October 22, 2016
Illinois Supreme Court upholds law requiring sex offenders to disclose internet identity information
As reported in this local Illinois article, the "state’s highest court has upheld a law that requires sex offenders to disclose information about their internet identities and websites." Here is more about the ruling:
In a unanimous decision authored by Justice Charles E. Freeman, the Illinois Supreme Court held that a provision of the Sex Offender Registration Act survived First Amendment scrutiny because it bolsters the government’s interest in protecting the public without restricting more speech than necessary.
In an 18-page opinion issued this morning, the court critiqued a handful of federal district courts who have found similar statutes unconstitutional and wrote that although sex offender laws can have “a lasting and painful effect” on those they regulate, those consequences stem from the convictions rather than forced disclosure of their personal information.
The full ruling in Illinois v. Minnis, No. 119563 (Ill. Oct. 20, 2016), is available at this link, and it substantively starts and ends this way:
Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq. (West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings....
We hold that the Internet disclosure provision survives intermediate scrutiny because it advances a substantial governmental interest without chilling more speech than necessary. Therefore, defendant has failed to establish that the Internet disclosure provision of section 3(a) of the Registration Act is facially unconstitutional because it is substantially overbroad in violation of the first amendment.
"Bars to Justice: The Impact of Rape Myths on Women in Prison"
The title of this post is the title of this paper newly posted to SSRN and authored by Hannah Brenner, Kathleen Darcy, Gina Fedock and Sheryl Kubiak. Here is the abstract:
This article stems from a National Science Foundation-funded interdisciplinary research project that addresses a major gap in understanding the reporting of sexual victimization in prison and the confluence of factors that contribute to the ineffectiveness of internal laws and policies. As a basis of this work, our cohort of scholars in law, social work, and psychology utilized data and personal narratives from the groundbreaking class action lawsuit, Neal v. MDOC, brought on behalf of over 800 female inmates against the State of Michigan.
In this article, we identify the most prevalent rape myths we observed from women who were involved in the Neal lawsuit and other similarly situated female inmates across the country. We focus on the impact of rape myths in contexts where prison staff perpetrate sexual violence against female inmates and in particular, how rape myths span the closed prison system-from reporting to grievance outcomes. We explore how these myths shape notions of the "ideal victim," discuss their specific impact, and explain why they matter.
We consider how, by virtue of their incarcerated status, it is impossible for women victimized in prison to meet the "ideal victim" standards, ultimately rendering their attempts at seeking justice futile. We hope that our analysis of rape myths in the prison context will inspire changes in prison law and policy by acknowledging and urging the dismantling of these often unforeseen, implicit, and informal barriers to justice.
UCLA School of Law looking for Executive Director of new Criminal Justice Program
I am intrigued and pleased that a colleague from the UCLA School of Law reached out with a request to post the following description of a notable new position that might be of interest to readers and application directions:
The UCLA School of Law is seeking a highly energetic individual with significant criminal justice policy and/or legal practice experience to be the Executive Director of a newly established Criminal Justice Program (“Program”). The Program will support research on criminal justice issues, expand criminal justice policy engagements both in Los Angeles and nationally (and even internationally), and create new high-level training and pro bono opportunities for students to work in criminal justice. In light of that mission, the Executive Director will have a diverse range of responsibilities and opportunities.
The Executive Director is responsible for a broad range of academic and administrative functions related to criminal justice law activities and programs at UCLA School of Law. The Executive Director will plan and oversee all aspects of the Program in collaboration with the Faculty Director of the Program and other relevant law school administrators. The Executive Director will work closely with the Faculty Director of the Program and members of the criminal law faculty to support and expand research, interdisciplinary study, policy analysis, and teaching (including clinical teaching) about criminal justice at UCLA School of Law. The Executive Director will advance the criminal law curriculum and develop and expand skills and clinical course offerings. The Executive Director will also organize symposia and other academic activities related to criminal justice. The Executive Director will also maintain UCLA’s public profile in these areas through a mix of writings in the popular press and in periodicals read by practicing attorneys, as well as through conference presentations and comparable public events; and raise money to support the Program, for example by submitting grant applications, strengthening existing donor relationships, and exploring new potential donor relationships.
The Program is by design a dynamic one, and the new Executive Director will ultimately have significant discretion to grow the Program and its initiatives creatively. Naturally, the day-to-day work of the Executive Director will feature substantial interaction with UCLA faculty and students. But success in this position will also require meaningful public engagement that can maintain and expand the Program.
