing harsh sentences, and then having courts review whether they are disproportionate to the crime."
Robert's suggestion would promote fairness and proportionality. Something that a "bright line" standard would not provide.

Monday, November 9, 2009

Supreme Court to review life without parole for juveniles

The U.S. Supreme Court has agreed to review whether sentencing a juvenile to life in prison without the possibility of parole, for a non-homicide offense, violates the Eighth Amendment ban against cruel and unusual punishment. On its face this issue would appear to have little impact on Pennsylvania. There are no juvenile offenders serving life without parole (LWOP) in Pennsylvania for non-homicide offenses.

However, Pennsylvania does have more juvenile lifers, convicted of murder, than any other state, and it appears as though the reasoning used to strike down the death penalty for juvenile killers will be used to buttress the argument to ban LWOP for juvenile non-killers. As the distinction between killer and non-killer begins to blur the potential impact on Pennsylvania becomes obvious.

According to a recent study conducted by Florida State University there are 2,574 juveniles serving life sentences in the United States. In 39 states, juveniles can be sentenced to LWOP. Fourteen states allow a minor to be tried as an adult at any age. Pennsylvania leads the nation with 375 juvenile offenders serving life in prison. Except for a handful of countries and literally a handful of international offenders, America is the only nation in the world that has juveniles serving LWOP.

According to the U.S. Department of Justice, Bureau of Justice Statistics, the number of juveniles committing serious violent crime nationwide dropped by nearly 61-percent between 1993 and 2005, yet the percentage of juveniles receiving LWOP increased by 216-percent. According to the Pittsburgh Post-Gazette, fifty-nine percent of juveniles serving life in Pennsylvania had no previous criminal record and one in four were convicted of felony murder.

Only eight states have laws that permit the imposition of LWOP for non-homicide juvenile offenders. Across the country there are 109 non-homicide juvenile offenders serving life sentences. Seventy-percent of those offenders are in the state of Florida. Appropriately, the litigants that have made their way to the United States Supreme Court, Terrance Graham and Joe Sullivan, were both sentenced by Florida courts.

Terrance Graham, at age 16, committed an armed robbery at a restaurant in Jacksonville, Florida. Graham, and an accomplice, beat and robbed the restaurant owner. Graham was sentenced as an adult to 12 months confinement in a county detention facility to be followed by three years probation. Shortly after his release, Graham, along with two accomplices, committed an armed home invasion. Graham held a gun to the head of the home owner while his co-defendants searched and robbed the home. After a second botched robbery on the same evening, one of Graham’s accomplices was shot. Graham left his wounded co-conspirator at the front door of the hospital and fled. He was subsequently involved in a high speed chase with police. He crashed his vehicle, fled on foot, and was later apprehended.

Graham’s probation was violated and he was sentenced to life in prison for armed robbery and 15 years for attempted armed robbery. The Florida First District Court of Appeals affirmed his sentence and the Florida Supreme Court refused to hear his appeal. On November 9, the U.S. Supreme Court will hear Graham’s case (08-7412) as well as Sullivan’s case (08-7621). Sullivan was sentenced to life in prison by a Florida court for a robbery and rape he committed at the age of thirteen.

Graham’s attorneys suggest that his sentence of life without the possibility of parole is cruel and unusual punishment pursuant to the Eight Amendment to the U.S. Constitution. They further suggest that the case is fully resolved by the U.S. Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005). Roper was the landmark decision that banned the death penalty for juveniles. The Roper court ruled that it was unconstitutional to impose the death penalty on any offender who committed a crime while under the age of 18. The decision overruled Stanford v. Kentucky, 492 U.S. 361 (1989), a precedent set 16 years earlier which upheld the death penalty for juveniles 16 years and older.

