[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome Mary Price to our broadcast today.

She is formerly general counsel to Families Against Mandatory Minimums, and now she serves in senior counsel role at the organization.

Mary, a pleasure to speak with you today.

Thank you so much for inviting me, this is a topic that I'm thrilled to talk about.

Mary, for our viewers who are not aware of the work that Families Against Mandatory Minimums has embarked on since 1991, can you give us a snapshot of the organization, what it sought to accomplish, what you feel it has accomplished and what your vision is for it to accomplish in the future?

Absolutely, thank you.

So FAMM was founded originally by the sister of an individual who had, been incarcerated for a five year mandatory minimum.

He and two of his friends had been growing marijuana in a barn somewhere in Washington state.

The reason that Julie Stewart started this organization stemmed from her attendance at a sentencing hearing, where she learned that the judge's hands were tied, that his particular offense required a federal prison term of five years, a mandatory minimum.

And she was stunned to hear the judge say that his hands were tied.

And this was not her conception or many people's conception of what a judge is able to do.

And it's sort of in the word, in the name judge, that one has discretion.

And that is taken away by our federal system and many state systems with mandatory minimums.

So she founded this organization as the loved one of a person who had been incarcerated under sentencing laws.

And she gathered together people similarly suited.

So the organization was founded by family members of loved ones, of people incarcerated, often under these very harsh mandatory minimum laws that have been put in place to fight the war on drugs.

You know, in other sort of, perceived crime problems as a potential solution.

And early on, she recognized that for lawmakers to be able to understand the impact of those mandatory minimums wasn't just going to rely on sort of numbers and data, but in fact, human stories were going to be really, really important to humanize the impact of harsh sentencing practices.

And so our organization's today, much larger than it was when Julie founded it.

We are made up of, currently and formerly incarcerated people, their families and loved ones and just diverse others who are interested in, criminal sentencing reform, and criminal justice reform.

Our name's actually changed.

We were Families Against Mandatory Minimums because we broadened to some extent our palate, as it were, of reform work.

We've shortened our name to FAMM, all capital letters.

And, part of that is because we now focus our work on sort of three key areas, sentencing reform being our sort of flagship work, right?

And then, prison oversight, independent prison oversight is important to us because we hear so often from individuals who are incarcerated about the conditions under which they're serving their terms.

And finally, of course, and I think we're gonna talk about more today, second chances.

We are an organization has helped sort of create urgency and craft, you know, lasting solutions around these issues.

And I do want to ask you about that, but I do want to go to the origin story for a moment, because it seems to me that, what you were identifying, as some of this mischievous legislation was being, implemented, was the way that, legislatures around the country and the federal government, to an extent, wanted to make this a maze in a kind of mindless bureaucratise of mazes to, not have a straightforward process.

There is still the idea of accountability and redemption and in rehabilitation, no free passes.

But the thesis, upon which you were operating was that, in too many states, and maybe federally too, that sentencing was being, rejiggered, to preclude people from being able to rehabilitate.

I mean, and I just wonder if that is still an accurate synopsis of where we stand today.

I think unfortunately it is.

It may be less so in some places than in others.

But the impact, if not the intent of mandatory sentencing and excessive sentencing laws is that we lock people up for far longer than is necessary to meet the purposes of punishment.

And in so doing, one of those purposes being rehabilitation.

Right?

And so doing we... the rehabilitation goal can be, shoved aside or even lost.

I mean, if you're locking somebody up for the rest of their life or what will be the rest of their life, people don't even get rehabilitated programing in those circumstances because they're considered not to be eligible for it.

They simply won't get out.

So I think that, yeah, we have lost in some sense, our finger on sort of the pulse of what our purpose is, why we incarcerate people in the first place, why we sentence them.

And we have, you know, lots of reasons for that.

I mean, some of it has to do with punishment, and some of it has to do with deterrence and public safety.

But rehabilitation is one of those sort of four standards that holds up, the sentence and you're right.

I think that it is... rehabilitation is hindered, when we incarcerate people for too long and I'll just add one of the quick thing, which is that long sentences were supposed to sort of discourage, people from, committing crime, for example, of doing these offenses.

And it's been proven that long sentences are not a deterrent.

What's a deterrent is that the certainty of swift and effective capture, is it were, that you're apprehended for something.

You're caught doing something, but not necessarily that you're locked up for many, many years.

In your mind, the compassionate release agenda has really blossomed.

Is that a way of counteracting what have been the stringent, standardization of, excessive sentences?

And, these very high thresholds of minimum sentences, that compassionate release is in effect, a solution.

And as counsel now, senior counsel, you are at the forefront of understanding, how to manage this.

You know, from a perspective of torts, from a perspective of the law.

And so am I right to understand.

And for our audience to understand is compassionate release as kind of the response to a culture of excessive sentencing?