Minimum requirements include an excellent academic record; a J.D. or equivalent advanced degree from a U.S. school; and significant criminal justice policy and/or legal practice experience. The salary and level of appointment will be commensurate with qualifications and experience. This is a year-round, academic, non-tenure track position with an expected start date of June 1, 2017.
Confidential review of applications, nominations and expressions of interest will begin immediately and continue until an appointment is made. To ensure full consideration, applications should be received by Friday, November 18, 2016 but will be considered thereafter until the position is filled. Please apply online at https://recruit.apo.ucla.edu/apply/JPF02613 by submitting a cover letter, resume, and the names and addresses of at least three professional references.
The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy see: UC Nondiscrimination & Affirmative Action Policy (http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct).
October 21, 2016
New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives
This new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:
Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).
Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."
Views of the justice system's toughness vary across racial and political party lines. The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%). Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).
A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right." One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%). They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."
Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough." A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%). Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).
Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."
Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.
The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):
The title of this post is the title of this notable new paper by Erin Collins now available via SSRN. Here is its abstract:
This article identifies and analyzes a new type of specialized “problem-solving” court: status courts. Status courts are criminal or quasi-criminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problem-solving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic “problem” to be “solved.” In fact, status courts aim to honor the offender’s experience and strengthen the offender’s association with the characteristic used to sort him or her into court.
The article positions status courts as a troubling development in the evolution of problem-solving justice, in particular, and criminal justice reform, generally. It reveals that status courts institutionalize the notion that certain offenders, by virtue of their inclusion in a particular status group, deserve better treatment than others. This “moral sorting” provides an expressive release that may, counterintuitively, disincentivize widespread systemic reform.
And yet, while status courts present cause for concern, they also advance a positive, and possibly transformative, notion: that some individuals commit criminal offenses, at least in part, because of the influence of external factors beyond their control. In this way, status courts challenge the retributive notion that criminal offenders are wholly independent, rational actors and counterbalance the othering effect of many current criminal justice practices. As the rise of retributive ideals played a prominent role in ramping up the penal machinery over the past few decades, embracing the more contextual, complicated conceptualization of the criminal offender status courts advance can temper the tendency to overincarcerate.
October 20, 2016
BJS reports encouraging crime reductions based on its National Crime Victimization Survey
Some more interesting and important (and perhaps confusing) official crime data was reported earlier today via this notable new report from DOJ's Bureau of Justice Statistics excitingly titled "Criminal Victimization, 2015." Though the title of the report is not so thrilling, the data contained therein is largely a cause for celebration. This first page of overview/highlights explains why (with my emphasis added):
In 2015, U.S. residents age 12 or older experienced an estimated 5.0 million violent victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS). There was no statistically significant change in the rate of overall violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2014 (20.1 victimizations per 1,000 persons age 12 and older) to 2015 (18.6 per 1,000) (figure 1). However, the rate of violent crime in 2015 was lower than in 2013 (23.2 per 1,000). From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1,000 persons age 12 or older.
The rates of violent and property crime largely followed similar trends over time. Households in the U.S. experienced an estimated 14.6 million property victimizations in 2015. The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 victimizations per 1,000 in 2015. A decline in theft accounted for most of the decrease in property crime.
No statistically significant change occurred in the rate of violent crime from 2014 (20.1 victimizations per 1,000) to 2015 (18.6 per 1,000).
No statistically significant change was detected in the percentage of violent crime reported to police from 2014 (46%) to 2015 (47%).
No measureable change was detected in the percentage of violent crime victimizations in which victim services were received from 2014 (10.5%) to 2015 (9.1%).
The rate of property crime decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 per 1,000 in 2015.
In 2015, 0.98% of all persons age 12 or older (2.7 million persons) experienced at least one violent victimization.
The prevalence rate of violent victimization declined from 1.11% of all persons age 12 or older in 2014 to 0.98% in 2015.
In 2015, 7.60% of all households (10 million households) experienced one or more property victimizations.
The prevalence rate of property victimization declined from 7.99% of all households in 2014 to 7.60% in 2015.
In other words, in 2015 according to this distinctive victim-based accounting of crime in the United States (which, critically, excludes any homicide measures), crime remained steady at modern record-low levels or even declined a bit across most types of crime.
Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter
The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:
In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.
Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.
Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....
In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.
The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”
In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.
The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”
For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”
McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...
McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.