In Roper, the court based its decision on “evolving standards of decency.” The court ruled that a “national consensus” against the death penalty for juveniles had evolved since its decision in Stanford. Interestingly, the day that Stanford was decided, the court had also upheld the constitutionality of the death penalty for mentally retarded offenders, Penry v. Lynaugh, 492 U.S. 302 (1989). Yet, in 2002, applying the “evolving standards of decency” test, the high court in Atkins v. Virginia, 536 U.S. 304 (2002) ruled that executing the mentally retarded violated the Eighth Amendment prohibition against cruel and unusual punishment. The U.S. Supreme Court has also recently banned the death penalty for non-homicide adult convictions, Kennedy v. Louisiana, 554 U.S.____ (2008).

In Roper, the court noted the infrequency in which the death penalty was applied to juvenile offenders. At the time only 20 states had laws permitting the imposition of the death penalty for juveniles. However, only six of those states had executed a juvenile since the decision in Stanford and five states had abolished the death penalty for juveniles all together. Roper also acknowledged international opinion, “The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom.”

Could the U.S. Supreme Court apply the “evolving standards of decency” test to Graham and Sullivan? Only eight states have juveniles serving LWOP for non-homicide offenses. Six of those states have six or fewer juvenile offenders serving life sentences. It would appear that the consensus in America is certainly against imposing LWOP for non-homicide convictions.

Graham has argued that life without parole is nothing more than “a delayed or a disguised death sentence.” Some agree that LWOP is not unlike the death penalty. Paul Wright, a former lifer, told the New York Times, "It's a death sentence by incarceration. You're trading a slow form of death for a faster one."

Trying to extend death penalty analysis to non-death penalty cases is tricky business. The U.S. Supreme Court has always recognized that the death penalty is “in a class by itself.” Furman v. Georgia, 408 U.S. 238 (1972).

The death penalty and LWOP are very different sentences. There are no second chances, clemency or new trials after the death penalty is carried out. After discovered evidence means little to an offender who has long since gone to his final resting place. Perhaps more importantly, LWOP has been promoted as a viable alternative to the death penalty. The decision in Roper resulted in the commutation of 72 juvenile death penalties; a significant majority of those juveniles on death row were re-sentenced to LWOP.

If LWOP is unconstitutional for juvenile non-homicide offenses, how long before the constitutionality of LWOP for juvenile killers is challenged? How far off are arguments that a 40-year or even 20-year sentence for a juvenile offender is cruel and unusual punishment.

Graham and Sullivan cannot merely be construed as a narrow issue concerning LWOP for juvenile non-homicide offenders. The implications are potentially enormous. The significance of a decision banning juvenile LWOP for non-homicide offenses, in the context of the high court’s recent narrowing of punishment for juveniles, cannot be overstated.

No Rush to Judgment

The Pennsylvania Law Weekly
March 31, 2008

Only days into the New Year a 12 year-old Florida boy was arrested for the murder of his 17 month-old cousin. He beat the toddler to death with a baseball bat. The boy told police the victim, a little girl, was making noise while he watched a cartoon on television.

If the state’s attorney had decided to charge the boy as an adult and he was convicted of first degree murder the court would have been required to impose a sentence of life in prison without the possibility of parole (LWOP). Although the boy was not charged with first degree murder, the prospect of a 12 year-old boy being sentenced to LWOP has rekindled the debate about sentencing juveniles as adults.

Life without parole is not unlike the death penalty. Paul Wright, a former lifer, told the New York Times, “It’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.” Only three years ago the United States Supreme Court banned the execution of juveniles. The decision in Roper v. Simmons resulted in the commutation of 72 juvenile death penalties; a significant majority of those juveniles on death row were re-sentenced to LWOP.

In the last several months, articles in the New York Times, Chicago Tribune, and Detroit Free Press have written about halting the practice of sending juveniles to prison for life with no hope of parole. The USA Today recently published an op-ed calling for reform in sentencing juveniles. With mounting public pressure, policy makers would do well to proceed with caution.

The surge in juvenile LWOP sentences is a relatively new phenomenon. Prior to 1980, juveniles sentenced to LWOP were extremely rare. As violent crime rates soared in the 1980’s the rallying cry in state legislatures across the country was “adult crime, adult time.” Criminologists warned of the “superpredators;” those uber-violent juveniles without remorse who kill at will.