It certainly is one of... when I think about compassion.

So compassionate release, is generally understood is the way for systems to release people, particularly those who are gravely ill or debilitated, people who are near the end of their life and in half the states and in the federal system, people who are of a certain age and have served a certain amount of time in prison and sometimes have other conditions.

So that's the kind of framework, compassionate release when I think about, those purposes of punishment that we're talking about earlier, in my view, compassionate release should be used, as you kind of suggest, when the purposes of punishment are no longer being met.

And so, particularly in the cases of people who are medically fragile and terminally ill, the purposes of punishment are no longer met.

You're not going to deter somebody by keeping them incarcerated longer.

They're not going to benefit from rehabilitation if they don't even know where they are.

If we're punishing them the punishment that they are suffering medically will be much more severe.

And this is not what the court intended.

The courts did not intend to sentence people to painful and lonely deaths for the most part, so compassionate release feels like in some ways this kind of classic view of compassionate release, the medical based, compassionate release seems like, in some sense the flagship for us when we're thinking about second chances.

Because I will tell you, the federal system in every state but one has some form of that medically based compassionate release program and some of them have multiple ones.

When you call it compassionate release as opposed to fair release, just release.

My concern, and we've had other guests talk about this subject, in recent months is that, it's more vulnerable as a message.

Then if you broadened the scope of what you're talking about, and I don't even, broaden might not be the right word, redefined.

Because compassion suggests that it's an extra step that there's some kind of charity here.

Being offered when it's really just fairness and when these people should have been or ought to be released, right?

So I don't know if this is relevant in actually the case law, but I'd be interested in that too.

The jurisprudence around, compassionate release and how people are defining it.

Well, I tell you, very, very few systems use the term compassionate release, but for a very different reason.

I think that they shy away from compassionate release, because it sounds to charitable, to generous, to, I don't know, I don't know, you know, what that is, but that it is.

Most jurisdictions were much more comfortable with terms like medical parole, or geriatric release, or medical release, or conditional medical release.

There's lots of different terms for it.

I use compassion because it centers, I mean, I use it as an umbrella term, and I admit it's a poor umbrella term.

It's but I still use it.

And a lot of people use it just because it sort of centers the individual's experience so that when we're designing a compassionate release program, when a lawmaker is thinking about doing this, we want them to think about the experience of the individuals who are in that system, the people who are evaluating them, the people who are making decisions about them, the people who love them, the people themselves who are caught up in the system and those who care for them.

All of those people have to be taken into consideration, I think.

And so compassion seems like the best word in the circumstance to talk at least about, individuals again, who are medically frail.

And again, it's not used very often.

We don't use it everywhere when we're talking.

But, among friends, it's a good term to use.

No, no, that's fair.

And, perhaps I was not being clear enough in my point that, FAMM has identified -the unfairness of sentencing.

-Yeah And, if there is a movement to unwind, that and to reverse, the legislative steps that were made law in the states.

So there aren't so many hoops to go through, to be rehabilitated, or that it's not just a monetized kind of, system where even though you can be rehabilitated in three years, the punishment is ten years.

Has FAMM, in your mind, or the justice movement identified a way of talking about that more expansive sector, then compassionate release?

Absolutely.

I mean, I think that's the work of, we have a whole second chances agenda, which involves not just compassionate release.

I called it the flagship of that effort.

But, some of the things I think you talk about on this show, these are things like, second look laws that allow individuals for their sentences to be examined again by somebody after a certain period of time.

We see it a lot in the juvenile context after the Miller decision, of course.

And that concept has spread, right?

So that we see second look legislation in a lot of different places, even the federal system going back to the compassionate release statute, the compassionate release statute in the federal system is not called compassionate release it's called, reduction of sentence for extraordinary and compelling reasons, and so extraordinary and compelling reasons, you know, that's a big term, right?

And so in the federal system, compassionate release, and we can talk about this later, has grown from simply a medical release program to one that contemplates, for example, whether somebody ought to be released because, their parents or their surviving parent has nobody to care for them.

We have, a rule in the federal system or a guideline rather in the federal system, that somebody can seek a reduction in sentence, if they're serving a sentence it could no longer be imposed today because of a change in the law.

They've served at least ten years of that sentence.

And if you look at that sentence in comparison, which were the ones that could be, imposed today, there's a gross disparity between them.

So gross disparity between the sentence one serving and the one that they would be serving today, that's the ground right now for compassionate release in the federal system.

So at least in the federal system, the lens on second look, the lens on compassionate release has widened, rather dramatically in the last few years.

It still feels like when you use that term, you know, extraordinary, exceptions to the rule, it still seems like it's an uphill battle in... Yes.

I know you know that, but you've felt that for decades now.

But in the nomenclature here in the consciousness of the public because, you know, as the most incarcerated country in the world per capita, Or at least the developed country with the highest incarceration rate per capita, it seems like we still fail to understand that we're the exception.