October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)
"The United States needs a defender general"
The title of this post is the headline of this interesting new commentary authored by Andrea Lyon, who is the dean at Valparaiso University Law School. She joined the school in July 2014. Here are excerpts:
At a time when nearly every political constituency agrees that we have over-incarcerated and over-criminalized our country, one question arises: Why did non-partisan recognition of this issue take so long? It’s no secret that we incarcerate a higher number of people per capita than any other first-world nation....
There has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the Assistance of Counsel for his defence.” Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does....
All over the United States indigent defense is in crisis. There are too many cases and insufficient resources to properly staff offices and prepare cases. Too often, the result is that we find out, sometimes decades after the fact, the wrong person was in prison, or perhaps executed. A defender general would know how the defense would be impacted by laws in ways that the prosecution and judiciary don’t anticipate. There could be real input for legislatures about the likely consequences of passing certain statutes, and to help prevent expensive and ineffectual decisions....
We have seen Secretary Hillary Clinton decry over-criminalization and mass incarceration and acknowledge her husband’s part in it. Had President Clinton been presented with a defender general’s analysis, he might have chosen a different path.
How would this work? As far as I know there is no similar office internationally. Israel has a chief public defender for the entire country, and that job is to run the defense attorney function for the indigent in that country. Vermont’s public defender system is called by that name. Some other states, such as Kentucky and Wisconsin, have statewide indigent defense systems. There is certainly recognition of the importance of representation of the accused in many countries, including our own.
What is not clear, though, is a national recognition of the need for a defense policy voice that is regularly included in the conversations that Congress and the executive branch have about these issues. Both branches can and do turn to the attorney general for her input on statutory and other concerns. The solicitor general also serves as an ongoing resource, but there isn’t an office that can represent the concerns of the defense, their families and their communities. Defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.
This defender general’s office should be created immediately. It should be appropriately staffed and liaisons created with each of the states and territories. The defender general should command the same respect and stature that the offices of the attorney general and solicitor general command, and the defender general would ensure that all of those interested in criminal justice have a seat at the table.
Georgia completes its seventh execution of 2016, bringing national execution total for year to 17
While many traditionally active death penalty states, such as Ohio and Oklahoma, have had their machineries of death inoperative in 2016 because of problems with lethal injection drugs or protocols, Georgia has had a record-setting peach of a year when it comes to carrying out executions. This CBS/AP story reports on the latest Peach State execution and provides a little numerical and historical context for it:
A man convicted of killing an Atlanta police officer and wounding a second officer with an AR-15 rifle was executed late Wednesday, becoming the seventh inmate put to death in Georgia this year. Gregory Paul Lawler, 63, was pronounced dead at 11:49 p.m. at the state prison in Jackson after he was injected with the barbiturate pentobarbital. He was convicted of murder in the October 1997 slaying of Officer John Sowa and of critically wounding Officer Patricia Cocciolone.
The Georgia Supreme Court said in a statement Wednesday it had unanimously denied defense requests to halt the execution, originally set for 7 p.m. Defense attorneys later appealed to the U.S. Supreme Court, which also declined to stop the execution late Wednesday night.
Lawler didn’t make a final statement and refused an offer of a prayer. Then he lay on the gurney with his eyes closed as the lethal drug flowed, taking several deep breaths and yawning before becoming still. Cocciolone arrived in a wheelchair and sat in the front row of the witness area, as did Fulton County District Attorney Paul Howard, whose office prosecuted Lawler.
The seven executions in Georgia this year are the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976. Georgia executed five inmates last year and five in 1987.
Georgia is one of five states that have carried out executions this year for a total of 17 nationwide. Texas has executed seven inmates, while Alabama, Florida and Missouri have executed one apiece.
GOP Gov explains how sentencing reform has "Georgia's criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety"
This Washington Times commentary, headlined "Georgia’s story of redemption: Criminal justice reform is saving lives and preserving families, is authored by Georgia's Republican Governor Nathan Deal. Here are excerpts:
When I took office in January 2011, Georgia was in the midst of a criminal justice system crisis. The state’s prison population and incarceration budget had doubled in the previous two decades and taxpayers were spending $1 billion per year to keep tens of thousands of inmates behind bars. The recidivism rate hovered at 30 percent for adults and 65 percent for juveniles, indicating that efforts to rehabilitate offenders were not working as they should have been.