Forty-two states authorize sentencing juveniles to LWOP. Fourteen states allow a minor to be tried as an adult at any age. Pennsylvania is one of those states and also leads the nation in juveniles serving LWOP. Pennsylvania has at least 330 offenders who were sentenced to LWOP as juveniles. Across the country more than 2,250 offenders are serving life sentences in adult prison for crimes committed as minors.

When the U.S. Supreme Court made the landmark decisions in Roper as well as Atkins v. Virginia, banning the execution of the mentally retarded, the justices cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the acts of state lawmakers to establish a national consensus. When Atkins was argued, 30 states had banned the execution of the mentally retarded. When Roper was argued, 30 states had banned the execution of juveniles. Today, only eight states have banned LWOP for juveniles. In 2006, Colorado became the most recent state to repeal juvenile LWOP.

How did Pennsylvania become the nationwide leader in locking away juveniles for life? Following former Governor Tom Ridge’s special legislative session on crime in 1995, juvenile law changed dramatically. Most significant was the change in charging juveniles as adults. Prior to 1995, district attorneys had to request “certification” from the court to charge a juvenile as an adult. Today, district attorneys must charge a juvenile as an adult for specific offenses and the juvenile can request “decertification” to juvenile court.

According to the Pittsburgh Post-Gazette the number of juveniles committing murder nationwide dropped by nearly 55 percent between 1990 and 2000, yet the percentage of juveniles receiving LWOP increased by 216-percent. Fifty-nine percent of juveniles serving life had no previous criminal record and one in four were convicted of felony murder. The offender may have been a getaway driver, lookout or an accomplice in a robbery gone bad. Felony murder holds all offenders involved to the same level of responsibility as the primary perpetrator.

California has also been prodigious in imposing life sentences on juvenile offenders. A juvenile charged and convicted of murder as an adult with any of a long list of special circumstances can be sentenced to LWOP. There are currently 227juveniles serving LWOP in California. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. California is not alone. Illinois, Florida, Nebraska and Michigan are also considering similar legislation, a significant number but not exactly a national consensus.

A case in Rhode Island points to the consequences of having inadequate options with regard to sentencing dangerous juvenile killers. In 1987, thirteen-year-old Craig Price murdered his neighbor. He stabbed her 58 times. Two years later, Craig stabbed and murdered Joan Heaton and her eight and ten-year-old daughters. At the time in Rhode Island children charged with a crime under 16-years-of-age could not be transferred to adult court.

Although Price nonchalantly confessed to the four murders he could not be held beyond the age of 21. Rhode Island had two juvenile lifers; both were over the age of 16 when they committed their offense. The law in Rhode Island has since been amended to address juveniles under the age of 16 who kill.

Many involved in Price’s prosecution argued that he was a dangerous serial killer and should be locked up for life. They fought to keep Price in prison where he remains today. The latest maneuver to keep Price in prison was a contempt of court sentence of 25 years for failure to submit to a court ordered psychiatric evaluation.

Lionel Tate was a twelve -year-old Florida boy who, in 1999, was convicted of first degree murder and sentenced to life in prison. Tate brutalized a six year-old girl, later arguing he accidentally caused her death while imitating wrestling moves. He spent five years in prison. In 2004, a Florida appellate court overturned his conviction on grounds that his competency had not been properly evaluated before his trial in 2001. He later pled guilty to second degree murder and was sentenced to 10 years probation. He was released to his mother four days before of his 17th birthday. According to The New York Times, Tate’s lawyer said the teenager “posed no risk of flight or danger.”

Within months Tate was cited for violating his probation. He was out after curfew and armed with a knife with an eight-inch blade. Fourteen months later, armed with a gun, Tate robbed a pizza delivery man. He received a 30 year sentence for his latest probation violation. He recently pled guilty to armed robbery. With all the notoriety and the outcry for Tate’s release, he could have ended up right where he started, and perhaps where he belongs, in prison for life.

Abolishing juvenile LWOP eliminates an appropriate sentencing option in some cases. In Pennsylvania, LWOP for juveniles convicted of first degree murder should be an option not a mandatory requirement.

