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January 6, 2018

Some notable recent empirical research on crime

I recently tripped across some recent empirical crime research that seemed worth noting:

From the Journal of Public Economics, "The effect of Medicaid expansion on crime reduction: Evidence from HIFA-waiver expansions," authored by Hefei Wen, Jason Hockenberry and Janet Cummings:

Abstract:  Substance use figures prominently in criminal behavior. As such expanding public insurance and improving access to substance use disorder (SUD) treatment can potentially reduce substance use and reduce crime.  We examine the crime-reduction effect of Medicaid expansions through the Health Insurance Flexibility and Accountability (HIFA) waivers.  We find that HIFA-waiver expansion led to a sizeable reduction in the rates of robbery, aggravated assault and larceny theft. We also show that much of the crime-reduction effect likely occurred through increasing SUD treatment rate and reducing substance use prevalence.  The implied benefit-cost ratio estimate of increased treatment on reducing crime ranges from 1.8 to 3.2.

From the American Journal of Public Health, "Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States," authored by Michael Siegel, Ziming Xuan, Craig Ross, Sandro Galea, Bindu Kalesan, Eric Fleegler and Kristin Goss:

Abstract

Objectives.  To examine the relation of “shall-issue” laws, in which permits must be issued if requisite criteria are met; “may-issue” laws, which give law enforcement officials wide discretion over whether to issue concealed firearm carry permits or not; and homicide rates.

Methods.  We compared homicide rates in shall-issue and may-issue states and total, firearm, nonfirearm, handgun, and long-gun homicide rates in all 50 states during the 25-year period of 1991 to 2015.  We included year and state fixed effects and numerous state-level factors in the analysis.

Results.  Shall-issue laws were significantly associated with 6.5% higher total homicide rates, 8.6% higher firearm homicide rates, and 10.6% higher handgun homicide rates, but were not significantly associated with long-gun or nonfirearm homicide.

Conclusions.  Shall-issue laws are associated with significantly higher rates of total, firearm-related, and handgun-related homicide.

January 6, 2018 in National and State Crime Data | Permalink | Comments (1)

January 5, 2018

"Prosecutors and Democracy: A Cross-National Study"

9781316638149The title of this post is the title of this recently published book by Máximo Langer and David Sklansky. Here is how the publisher describes the book's contents:

Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government.  Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics.  The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe.  Contrasting those strategies allows an assessment of their relative strengths -- and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.

January 5, 2018 in Recommended reading, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

In prelude to federal prosecution, killer of Kate Steinle gets three-year sentence on sole state count of conviction

As reported in this local article, "the Mexican national accused of shooting Pleasanton native Kate Steinle was sentenced today to three years in prison but will not serve any more time in state custody because of credit for time served." Here is more:

Jose Ines Garcia Zarate, 54, will now be handed over to federal authorities to be prosecuted again.

After a four-week trial that drew national attention, a jury in November acquitted the undocumented immigrant of murder, involuntary manslaughter and assault with a semiautomatic firearm in the July 2015 shooting of Steinle on San Francisco’s Pier 14. But jurors convicted him of being a felon in possession of a firearm.

Judge Samuel Feng this morning sentenced Garcia Zarate, who has already spent two and a half years in jail waiting for his trial, to time served on his possession conviction.

Garcia Zarate’s defense team urged Feng to throw it out, arguing that the jury received improper instructions about the charge. But Feng denied the motion this morning at San Francisco’s Hall of Justice....

In the coming days, Garcia Zarate will be arraigned in federal court, where he faces similar charges of being a convicted felon and an illegal immigrant in possession of a firearm.

His defense attorneys have argued that the shooting was an accident, suggesting that Garcia Zarate found the gun on the pier and that it accidentally discharged when he touched it, with the bullet ricocheting 78 feet before hitting 32-year-old Steinle. Garcia Zarate threw the gun into the water after it fired.

Prior related post:

January 5, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

"What to Know About the Death Penalty in 2018"

The title of this post is the headline of this recent Marshall Project piece that astutely previews what the year ahead might hold in the arena of capital punishment.  Here is how the piece starts and its preview themes:

Only a little more than a year ago, many opponents of the death penalty were cautiously optimistic that the U.S. Supreme Court — perhaps with a Clinton appointee or two — might strike down the punishment for good. Then came President Donald Trump, who tweeted “SHOULD GET DEATH PENALTY!” about one criminal suspect and recently called for the execution of anyone who kills a police officer. He picked an attorney general, Jeff Sessions, known for his efforts to pursue executions in Alabama, and a Supreme Court justice, Neil Gorsuch, whose first major decision was to deny a prisoner’s request for a stay of execution.