To address this crisis, I established a task force to examine reform initiatives that eventually led to the creation of accountability courts, improvements to the juvenile justice system and expanded efforts to facilitate a smoother re-entry process for returning citizens. The Georgia General Assembly used these recommendations to enact two rounds of reforms in 2012 and 2013 that have made Georgia’s criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety. These reforms were approved with overwhelming bipartisan consensus in the Georgia General Assembly.
Since then, Georgia has seen a decrease of about 10.3 percent in the state’s prison inmate population, from roughly 60,000 to about 53,800. Before reform initiatives had been enacted, Georgia’s inmate population was projected to grow by 8 percent in the ensuing five years, presenting taxpayers with an additional $264 million bill in that time frame. Not only did we shred that price tag, but we were also able to forgo the construction of two additional prisons as a result of effective reforms.
The cost to incarcerate one adult offender is about $18,000 per year, which is far more expensive than an addiction rehabilitation program or mental health counseling — so it makes fiscal sense to seek alternatives to prison for nonviolent offenders whenever feasible. Without the sentencing alternatives of the state’s 105 accountability courts, which give offenders a second chance and an opportunity to reverse the cycle of failure, thousands of nonviolent offenders with underlying addiction and mental health issues would likely be in prison. Beyond fiscal considerations, criminal justice reform is essential to providing the successful rehabilitation to prevent former offenders from becoming repeat offenders. Perhaps most important of all, these reforms have the long-term potential to positively change the dynamics of families, as crime is often generational....
Georgia’s criminal justice reforms have saved hundreds of millions of taxpayer dollars and will continue to do so. At the same time, we have saved lives and preserved families, and that’s what is important.
October 19, 2016
Is Florida really going to conduct full post-Hurst resentencings for hundreds of condemned murderers?
The question in the title of this post is prompted by this local article headlined "Death penalty ruling could mean new sentencing for 386 murderers in Florida." Here are excerpts:
The Florida Supreme Court’s decision last week to require unanimous jury votes for executions has thrown the state’s death penalty into disarray. In a Friday ruling in Hurst vs. Florida, the justices eliminated part of Florida’s death sentencing laws, but lawyers and legislators disagree about what comes next.
Some say that it could lead to sentences being thrown out for nearly 400 convicted murderers awaiting execution at Florida State Prison, and that it may cripple the state’s death penalty long term. Others say the only thing that has changed is that a jury must now vote unanimously in favor of the death penalty. What’s clear is this: Even with the case decided, Florida’s legal fights over capital punishment are far from over.
Death-row defense lawyers say the Hurst decision leaves Florida without a functioning death penalty until the state Legislature can convene and rewrite the law. “This is so big,” said Martin McClain, a Broward County lawyer who represents death-row inmates appealing their sentences. “I don’t know of a way to overstate the significance.”
But legislative leaders say that such action won’t be necessary. “With Friday’s ruling, imposing the death sentence will require a unanimous verdict with or without legislative action,” said Katie Betta, a spokeswoman for Senate President-designate Joe Negron, R-Stuart. “In the past, the Senate has been supportive of the unanimous verdict requirement.”
Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys, agrees that no legislative action is necessary. “The death penalty is certainly still legal in Florida,” he said. “The procedure is what the Supreme Court reacted to.”
The court’s ruling has raised other questions about how the state should handle the 386 inmates on death row under old sentencing rules that have since been thrown out. The Supreme Court has not indicated which inmates could be eligible to have their sentences changed. Even the most experienced death-row defense lawyers don’t know what to expect. McClain said he thinks the court will issue a ruling about which cases are going to be treated like that. “Until we have that sort of broad picture,” McClain said, “we’re kind of stuck waiting.”
Some death-row inmates — including Timothy Lee Hurst, convicted of killing a co-worker in Pensacola in 1998 — will have new sentencing hearings. The court will bring in a new jury to hear evidence and decide whether Hurst should be executed or sentenced to life in prison. But not all death penalty cases are the same. So it’s possible the court could decide that certain kinds of cases are eligible for a re-sentencing and others are not.
For example, the court could throw out sentences from time periods when the death penalty laws were overturned as unconstitutional, or they could only allow a new jury for death-row inmates who raised certain complaints in their appeals. But Maria DeLiberato, a defense lawyer with the Capital Collateral Regional Counsel in Tampa, warns that could be seen as an “arbitrary and capricious” enforcement of the law and raise new allegations that Florida’s death sentences flout the U.S. Constitution’s ban on cruel and unusual punishment.
