May 31, 2011
"The Right Way to Shrink Prisons"
The title of this post is the headline of this notable new New York Times op-ed authored by Shima Baradaran, who is a BYU law prof and chairwoman of the ABA's Pretrial Release Task Force. Here are excerpts:
Last week the Supreme Court ordered California to reduce its prison population after finding that the state’s penal system was so overcrowded that it constituted cruel and unusual punishment. What the court didn’t do, however, was provide any guidance about how to do it, giving rise to fears of violent convicts being set free and increasing crime rates.
Rather than seek major criminal justice reforms to reduce the prisoner numbers, including scrapping California’s harsh “three strikes” sentencing laws, Gov. Jerry Brown has proposed simply moving the surplus state prisoners to county jails. This does nothing to reduce California’s disproportionately high incarceration rates and could just transfer the overcrowding to local jails.
Fortunately, there is a more lasting solution to overcrowding, one that gets to the heart of exploding inmate populations nationwide: reform the rules governing pretrial detention, in part by using formulas to help judges better determine which defendants are unlikely to commit crimes while on bail. Doing so not only would make the system more fair, but also would significantly reduce the number of people who are unnecessarily jailed and even reduce crime rates.
Every year America spends close to $66 billion to keep people behind bars. But almost 500,000 of the 2.3 million prisoners aren’t convicts; rather, they are accused individuals awaiting trial. While some defendants are able to pay their bail and go free, most cannot, because many judges, lacking firm insight into what types of prisoners are too dangerous to release, set high bail amounts knowing the accused can’t afford them. Though some of these defendants will eventually be found not guilty and go free, keeping them incarcerated before their trials creates a burden on the prison system.
What’s more, detention begets more detention. Defendants detained before trial are more likely to be convicted if they go to trial, more likely to receive prison sentences rather than probation when sentenced, and, given their weak bargaining power with prosecutors while locked up, are more likely to have longer sentences....
The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.
For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail. On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.... [O]ur models indicate that such guidelines could safely lead to the release of up to 25 percent more defendants — and a significant reduction in prison costs and crime rates.
Given eye-popping local, state and federal deficits, it’s unlikely that California will be the only state to face the tough choices involved in reducing its prison population. With the right data on pretrial defendants, though, judges can help make that task a lot easier.
A SCOTUS day for criminal procedure, lots of federal sentencing opinions to come in June
Thanks to the live-blogging by the folks at SCOTUSblog, I can provide this brief summary of the Supreme Court's criminal justice work this morning:
[Cert is granted in] Perry v. New Hampshire [which] presents a question involving identification of criminal suspects. Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?
Ashcroft v. al-Kidd is [decided; the] opinion is by Justice Scalia. The decision of the Ninth Circuit is reversed; the vote is eight to zero with Justice Kagan recused. The Court holds that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstititional on the basis of allegations that the arresting authority had an improper motive. In al-Kidd [available here] there are three concurring opinions.
I am a bit surprised and a bit disappointed that we did not get any sentencing opinions this morning from the Justices. This reality in turn means that June is to now sure to be a busy SCOTUS sentencing month. Here is my list of sentencing cases still pending (with links to SCOTUSblog page):
- Sykes v. United States (argued in January, application of ACCA)
- Freeman v. United States (argued in February, sentencing modification authority)
- DePierre v. United States (argued in February, definition of cocaine base)
- Tapia v. United States (argued in April, rehabilitation concerns as basis for imprisonment term)
- McNeill v. United States (argued in April, application of ACCA)
I suspect Sykes and McNeill will come down together, which itself perhaps helps explain why Sykes has not yet been decided nearly five months after it was argued. Similarly, Freeman and DePierre may come as a pair even though they involve distinct statutory issues. And I suspect we will not see Tapia, which likely could be the most consequential of this pending bunch because it concerns application of 3553(a)(2) factors at sentencing, until the tail end of the Term in late June.
An additional note about the SCOTUS docket: Add all the pending sentencing cases to the already decided Abbott and Pepper and Plata cases and we discover that roughly one-tenth of the decisions in argued cases in the October 2010 Term deal with sentencing issues and that this sizeable portion of the SCOTUS OT2010 docket involves mostly "technical" statutory federal sentencing issues and does not involve the death penalty in any way. In my view, these interesting new docket realities probably reflect the impact and input of Justices Alito and Sotomayor, both of whom have a notable professional history with, and an obvious continued interest in, statutory federal sentencing issues.