We're not making extraordinary exceptions, we're extraordinary in our proclivity for incarceration.

No question.

And I just, it still hasn't registered enough of my sense is, and I don't know if that's your sense too, but that is an existential and systemic question.

And I don't know if you want to tackle it, but I want to give you an opportunity to do so.

No, you're absolutely right.

I mean, we have the longest, harshest sentences of almost any country.

We incarcerate more of our citizens and I think almost every other country per capita does.

There's no question in the sentences are, as you pointed out at the beginning of this conversation, extremely long.

So long that they defeat any idea of rehabilitation.

I think extraordinary and compelling, it's a statutory term, we have to deal with it.

In our federal system, once a sentence is imposed, it cannot be changed except for very few very narrow circumstances or allegedly, very narrow circumstances.

You know, one of those.

So the thumb is on the scale of finality, right?

And you'll hear finality a lot.

We get finality pushed back against, in litigation against people who are seeking compassionate release.

Well, you know, we expected to put this person away for this period of time.

They ought to serve their sentence.

And, you know, it's too bad what happens to them.

But in fact, they really were carved out, exceptions to finality.

And one of them is when individuals develop these extraordinary and compelling reasons, what they said, what Congress said, with the legislation directed is that the Sentencing Commission, the US Sentencing Commission, should describe what those extraordinary and compelling reasons are.

And initially, as we've talked about earlier, they were for medical and terminal and geriatric people who are aging in prison.

It doesn't begin to touch the decarceration issue.

We're nowhere near doing the job that we need to do in our system, anywhere to right size sentences and to right size, and so you have to work and, you know, I mean, FAMM's reach on this is in part trying to get at that sort of collective understanding that we have to lock people up for a long time to keep our community safe.

I mean, one of the things that FAMM has done from the very beginning is to elevate the voices of people who have been harmed by the criminal justice system, whether it's people who were incarcerated in it, are incarcerated in it, or people who are loved ones of theirs.

And we elevate their voices through storytelling, but also to building advocacy skills, helping people stand up in front of, going to lawmakers offices and talk about their situations, telling them about what it really means, this law that you passed, this law that you supported, perhaps this is what happened as a consequence.

Those stories are gold.

And, you know, that's been a hallmark of our work from the very beginning.

We have a whole storytelling team now, that, works with families to engage them and support them.

That's helpful.

And I know you hear my point that the term, the legal term, extraordinary and compelling could just as easily be used to describe the severity of sentencing.

And we could in a inverted state, right?

And if you want to reverse engineer the problem, it would be extraordinary and compelling to justify a long sentence.

In this country we need something extraordinary and compelling to justify a short sentence.

And, you know, this has been my point about jurisprudence in America for a long time.

The prosecutors won the day and it is a prison industrial complex as a result, right?

Remains to be seen if the public defenders and the good Samaritans and system impacted people will win the next day, if that day may or may not come at any point in our lifetimes.

But you point Mary, two examples, and we'll go back to a compassionate release as a success story in North Carolina, California, Maryland, as examples you might, explain to our viewers of where compassionate release worked or where it can be working.

Right, thank you.

I just want to say one thing though.

Yes.

Back to your point earlier, sorry.

One of the things that really strikes me, about lawmaking, you know, there have been instances where, a statute will be passed that lowers a sentence, right?

Or reduces the number of people who are subject to a particular kind of sentence.

But there's prospective only, unless Congress or the legislature says that they apply retroactively.

And so what happens is, and this has happened fairly recently in the First Step Act, excessive sentences for, people with three strike drug offenses or crimes of violence and people who had these huge stack sentences for possessing guns along with, you know, whatever crime they were committing, even if they didn't use them, they get 25 years stacked, one on top of the other for every incident of the gun in their first criminal proceeding, those were eliminated or changed, I shouldn't say eliminated, but they were shortened dramatically.

But that change was not made retroactive, right?

So you have all these people who are serving time in prison, whose stories were used, who were the examples of the exemplars of excessive sentencing, who are serving out those sentences.

And so one of the battlegrounds, in the compassionate release reduction sentence field where we operate is convincing courts that that fact that a person is serving a sentence that is grossly disparate to the sentence they would have received is an extraordinary and compelling reason, rather than just having either a thumb on the scale of retroactivity, when you change a law and make fewer people eligible for those sentences.

Yeah.

So I just... Yeah, no, I'm so glad you said that because it brings to mind, the thumb on the scales, the battleground of retroactivity, retroactivity and sentencing reform has not been accomplished.

You know, may have in a few jurisdictions, but it's a huge void.

And yeah, it took ten years for the, change from 100 to 1 powder crack quantities triggering mandatory minimums, being changed to 18 to 1.

Took ten years for that change to be made retroactive.