She’s hopeful that the court would allow all inmates a new sentencing hearing, not just some of them. The state attorneys worry about the high costs of a small wave of re-sentencing hearings, let alone 386 cases. “We do not have the manpower to do that,” said Jacobs. “We’d have to get assistance to do that from the Legislature.”
Terrific Marshall Project review of notable (but lower-profile) criminal justice initiatives going to voters in various states
The always great work done by the folks at The Marshall Project continues be especially helpful for election-season coverage through its "Crime On The Ballot" series which keeps tabs on the "ballot measures and races — beyond Washington — that could shape criminal justice." And this week brought this new piece on state ballot initiatives headlined "It’s Not Just Pot and the Death Penalty: Four important ballot measures you probably haven’t heard of." I recommend the extended piece in full, and here are excerpts:
High-profile state ballot measures on contentious issues like the death penalty, guns and pot are closely watched as indicators of the national mood. But this election season also brings less-noticed proposals that may have more far-reaching effects. Here are four ballot measures in six states that could serve as laboratories for other states.
Shortening Time Served for Nonviolent Felonies: California
California has a long history of putting criminal justice policy on the ballot: the state’s infamous “Three Strikes” law was strengthened by a ballot initiative in 1994; then, with voters’ appetite for mass incarceration on the wane, the law was partially repealed by another initiative in 2012. In 2014, voters downgraded several major felonies to misdemeanors — most notably, possession of heroin and other illegal drugs. Now, with the state under a federal mandate to reduce its prison population, Californians will consider a constitutional amendment to make certain prisoners eligible for earlier release.
Under the current law, sentences for many felonies can be “enhanced” with additional prison time if the person committing the crime is classified as a gang member, for example, or has other felony convictions on his record. Under the state’s “determinate sentencing” provision, prisoners must serve their entire term, enhancements and all. Proposition 57 would undo that requirement for those whose crimes are classified as “nonviolent,” making prisoners eligible for parole after they’ve served the full term for their primary crime. The proposition also creates a system of early-release credits that inmates can earn by participating in education and rehabilitation programs....
Bail Reform: New Mexico
When someone is accused of a crime in New Mexico, the law requires he or she be sent home under “the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.” In other words, jail should be a last resort, reserved for the most dangerous defendants or those most likely to flee. But that’s rarely what happens, says Charles Daniels, Chief Justice of the state’s Supreme Court. “Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail. Our judges have just gotten so used to putting a price tag on your presumption of innocence,” he says.
Research from around the country shows that tens of thousands of people are routinely held in jail for low-level offenses because they don’t have small sums of money to make bail. Daniels has spearheaded an effort to overhaul the state’s bail system; a ballot measure this November would amend the state constitution to include a rule that no one should be held in jail solely because they can’t afford bail — and would make it harder for defendants to get out if they are dangerous. In almost every state, people accused of crimes have a “right to bail”: Regardless of how dangerous the defendant, or how serious a flight risk, a judge can’t hold anyone outright. Instead, judges who want a defendant held set a too-high bail amount that they hope the defendant can’t afford. “It’s a shell game,” says Daniels. The ballot measure would remove “right to bail”, and the constitution would be amended to say judges can deny bail if, after a hearing, they feel someone is too dangerous to be released....
Writing Victims' Rights Into the Constitution: North Dakota, South Dakota, and Montana
Three states this November will vote on an almost identical ballot measure that would create sweeping new protections for crime victims. Called “Marsy’s Law,” “this is an equal rights campaign to strengthen victims’ rights so they’re equal to rights that criminal offenders have,” according to Jason Glodt, a former prosecutor managing the campaign in South Dakota. Marsy’s Law is named for Marsalee Nicholas, who was killed by her boyfriend in 1983. A week after her murder, her mother “walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail,” according to the Marsy’s Law website.
The amendments would require that victims be notified at every major step of the criminal justice process, one of more than a dozen new rights, including the right to withhold records, the right to refuse to be deposed or interviewed, and the right to speak at hearings. The amendments would also broaden the definition of “victim”; in some states, like North Dakota, current victim protection laws are only triggered in the case of a serious crime like assault or murder. Under Marsy’s Law, “victim” would include those who had their purses snatched — and their “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship."...