Sentences, especially for juveniles sentenced as adults, should be specifically tailored for each individual offender. Judges in Pennsylvania should have discretion to sentence juveniles to something other than LWOP following a conviction of first degree murder. The idea in Pennsylvania that the juvenile lookout in a robbery gone badly should receive the same sentence as a juvenile serial killer doesn’t make good sense or good law.

A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. The governor has the ability to grant clemency. Pennsylvania should follow the lead of Colorado and establish a juvenile clemency board. The board would be charged with the unique process of reviewing offenders who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.

A solid approach to reconsidering LWOP for juvenile killers would include due consideration of public safety. This is not just a question of whether some violent juvenile offenders deserve to be locked away for life, but rather, do law abiding citizens deserve the protection that total incapacitation of dangerous offenders affords? Policy makers should not abolish LWOP without first deliberating the merits of judicial discretion and executive authority as appropriate corrective measures.

Wednesday, November 4, 2009

Murder along America’s Highways

At 10:37 a.m on July 14, 2009, John Fautenberry became the thirty-first man to die by execution in Ohio since the death penalty was reinstated in 1999. In the early 1990’s Fautenberry killed five people in four states including Joseph Daren, Jr. outside of Cincinnati. In a curious case with similar circumstances, Keith Hunter Jasper killed eight people in Nebraska, California, Florida, Washington, Oregon and New York. He is still alive but serving three life sentences in an Oregon prison. Then there is Bruce Mendenhall, currently awaiting trial in Tennessee for the 2007 murder of a woman in Nashville. He has also confessed to murders in Alabama, Georgia and Indiana.

According to the FBI, Fautenberry, Jasper and Mendenhall are serial killers. All three also share a second common trait—they each worked as long-haul truck drivers. Their common occupation is not a coincidence.

Recently, the Los Angeles Times reported that the FBI suspects long-haul truck drivers are responsible for the murder of hundreds of women whose bodies have been dumped near highways across the country. This spring the FBI revealed a five year old project known as the Highway Serial Killings Initiative. The Initiative links murder victims that have some connection to highways and suspects who are involved in long-haul trucking.

Information has been collected on more than 500 female victims of murder, some of whom were discovered along major interstates in eastern Ohio and western Pennsylvania. According to the Times, most of the victims were discovered at truck stops, nearby motels and along popular trucking routes crisscrossing the country.

What is the correlation between long-haul trucking and serial murder? Long-haul trucking lends itself to predators who want to circulate among strangers in strange places with the maniacal intent to kill and with ample opportunity to evade detection. An investigator told the Los Angeles Times, “You’ve got a mobile crime scene . . . you can pick a girl up on the east coast, kill her two states away and them dump her three states after that.’’ FBI special agent Ann Todd told the Chattanooga Times Free Press, “The mobile nature of the offenders, the high-risk lifestyle of the victims, the significant distances and involvement of multiple jurisdictions, the lack of witnesses and forensic evidence combine to make these cases almost impossible to solve using conventional investigative techniques.”

This is not to suggest that the truck driving profession is filled with diabolical killers. Most truckers are hard working law-abiding citizens who do many more good deeds than bad as they navigate America’s highways.

The FBI also admits that 500 homicides targeted by the Initiative may only be the tip of the iceberg. According to the Washington Post, there may be as many as 40,000 unidentified human remains known to exist nationwide.

The purpose of the Initiative was to help local law enforcement agencies connect the dots between local slayings and similar murders across the country. Originally, the Initiative’s work was only available to law enforcement entities. The FBI revealed the project this spring with the hope that public disclosure might generate additional leads.

Agent Todd told the Times Free Press that the Initiative has had some moderate success assisting in the arrest of at least eight killers suspected of more than 30 murders. Bruce Mendenhall, the alleged serial killer awaiting trial in Tennessee, was arrested as the result of information provided by the Initiative and good police work by a Nashville detective. In fact, the police work was so good, Mendenhall tried to solicit a cell mate to kill the detective.