While we're on the subject, and I want you to touch on the states before we close, but is there an organization, it may be FAMM or another organization that is singularly focused on getting retroactivity, to be the law.

So, anywhere that jurisdiction is following new rules that that can be applied to system impacted people who are in jail or prison.

I'm not aware of it in any state jurisdiction, but I don't.

-I don't know the... -It seems like that issue would command a huge platform for it to be the single focus of one organization.

Yeah.

That's interesting.

It would also be a bit of an uphill fight, I think.

I mean, there might even be constitutional concerns about it in some jurisdictions.

It's interesting going back for a moment to the compassionate release or to that system.

You know, I was talking about the fact that the reduction, the sentencing statute, values, you know, finality, and doesn't permit a judge to go back and revisit a sentence once it's been finalized.

But there's another exception besides extraordinary and compelling.

And that is when the US Sentencing Commission lowers a sentence, a guideline sentence and then decides to make that change retroactively available to people who were serving the sentence, before it was lowered.

And that's been done in a number of occasions, to great effect.

And, it's not an automatic get out jail free card.

Right?

One has to go to court and ask the court to evaluate, number one, whether they're eligible for that reduction.

And number two, whether they should return to the community.

And the judge looks at a number of different factors, including public safety.

But it's a real model, I think, for how a jurisdiction might be able to begin to get at this problem of prospective only, of course, you presuppose that there are all these jurisdictions out there lowering sentences, and that may not be happening.

Right, so there has to be... We have to hit that hurdle first, right?

Right.

And I hear you saying that petitioning sentencing commissions on the state level, if they exist.

it sounds like state sentencing commissions are an important battleground here too.

I think so I'm not as familiar with state sentencing commissions.

This is the Federal Sentencing Commission which has been given this authority.

But, right.

I think, in the battle to go after excessive sentences and to do second looks, we shouldn't let any agency be ignored.

You know, there's always somewhere there's got to be some give, somewhere there's got to be some room.

You know, there may be a rule that one can change.

I mean, we talk a lot about legislation, but honestly, regulations and rules really matter.

And it's a lot of the it's a, sometimes a lot of the battleground when we're talking about, compassionate release in the states, for example, because we're really looking at what are corrections systems doing to identify people who are eligible for compassionate release.

What are parole boards, what are their rules?

What are they following?

And we can't ignore the possibility for systemic reform, focusing not just on statehouses, but also on departments of corrections and parole.

So we only have a couple of minutes left, Mary.

-No.

-But if you can, expound on what we've learned in the processes in North Carolina, California, Maryland, feel free to talk about them uniformly, or each one itself.

So I'm most excited I think about California, which changed its recall of sentence law a few years ago.

It's a process that we worked on, and it has transformed medical release in California, which used to be used very, very sparingly.

Most people had to go to medical parole, it didn't work out very well.

And so there was a big effort to reform it.

California, adopted several definitions of people who are now eligible for compassionate release, terminally ill people now, generally in the state systems, terminal illness is defined by, amount of time left to live, which is a very poor indicator of one's vulnerability because doctors routinely, fail to accurately predict, the amount of time an individual has left to serve.

It's not a science, prognostication is not great.

But a lot of systems like Kansas you have to be within 30 days of death to even begin the process for compassionate release.

And you can imagine what happens there.

California adopted a definition of terminal illness which says, the individual has a serious and advanced illness with a with an end of life trajectory.

So they abandoned the prognostication entirely, which has been tremendous.

And they also, made eligible people who were permanently, and medically incapacitated with a condition that rendered them unable permanently to perform activities of daily living.

And the two things I want to say, two things I want to say about these, number one is that it indicates that there were medical professionals in the room when this law was being drafted, which is very, very rare.

And when we talk about, reforms to a system, we always recommend that lawmakers and stakeholders engage medical professionals who know what they're talking about, because a lot of these laws, when you look at them, they don't.

The other thing that California did that was just sort of revolutionary is that once the system, once the Department of Corrections medical professionals decided that a person met one of these criteria, their case goes to court and it has to happen within a certain period of time.

The court has to rule in a certain period of time.

And the presumption is a presumption of release unless the individual poses a very specific danger, of committing a violent crime.

Yeah, I could understand how that mechanism would be more humane and not get stuck -in the bureaucracy.

-Right.

And it avoids a lot of states have categorical exclusions.

They have a couple of categorical exclusions here.

But it avoids having the Department of Corrections, the people whose job it is to keep people incarcerated making the decision about whether people should be released.

So it goes to the court, the court has the discretion to determine whether the individual meets those criteria and whether they would pose that risk that we talked about earlier.

And it's been transformative.

Mary Price, senior counsel at FAMM, thank you so much for your insight today and for keeping our viewers abreast of this important subject matter.

Thank you so much for having me.

What a great interview.

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