De-Felonizing Drug Possession: Oklahoma
By its own count, Oklahoma has the second-highest incarceration rate in the country (after Louisiana), and the highest rate of incarcerated women. Seventy-five percent of those behind bars are there for nonviolent offenses — most commonly, drug offenses. Two ballot measures poised to pass this November aim to change that. The first, SQ 780, would downgrade simple drug possession from a felony to a misdemeanor, and raise the “felony theft threshold” —the dollar value of a stolen item that triggers felony rather than misdemeanor charges — from $500 to $1000. A corresponding measure, SQ 781, directs cost savings generated by SQ 780 into a special fund that would pay for mental health and substance abuse services. The measures are backed by a coalition of both right- and left-leaning organizations, including the ACLU and the Family Policy Institute of Oklahoma.Local sheriffs and prosecutors warn that without the threat of felony charges, prosecutors lose the leverage they need to compel people to participate in drug court, accept plea deals, or to testify in other cases. Sheriffs fear that all these new misdemeanor arrests will simply shift overcrowding in prisons to the jails.
The measures come at a time when Oklahoma has been contemplating criminal justice reform (spurred, in part, by a budget crunch caused by falling oil prices). In April, Gov. Mary Fallin signed a package of bills aimed at shrinking the prison population, including one that reduces mandatory minimums for drug possession and one that broadens the use of drug courts and community sentencing. The state is also undergoing a Justice Reinvestment process; a task force researching the drivers of the state’s incarceration rate will submit an additional series of recommended bills next year. The success of those bills is staked, to a certain extent, on these ballot initiatives.
October 18, 2016
Oregon Gov pledges to continue moratoriaum on executions if elected to a new term
As reported in this local article from Oregon, headlined "Brown to maintain death penalty moratorium," the chief executive in the Beaver State is promising not to execute those laws calling for excutions of condemned murderers. Here are the details:
The governor plans to continue a state moratorium on capital punishment that would extend through her upcoming term if elected, a spokesman said Monday morning. "Gov. Kate Brown has made clear her personal opposition to the death penalty and her support of the current moratorium on Oregon executions," spokesman Bryan Hockaday told The Oregonian/OregonLive.
Former Gov. John Kitzaber announced the moratorium two weeks before the scheduled 2011 execution of Gary Haugen, who then sought to speed his execution after waiving all appeals. After Brown took over the state's top office in February 2015, she said she would continue the stoppage of public executions until further study.
"Gov. Brown directed her General Counsel to conduct a review of the policy and practical implications of Oregon's capital punishment law," Hockaday said. "Though no executions are imminent, Gov. Brown will continue the death penalty moratorium, because after thoroughly researching the issues, serious concerns remain about the constitutionality and workability of Oregon's capital punishment law." Hockaday declined to immediately release, pending a records request, any study or records related to how the governor made her decision.
Reasons for her decision include the "uncertainty of Oregon's ability to acquire the necessary execution drugs required by statute," Hockaday said by email. "Looking nationally, America is on the verge of a sea change both by legislation and, more profoundly, through court decisions. The past few years have already seen a major shift in the landscape on capital punishment law, and Gov. Brown expects more changes are on the horizon."
Oregon voters approved the death penalty in 1984, and the state and U.S. Supreme Courts have repeatedly upheld its legality. Oregon's death row has 34 prisoners, all of whom stay in their cells 23 hours a day. In the past five decades, the state executed two men -- both in the 1990s. Those men had essentially volunteered for the death penalty after waiving their rights to appeal before their deaths.
Clatsop County District Attorney Josh Marquis, an outspoken supporter of the death penalty in Oregon, a month ago met with Brown counsel Ben Souede about the issue. After hearing the news Monday, Marquis said he was seething. "If she really believes the death penalty is so wrong, then she should have the guts to commute all those sentences," Marquis said.
If she were to take that extraordinary step, Marquis said about six or seven prisoners on death row could be released to the public within a year because they would qualify for an immediate parole hearing. He said those prisoners were sentenced after voters approved the death penalty and before the state adopted life sentences without parole in the early 1990s.
No executions may be imminent, Marquis argued, but at least three cases are pending in Oregon where defendants face aggravated murder charges, which bring a death penalty sentencing option if convicted. Brown's announcement could make it easier for defense attorneys to persuade jurors not to impose the death penalty, he said.
"Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida"
The title of this post is the title of this short essay by Paolo Annino now available via SSRN. Here is the abstract:
This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing. This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.