James Q. Wilson's interesting take on what is behind falling crime rates: culture
The Wall Street Journal over the weekend published this great essay by renown social scientist James Q. Wilson under the headline "Hard Times, Fewer Crimes." The piece provides an extended and very interesting set of explanations for the wonderful modern declines in crime rates in the United States. The piece demands a full read, and here are just a few parts of Wilson's assessments:
[W]e have little reason to ascribe the recent crime decline to jobs, the labor market or consumer sentiment. The question remains: Why is the crime rate falling?
One obvious answer is that many more people are in prison than in the past. Experts differ on the size of the effect, but I think that William Spelman and Steven Levitt have it about right in believing that greater incarceration can explain about one-quarter or more of the crime decline. Yes, many thoughtful observers think that we put too many offenders in prison for too long. For some criminals, such as low-level drug dealers and former inmates returned to prison for parole violations, that may be so. But it's true nevertheless that when prisoners are kept off the street, they can attack only one another, not you or your family.
Imprisonment's crime-reduction effect helps to explain why the burglary, car-theft and robbery rates are lower in the U.S. than in England. The difference results not from the willingness to send convicted offenders to prison, which is about the same in both countries, but in how long America keeps them behind bars. For the same offense, you will spend more time in prison here than in England. Still, prison can't be the sole reason for the recent crime drop in this country: Canada has seen roughly the same decline in crime, but its imprisonment rate has been relatively flat for at least two decades.
Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods. We have only the faintest idea, however, about how common these trends are or what effects on crime they may have.
Policing has become more disciplined over the last two decades; these days, it tends to be driven by the desire to reduce crime, rather than simply to maximize arrests, and that shift has reduced crime rates. One of the most important innovations is what has been called hot-spot policing. The great majority of crimes tend to occur in the same places. Put active police resources in those areas instead of telling officers to drive around waiting for 911 calls, and you can bring down crime....
There may also be a medical reason for the decline in crime. For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.... Tests have shown that the amount of lead in Americans' blood fell by four-fifths between 1975 and 1991. A 2007 study by the economist Jessica Wolpaw Reyes contended that the reduction in gasoline lead produced more than half of the decline in violent crime during the 1990s in the U.S. and might bring about greater declines in the future. Another economist, Rick Nevin, has made the same argument for other nations.
Another shift that has probably helped to bring down crime is the decrease in heavy cocaine use in many states....
Blacks still constitute the core of America's crime problem. But the African-American crime rate, too, has been falling, probably because of the same non-economic factors behind falling crime in general: imprisonment, policing, environmental changes and less cocaine abuse....
John Donohue and Steven Levitt have advanced an additional explanation for the reduction in black crime: the legalization of abortion, which resulted in black children's never being born into circumstances that would have made them likelier to become criminals. I have ignored that explanation because it remains a strongly contested finding, challenged by two economists at the Federal Reserve Bank of Boston and by various academics.
At the deepest level, many of these shifts, taken together, suggest that crime in the United States is falling — even through the greatest economic downturn since the Great Depression — because of a big improvement in the culture. The cultural argument may strike some as vague, but writers have relied on it in the past to explain both the Great Depression's fall in crime and the explosion of crime during the sixties. In the first period, on this view, people took self-control seriously; in the second, self-expression — at society's cost — became more prevalent. It is a plausible case.
Culture creates a problem for social scientists like me, however. We do not know how to study it in a way that produces hard numbers and testable theories. Culture is the realm of novelists and biographers, not of data-driven social scientists. But we can take some comfort, perhaps, in reflecting that identifying the likely causes of the crime decline is even more important than precisely measuring it.