Nationwide, thousands of murders remain unsolved. The FBI recently disclosed to the Associated Press that homicide clearance rates, the percentage of murder cases that are solved, has dropped from 91-percent in 1963 to 61-percent in 2007. As the number of unsolved murders increases, hundreds, even thousands, of killers move anonymously about society. The Highway Serial Killings Initiative may not drive up the homicide clearance rate, but it appears to have at least shed some light on a dark, mysterious and dangerous world unknown to many, and unfathomable to most.

Prisons Punitive for Ohio Taxpayers

Cleveland Plain-Dealer
November 9, 2009

Last year, America passed a dubious threshold. The Pew Center on the States reported that 1 in every 100 adults in the U.S. are in jail or prison. This summer, the Pew Center expanded its research into probation and parole. Their findings were even more startling. One in 45 Americans are under some form of community supervision. When you combine the probation and parole figures with the number of inmates in prisons and jails, nearly 1 in 31 are under some form of corrections control.

The soaring incarceration and supervision rates should not come as a surprise. In little more than 20 years the national prison population has nearly tripled from roughly 600,000 in 1987 to 1.6 million in 2007. Since 1983, the number of people on probation or parole has gone from 1.6 million to more than 5 million.

There is evidence that locking up more offenders, for longer periods of time has had some impact on declining crime rates. Steven D. Levitt, in his book, Freakonomics, suggested “imprisonment is certainly one of the key answers (to falling crime rates). It accounts for roughly one-third of the drop in crime.”
Is the “lock’em up” mentality worth the cost?
With expanding prison populations come ever-growing corrections budgets. As states and local governments face the worst recession in history, corrections expenditures are under increasing scrutiny.

Ohio and Pennsylvania are two of only a handful of states that have a prison population exceeding 50,000. With the average daily cost of housing an inmate at about $80 a day, the costs of incarceration are staggering. In fiscal year 2008, Ohio spent $1.76 billion on corrections and Pennsylvania spent $1.66 billion.

Pennsylvania has been without a budget for more than two months. The stalemate has left counties, municipalities, school districts and social service agencies without funding. The gap between GOP and Democratic leaders is about $1 billion. However, the legislature has approved the construction of four new prisons at a cost of approximately $200 million apiece. That price tag may be optimistic. That state has just rejected all bids for the newest facility at SCI Benner Township. The bids came in unacceptably high.

Ohio passed a budget in July that cut funding for colleges and universities by $170 million and public libraries by $84 million. Yet, Ohio has spent nearly a billion dollars to build 23 prisons since 1987. There is no end in sight. According to Lia Gormsen, writing in the Corrections Compendium, Ohio has passed 40 bills that enhance criminal penalties in the last two years. The new “tough on crime” legislation has further burdened a prison system that is 133-percent above capacity.

Recently, the Southern Ohio Correction Facility, sight of a deadly riot 16 years ago, announced its intention to vacate six of eight guard towers to cut costs. The Columbus Dispatch reported that the guards in each tower are among the few in prison who are armed. The union representing the corrections officers said they are “the last line of defense between the inmates and the community.”

There is research suggesting that there are effective ways to deal with prison crowding. A growing body of research exists regarding assessing risk. Lengthy sentences and supervision resources should be geared toward high risk offenders, while eliminating onerous sentences for low risk, non-violent offenders.

Long sentences for some inmates are actually counter-productive. A recent study of the Michigan corrections system, by the Citizens Alliance for Prisons and Public Spending, found that keeping inmates behind bars for long periods does little for reducing crime.

The way we approach law enforcement and supervision can also have an impact on incarceration rates. Crime does not occur in equal proportion through-out a community. Therefore, law enforcement and supervision resources should not be dispersed equally across the entire community. Focusing resources on “hot spots” at “hot times” can enhance law enforcement and supervision as well as reduce crime and cut-down on recidivism.

Solving the prison largesse will take more than rhetoric. As long as lawmakers continue to posture for the tough on crime vote and ignore the “smart on crime” evidence, prisons will continue to grow and taxpayers will continue to flip the bill.