But does all that matter? The number of executions and new death sentences have been trending downward for years. Support for capital punishment in the U.S. is at about 55 percent, its lowest point in more than four decades. Trump’s first year saw a slight rise in death sentences and executions, but those are the product of counties and states; the president and attorney general have little say beyond the occasional federal case. What can we expect at the beginning of 2018? Is the death penalty almost gone, or will the president’s support rejuvenate it?

To answer those questions, there will be four places to watch:

The Counties

It’s up to local, elected district attorneys to decide whether to ask a jury for the death penalty. In the 1990s, many prosecutors campaigned on their successes sending men to death row. But much has changed....

The States

It takes a DA and a jury to send someone to death row, but it takes a massive state bureaucracy to kill him. Courts must uphold the convictions, prison officials must secure lethal injection drugs, and governors and attorneys general must clear political and legal obstacles....

The Supreme Court

Trump could leave a massive legacy at the Supreme Court, especially if Justice Anthony Kennedy follows through on his plan to retire....

The U.S. Attorney General

The federal government has successfully sought capital punishment 76 times since 1988. It will become clear in 2018 whether Sessions will try to impose capital punishment in some current cases.

January 5, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

January 4, 2018

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

Confirming morning reports, today Attorney General Jeff Sessions issued this new one-page memo to all US Attorneys on the topic of "Marijuana Enforcement." The memo rescinds the Cole and Ogden and related Obama-era enforcement memos (calling them "unnecessary"), and does so without announcing any formal or even informal new policy while saying DOJ's well-established general policies and principles for all federal prosecutions should govern.

Notably, this press release issued with the new Sessions marijuana memo provides some of thematic justifications for his decision:

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents....

In the memorandum, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," said Attorney General Jeff Sessions. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

Interestingly, this new AP article from Colorado, headlined "U.S. Attorney for Colorado: Status quo on marijuana enforcement," suggests local control could mean little or no change in some regions:

The U.S. Attorney for the District of Colorado said Thursday there will be no immediate changes in marijuana enforcement after Attorney General Jeff Sessions rescinded a policy that paved the way for legalized pot to flourish in states across the country.

“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions,” U.S. Attorney Bob Troyer said.

“The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.

“We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

It will be interesting to see whether a host of other US Attorneys will explain, in general or in detail, how they play to operationalize the "trust and local control" that AG Sessions says he has now given them.

Related posts from here and MLP&R:

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

US Sentencing Commission announces public meeting to vote on proposed guideline amendments

As detailed in this announcement, the US Sentencing Commission has scheduled "a public meeting ... for Friday, January 19, 2018, at 10:30 a.m." The announced agenda includes "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

As detailed in this prior post from mid 2017, the Commission did not to promulgate guideline amendments in the 2016-17 amendment cycle, but did articulate an ambitious set of proposed priorities for 2017-18 amendment cycle (and also release a set of proposed holdover amendments for comment).  So there certainly could be some significant federal sentencing guidelies news emerging from the Commission in a couple of weeks.  Stay tuned.

January 4, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

"The New Reformer DAs"

The title of this post is the title of this lengthy new American Prospect article.  The piece's lengthy subheadline highlights its themes: "As cities grow more progressive, a new breed of prosecutors are winning office and upending the era of lock-’em-up justice. They may hold the key to resisting Trump’s mania for mass incarceration." And here is an excerpt:

District attorneys “are in many ways the most important figures in the system,” says David Alan Sklansky, a Stanford law professor who studies DAs. “They are crucial gatekeepers between the police and the courts. They get to decide who gets charged and what they get charged with. They are the ones who recommend sentencing and negotiate plea agreements.  And since the vast majority of criminal convictions in this country are the result of plea agreements, they are the ones who are negotiating sentences.”

While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors — who have a tremendous amount of power and discretion within the system — have played.

John Pfaff, a Fordham law professor and author of the provocative book Locked In, argues that the role low-level drug charges have played in the rise in mass incarceration is overblown. The main drivers, he contends, are the prosecutors in the country’s DA offices. By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.

For decades, district attorney politics (almost all counties elect their chief prosecutors) have been relatively conservative affairs, animated by white suburban voters who want assurances of law and order — not by the people of color living in the city and on the receiving end of tough-on-crime policies.  Of the more than 2,400 elected prosecutors in the United States, 95 percent are white, according to the Reflective Democracy Campaign.  In 14 states, all elected prosecutors are white.  Just 1 percent of prosecutors are women of color.

January 4, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

How will local US Attorney's likely respond to new marijuana enforcement guidance coming from AG Jeff Sessions?

The question in the title of this post is prompted by this morning's big federal criminal justice news reported here by AP (and also covered here at Marijuana Law, Policy & Reform):

Attorney General Jeff Sessions is rescinding the Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, two people with knowledge of the decision told The Associated Press.  Sessions will instead let federal prosecutors where pot is legal decide how aggressively to enforce federal marijuana law, the people said. The people familiar with the plan spoke on condition of anonymity because they were not authorized to discuss it before an announcement expected Thursday....