A few recent related posts on how to account for still-dropping crime rates in the US:
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Making the full-throated case for the notion that more Internet = less crime
- Another account of the crime rate's changing realities: blame the baby boomers
Rubashkin appeal raising more questions about high-profile federal fraud case
Regul;ar readers likely recall some aspects of the high-profile federal case, detailed in this prior post, in which last summer a federal district court in Iowa decided to give Sholom Rubashkin a 27-year federal prison sentence for his leadership in a financial fraud involving his kosher meat-packing plant. As explained in this post, I helped put together an amicus brief on sentencing issues as the case comes before the Eighth Circuit, and thus I am not a truly non-partisan observer of these proceedings. Nevertheless, anyone interested in this case or more generally in the administration of the federal criminal justice system will want to check out this new article from the Des Moines Register headlined "New questions surface about impartiality of federal judge." Here are excerpts:
The court schedule of a federal judge who faces allegations of bias in the financial fraud trial of Sholom Rubashkin has raised fresh questions about judicial impartiality. Defense attorneys argue that Rubashkin, who is serving a 27-year sentence, deserves a new trial because U.S. District Chief Judge Linda Reade failed to disclose all of the meetings she held with prosecutors before a 2008 immigration raid on Agriprocessors, a kosher meatpacking plant in northeast Iowa where Rubashkin served as an executive.
Oral arguments are scheduled for the afternoon of June 15 at the 8th U.S. Circuit Court of Appeals in St. Louis. That morning, Reade -- a judge in the Northern District of Iowa temporarily filling in on the appeals court -- will hear cases with two of the three judges who will later listen to arguments in Rubashkin's appeal. Reade is also scheduled to sit with the same judges a day earlier.
The scheduling is unfortunate because the subject of the appeal is judicial impartiality, said Steven Lubet, a law professor at Northwestern University. However, he said he doesn't expect it to disqualify any of the judges from hearing the case. "I would call it awkward, but I don't think there's anything more to say about it," he said....
Many also questioned the 27-year sentence she handed down, two years more than the prosecution requested. Before sentencing, six former U.S. attorneys general signed a letter expressing their concern about the sentence sought by prosecutors. The American Civil Liberties Union of Iowa, the Washington Legal Foundation in Washington, D.C., and the National Association of Criminal Defense Lawyers filed legal briefs in support of Rubashkin's appeal.
Forty-five members of Congress have written to U.S. Attorney General Eric Holder to ask questions about the handling of the case. Last month, three members of the House of Representatives asked Holder about the case when he testified before the judiciary committee.
Reade had previously acknowledged that she worked with the prosecution on logistics before the raid to ensure attorneys and interpreters would be available for the 389 workers arrested on immigration charges, but offered no further details. The defense argued Reade failed to disclose that she began meeting with law enforcement officials more than six months before the raid, and that she discussed topics far beyond "logistical cooperation."...
Lubet, the law professor, said he can't imagine why Reade decided to sit on the trial. By doing so, she became a judge who made a point of assisting the prosecution in at least the initial stages of the case, he said. "Why not have a judge who had nothing to do with the prosecution, instead of one who had devoted significant time and energy into facilitating it?" he said.
Related prior posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
May 30, 2011
"Chinese Court Orders Death Penalty for Food Safety Crimes"
The title of this post is the headline of this international news piece, which gets started this way:
China's top court issued a notice on Friday calling for the death penalty for food safety crimes that lead to fatalities. It comes amid widespread public anger over safety scandals in recent months.
Contaminated pork, toxic milk powder, dumplings containing aluminum, watermelons sprayed with dangerous chemicals, and other tainted foods have been reported recently — highlighting the Chinese regime's difficulty managing the country's poorly regulated food industry.
Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?
The question in the title of this post is inspired by this new local piece headlined "Opponents of three-strikes law see hope in prison ruling." Here are excerpts:
The U.S. Supreme Court’s ruling last week requiring California to cut its prison population by more than 33,000 inmates within two years could boost efforts to modify or repeal the state’s three-strikes law, which some say keeps nonviolent offenders in prison for far too long. The law, approved by voters and the Legislature in 1994, significantly increased prison terms for repeat offenders with previous convictions for violent or serious felonies as defined by state law, putting some behind bars for life.
Opponents of the three-strikes law have argued for years that it is overly harsh and keeps people in prison decades after they stop being dangerous — because of age, medical problems or both — exacerbating the state’s prison overcrowding problem.
A main argument against the law has been that a person with two strikes can be sentenced to 25 years to life for a nonviolent offense, such as petty theft. “We over incarcerate in California, and this U.S. Supreme Court decision is an impetus to change that,” said Erwin Chemerinsky, founding dean at the University of California Irvine Law School....