October 18, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)
Highlighting how death is different when it comes to SCOTUS dissents from denial of certiorari
Adam Feldman has this notable new post at the Empirical SCOTUS blog titled "Dissents from Denial of Cert (2010-2015)." The whole post is an interesting read for SCOTUS aficionados, but these concluding passages struck me as especially noteworthy (though not all that unsurprising) for sentencing fans:
Justices Thomas and Sotomayor are also the only Justices that have at least one dissent from denial for each Term in this set. Additionally, Justices Thomas, Alito, and Breyer all have clear upswings in their charts. Is this due to frustration with the rest of the Justices’ choice of case selection? Is it to put certain cert denials in the spotlight?
Some additional clarity is shed by examining the issues at the heart of the denied petitions. Five of Justice Breyer’s six authored dissents from denial for this period and all four from 2015 came in death penalty cases. A majority of Justice Sotomayor’s dissents come from death penalty cases as well and all stemmed from criminal matters. As the Court dealt with several capital cases in 2015 and has several more on the 2016, perhaps these Justices that routinely vote against the death penalty seek greater reform on this issue, are attempting to spotlight specific cases they feel were unjustly decided by the lower courts, or are conveying alternative ways for lawyers to frame these such issues in their arguments.
Justices Alito and Thomas’ dissents are from cases composed of a more varied set of issues ranging from First Amendment and discrimination concerns to criminal matters in the form of habeas corpus relief. Absent from their dissents are any capital cases. While it is difficult to read too much into this lack of a clear pattern, these Justices’ general trends towards more such dissents is notable. The next Justice confirmed to the Court and the effect that this Justice has on the Court’s choice of cases will inevitably have a deep and prolonged impact on this form of behavior from all Justices, as the new ninth Justice will have a large say in what cases the Court hears as well as in the Court’s merits decisions.
October 17, 2016
Federal judge troubled by how Philadelphia DA is dealing with post-Miller resentencing
This interesting local article, headlined "Federal judge blasts Philly DA's 'juvenile lifers' policy," highlights the continued struggle in some quarters to give meaningful effect to the Supreme Court's Eighth Amendment ruling in Miller v. Alabama more than four years later. Here are excerpts:
The Philadelphia District Attorney's office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years the office has been offering in such cases.
The possibility was raised Monday as the office agreed to move ahead with resentencing for Kempis Songster, 44, serving life without parole for a murder he committed in 1987 at age 15. An openly frustrated U.S. District Judge Timothy J. Savage — who had ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline — said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that had put back into play about 300 murder cases in Philadelphia involving juveniles.
Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.
"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday. "If you're saying you have all these offers out, it seems you're treating all of these folks the same way — 35 years to life. I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually. I understand you want to do this for policy reasons. Maybe because it looks good."
Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.
Affronti, accompanied by Tariq el-Shabazz, one of District Attorney Seth Williams' top deputies, agreed to drop the appeal of Savage's order directing Songster to be resentenced as well as its request for a stay of the 120-day time frame. Savage's earlier ruling had questioned the district attorney's reliance on parole as the means of release by leaving maximum life sentences in place....
Bradley Bridge of the Defender Association of Philadelphia, who is handling many of the "juvenile lifer" cases, said the district attorney's dropping of its appeal was significant because it left Savage's opinion in place. "His vision of what is a lawful sentence is substantially different than the prosecutor's view of what is a lawful sentence," Bridge said. "The prosecutor has now conceded that Judge Savage wins. They're not challenging him on it."
Up until now, Williams has offered about 60 defendants plea agreements of 35 years to life, which, Savage previously noted, in effect passes the decision on release over to the parole board, which has approved the release of a handful of defendants in the oldest of the cases. Williams' office has argued that allowing parole in these cases was an acceptable way to comply with the Supreme Court ruling. Savage wrote in an earlier ruling, however, that a sentence with a maximum of less than life had to be considered by the resentencing judge. The life maximum should be ordered only in rare cases, but was allowable, he said.
Affronti acknowledged that the office had not been willing to offer a negotiated new sentence of less than 35 years to life for those were were 15 to 17 at the time of their crime, which is the current sentence set by Pennsylvania for first-degree murder involving a juvenile defendant 15 and older, set after the Supreme Court invalidated sentences of life without parole. Pennsylvania law also now allows for a more lenient sentence of 25 to life for juveniles who were younger than 15 at the time of the crime.
Affronti said the D.A.'s office would continue to use the new Pennsylvania law as a guideline for offers to the lifers, even though it does not legally apply retroactively, because "I believe a 15-year-old that commits first-degree murder in 1974 should be treated the same as a 15-year-old in 2016." The state Supreme Court ruled, however, that that new penalty could not be applied retroactively - a ruling sought by the commonwealth to avoid reopening these cases at all, prior to the U.S. Supreme Court retroactive ruling.
"How the Sentencing Commission Does and Does Not Matter in Beckles v. United States"
The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Luke Beasley. Here is the abstract:
This Essay considers how significant the differences between the Armed Career Criminal Act and the Sentencing Guidelines are to one question the Supreme Court is poised to address in Beckles v. United States -- namely, whether a rule invalidating the so-called "residual clause" in the Sentencing Guidelines applies retroactively to cases on collateral review. This Essay collects evidence from resentencings that have occurred after courts have found the Guidelines' residual clause invalid. These resentencings have resulted in defendants receiving significantly less prison time.
The extent to which a rule invalidating the Guidelines' residual clause affects defendants' sentences -- often significantly -- justifies revisiting defendants' sentences because whatever finality interests exist in the defendants' sentences are outweighed by the effects that a rule invalidating the Guidelines' residual clause has on the amount of prison time defendants serve. The Supreme Court should also not hesitate to make a rule invalidating the Guideline retroactive because the Sentencing Commission decided not to make retroactive an amendment deleting the Guideline's residual clause. The Commission never investigated how difficult it would be to make that amendment retroactive.
A few of many related prior posts and related materials:
- SCOTUS grants cert on Johnson application to career offender guidelines
- Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
- "What Lurks Below Beckles"
- Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
- "Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."
- Topical archive of many related posts: Vagueness in Johnson and thereafter
Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg
There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg. The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:
Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death. His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior. A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime. As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps. The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.
The Constitution demands more. The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976). It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution. His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.
This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....
All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10). But not all defendants who commit horrific crimes are sentenced to death. Some are spared by juries. The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death. Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy. I respectfully dissent from the denial of certiorari.
UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial. Here is how that post gets started and ends:
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore. Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial. If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief? That court has certainly had no difficulty ruling in favor of murderers in past capital cases. It is one of the country's more criminal-friendly forums. If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?
There is, of course, more to the story. After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....
Defending people who have committed horrible crimes is not easy. Frequently tough choices must be made. If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.
October 17, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)
Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS
A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone). Here are excerpts:
This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.
The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.
It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.
The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.
We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).
Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....
But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.
Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.
It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.
But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.
COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.
Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.
Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.
Some (of many) prior related posts on use of risk-assessment technologies:
- Parole precogs: computerized risk assessments impacting state parole decision-making
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
- Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
- ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
October 17, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (0)
October 16, 2016
New Equal Justice Initiative animated video explores explores America’s lynching history
Via email I received recently a promotion of a notable new video produced by the Equal Justice Initiative titled "Lynching in America: Confronting the Legacy of Racial Terror." Here is a description of the video and embedded below is five minutes of fascinating content and animation thanks to EJI:
The video portrays the violent aftermath of the Civil War, when racial terror and lynching were used to create racial hierarchy, disenfranchisement, and oppression against African Americans despite emancipation.
Narrated by widely acclaimed public interest lawyer Bryan Stevenson, the five-minute video illustrates the widespread violence and racial terror created by lynching and mass atrocities perpetrated against African Americans, frequently with support from government officials. The threat of lynching forced millions of black people to flee the American South to the urban North and West as refugees from violent racism during the first half of the 20th century.
EJI has documented over 4000 racial terror lynchings of black men, women, and children, who were hanged, burned alive,shot, drowned, and beaten to death by white mobs between 1877 and 1950. Until EJI announced its plans earlier this year to build a national memorial commemorating the thousands of African American lynching victims during this era, very little public recognition of this period of racial terror was in evidence despite the presence of thousands of Confederate plaques, statues, and monuments across the American South.
“Our nation’s history of racial injustice casts a shadow across the American landscape. This shadow cannot be lifted until we shine the light of truth on the destructive violence that shaped our nation, traumatized people of color, and compromised our commitment to the rule oflaw and to equal justice,” Bryan Stevenson, Executive Director of EJI, said. “We all must engage this history more honestly.” Lynching in America: Confronting the Legacy of Racial Terror is part of EJI’s Race and Poverty project, which explores racial history and uses innovative teaching tools to deepen our understanding of the legacy of racial injustice. By telling the truth about our past, EJI believes we can create a different, healthier discourse that will lead to different choices and practicesthat can address America’s history of racial inequality.