Supporters of the three-strikes law, including San Diego County District Attorney Bonnie Dumanis, insist it’s a good law, if applied correctly. They note that judges and prosecutors now have the discretion to decide when it should be applied, which wasn’t the case immediately after the law was approved. “Most district attorneys aren’t sending people to prison for 25 years to life on a nonviolent offense,” Dumanis said.
She acknowledges that the three-strikes law has affected prison overcrowding but it wasn’t a major factor. A bigger contributor, she said, is California’s 70 percent recidivism rate. The people convicted under the three-strikes law “weren’t the large numbers that everybody was anticipating,” Dumanis said.
According to a report by the state Legislative Analyst’s Office, roughly 41,000 inmates — about 25 percent of the total prison population — were serving time in prison under the three-strikes law as of Dec. 31. Of those, more than 32,000 were second-strikers and about 8,700 were third-strikers.
The report says that although the population of inmates incarcerated under the three-strikes law grew quickly in the first years it existed, the rate of growth has slowed significantly over the past decade as second-strikers finished their prison terms and were released on parole....
“The reality is that California has to release some inmates,” [Chemerinsky] said, noting that it would be wise to look at nonviolent second- and third-strikers as candidates. “We are paying ($40,000) to $50,000 a year on average to incarcerate people,” he said. “When they get older, the cost increases dramatically.”
Members of Families to Amend California’s Three-Strikes have talked about getting a measure on the 2012 ballot that would modify the law. But such an effort requires money and it’s not clear where that might come from.
Alan Mobley, an assistant professor of public affairs and criminal justice at San Diego State University, said the U.S. Supreme Court’s ruling, and the attention it has generated, could help. “It provides a good argument for activists to approach funders and say the tide is on our side,” Mobley said.
Still, any measure to repeal or revise the three-strikes law is likely to be met with resistance. “No elected official wants to touch it,” said Paul Pfingst, who was the county’s district attorney from 1994 to 2002 and is now a criminal defense lawyer....
In 2004, California voters rejected an initiative that would have required an offenders’ third strike to be a violent or serious felony and eliminate second-strike sentences for most offenders. Only 47 percent of the state’s voters supported the measure.
May 29, 2011
"Conservatives and criminal justice: With a record of being tough on crime, the political right can afford to start being clever about it"
The title of this post comes from the headline of this interesting recent piece from The Economist. Here are excerpts:
The word commonly used to describe a politician who publicly announces he wants to send fewer criminals to prison is “loser”. But back in February there was David Williams, president of Kentucky’s Senate, speaking in favour of a bill that would do just that. The bill in question would steer non-violent offenders towards drug treatment rather than jail. It is projected to save $422m over the next decade, and will invest about half those savings in improving the state’s treatment, parole and probation programmes. Mr Williams, who believes Kentucky “incarcerates too many people at too great a cost,” praised the bill for recognising “the possibility for forgiveness and redemption and change in someone’s life”. It passed the Republican-controlled Senate 38-0, and on May 17th Mr Williams went on to win the Republican nomination for governor.
Mr Williams and his Republican colleagues join the swelling ranks of conservatives who have taken up the cause of sentencing and prison reform. In February Nathan Deal, Georgia’s Republican governor, announced a bill to create a council to recommend changes in how his state sentences criminals. On May 11th Oklahoma’s Republican governor, Mary Fallin, signed a law expanding alternatives to jail for non-violent offenders. This follows similar measures in South Carolina and Texas, both of them conservative states with Republican governors.
Driving these reforms is a simple factor: cost. Over the past two decades, crime rates have fallen but prison populations have risen. More people have been jailed for more crimes — particularly non-violent drug-related crimes — and kept there longer....
Texas began tackling these problems in the last decade. In 2003 it started mandating probation rather than prison for first-time offenders caught with less than a gram of hard drugs. Two years later it gave the probation board more money to improve supervision and treatment programmes. In 2007, faced with predictions that it would need over 17,000 new prison beds by 2012, requiring $1.13 billion to build and $1.5 billion to operate, Texas allocated $241m to fund treatment programmes. Since 2003 crime of many kinds has declined in Texas. Between 2007 and 2008, Texas’s incarceration rate fell by 4.5%, while nationally the rate rose slightly. Both juvenile crime and the number of juveniles in state institutions have declined.
These reforms saved money. In slowing recidivism, they turned prisoners from tax burdens into taxpaying citizens. And they acknowledged something that tough-on-crime rhetoric has too long ignored: almost everyone in prison will eventually return to society. Better they return as good neighbours and productive citizens.
The fact that the reforms that produced these encouraging figures came from hang-em-high Texas, and not, say, hippie Vermont, has given them political as well as policy credibility..... Just as Richard Nixon could open relations with China without being thought soft on communism, so conservatives can push for sentencing reform without being considered soft on crime.
Some recent and older related posts on the modern politics of sentencing issues:
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- Will Newt Gingrich's statements about a "broken" criminal justice system get attention as he launches a run for President?
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Right on Crime: The Conservative Case for Reform" officially launches
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- Examining the politics of crime and punishment in modern gubernatorial settings
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
Lots more talk about Plata and its consequences a week later
It has now been about week since the Supreme Court's major California prison ruling in Plata (basics here), and there justifiably continues to be a lot of important and interesting post-Plata commentary in the MSM and in new media. This op-ed piece in the Los Angeles Times, headlined "Don't fear the prison decision: California won't have to free dangerous criminals to meet the Supreme Court's mandate," highlights why the ruling is not cataclysmic for California. Here is how the op-ed begins:
In his dissent from the majority in the recent Supreme Court decision requiring California to reduce its prison population by 33,000 inmates, Justice Antonin Scalia warned that "terrible things are sure to happen as a consequence of this outrageous order." But Californians shouldn't panic. The state won't have to throw open the prison doors to meet the court's order if it embraces very modest sentencing reforms.
Prudent ideas for reducing the prison population have been advocated by various task forces, including ones led by former Gov. George Deukmejian, by former Atty. Gen. John Van de Kamp and by a national panel of corrections experts convened by the Legislature. The California Department of Corrections has already submitted a plan to the federal courts detailing how it expects to make the necessary prison population reductions.
Even without the Supreme Court decision, about 250,000 inmates who have served their time will be released from California prisons over the next two years. In addition, since the late 1990s, jails in 22 counties have been releasing nearly 100,000 inmates a year to meet court-ordered caps on the number of people their facilities can accommodate.
Despite all those releases, crime rates are at the lowest levels since Dwight D. Eisenhower was president. Serious crime and arrests have been dropping in California and across the nation for years. While criminologists do not have an easy explanation for the huge crime decline, the evidence points to more effective policing, improved prevention programs for at-risk families and an influx of immigrants, who traditionally have very low crime rates.
Not surprisingly, not every agrees with this sober assessment. The folks at Crime & Consequences, for example, have a more pessimistic assessment of Plata as demonstrated in a pair of recent posts titled "Lies, Damned Lies, and Lazy Falsehoods" and "The Leftist Arsenal: Lying and Smearing." And, for a still different set of perspectives, there are a bunch of Plata posts at California Corrections Crisis and Prison Law Blog worth checking out.
Prior posts on the Plata ruling:
- In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
- Some big-time rhetoric in big-time SCOTUS Plata prison ruling
- Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!
- Early press coverage and reactions to SCOTUS California prison ruling in Plata
- Lots and lots of interesting commentary on SCOTUS Plata prison ruling
- A simple take on Plata: Congress asked for this in the PLRA
- Is California so dysfunctional that doom and gloom is the right reaction to Plata?
"Eventually, science will kill capital punishment"
The title of this post is the headline of this new notable commentary in the Arizona Republic, which discusses the impact advances in neuroscience and genetics could have on modern criminal justice systems. Here are excerpts:
We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene." I'm pretty sure we didn't want to know. We wanted him dead.
Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.
"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.
He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior. "Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."
For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty. "There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.
The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young. "At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."
The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.
"Defense attorneys are using it right now," Marchant said. "But imagine if a kid gets into trouble and you did testing and found some of these conditions existed within his brain. What then?"...
The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.
I am not sure I concur with the notion that advances in neuroscience and genetics will prove always to be mitigating factors rather than aggravating factors. But I am sure that science will always be changing, if not necessarily killing, how we look at serious crimes and serious punishments.