The move by President Donald Trump’s attorney general likely will add to confusion about whether it’s OK to grow, buy or use marijuana in states where pot is legal, since long-standing federal law prohibits it.  It comes days after pot shops opened in California, launching what is expected to become the world’s largest market for legal recreational marijuana and as polls show a solid majority of Americans believe the drug should be legal.

While Sessions has been carrying out a Justice Department agenda that follows Trump’s top priorities on such issues as immigration and opioids, the changes to pot policy reflect his own concerns.  Trump’s personal views on marijuana remain largely unknown.

Sessions, who has assailed marijuana as comparable to heroin and has blamed it for spikes in violence, had been expected to ramp up enforcement.  Pot advocates argue that legalizing the drug eliminates the need for a black market and would likely reduce violence, since criminals would no longer control the marijuana trade....

Sessions’ policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts, the people familiar with the decision said.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers that have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much more. The decision was a win for pot opponents who had been urging Sessions to take action....

The change also reflects yet another way in which Sessions, who served as a federal prosecutor at the height of the drug war in Mobile, Alabama, has reversed Obama-era criminal justice policies that aimed to ease overcrowding in federal prisons and contributed to a rethinking of how drug criminals were prosecuted and sentenced.  While his Democratic predecessor Eric Holder told federal prosecutors to avoid seeking long mandatory minimum sentences when charging certain lower level drug offenders, for example, Sessions issued an order demanding the opposite, telling them to pursue the most serious charges possible against most suspects.

I want to see exactly what new guidance and statements will come from the Department of Justice and Attorney General Sessions before opining on what this all likely means and portends for federal criminal enforcement and sentencing.  But the question that serves as the title of this post strikes me as the really critical one concerning what comes next. I am inclined to guess that a few local US Attorneys we eager to be free of restrictions created by the 2013 Cole Memo, but that many others have been happy to have a reason not to be to focused on state-legal marijuana business activity. How the implement the new instructions from their boss will be extremely interesting and important for federal marijuana policy, politics and practices in the weeks and months ahead.

Related post from MLP&R:

UPDATEA helpful reader highlighted to me that this news comes on the heels of the announcement yesterday, as detailed in this press release, that "Attorney General Jeff Sessions [Wednesday] announced the appointment of 17 federal prosecutors as Interim United States Attorneys pursuant to 28 U.S.C. § 546."

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

January 3, 2018

Spotlighting felon disenfranchisement in Florida

I am always pleased to see the New York Times editorial board giving attention to criminal justice issues, and I am especially pleased to see this new editorial focused on felon disenfranchisement.  The lengthy piece is headlined "Florida’s 1.5 Million Missing Voters," and here are excerpts:

Everyone remembers that the 2000 presidential election was decided by 537 votes in Florida.  Far fewer remember another important number from the state that year — 620,000, the Floridians who were barred from voting because state records showed, correctly or not, they had been convicted of a felony.

It didn’t matter whether their crime was murder or driving with a suspended license, nor whether they had fully served their sentence. In Florida, the voting ban is entrenched in the Constitution, and it’s for life.  Today, Florida disenfranchises almost 1.5 million of its citizens, more than 11 states’ populations and roughly a quarter of the more than six million Americans who are unable to vote because of a criminal record.

Felon disenfranchisement is a destructive, pointless policy that hurts not only individuals barred from the ballot box, but American democracy at large.  Its post-Civil War versions are explicitly racist, and its modern-day rationales are thin to nonexistent. It can make all the difference in places like Florida, which didn’t stop being competitive in 2000; the state remains a major presidential battleground, and victories for both parties in state and local elections are often narrow.

That could all change if a proposed constitutional amendment gets enough signatures to be placed on the ballot in November and wins enough support.  The initiative would automatically restore voting rights to the vast majority of Floridians who have completed their sentence for a felony conviction, including any term of parole or probation.

This is a long overdue and urgently needed reform.  The only way around Florida’s lifetime ban — as in the other three states with such a ban, Kentucky, Iowa and Virginia — is a direct, personal appeal to the governor.  In the last few years, Terry McAuliffe, as Virginia’s governor, restored voting rights to more than 168,000 people, and the governors in Kentucky and Iowa granted roughly 9 in 10 of the restoration requests they received in the first half of the decade....

The right to vote is the most meaningful mark of citizenship in a democracy. It should be withheld only in extreme circumstances, and its restoration shouldn’t depend on the whims of a governor.  What’s worse, many of these laws, especially in the South, are inextricable from their racist origins. Florida’s was enacted in 1868 — two years after the state thumbed its nose at the 14th Amendment — with the intent to prevent newly freed black people from voting.  Those effects linger today, as one in five black adults in Florida remain disenfranchised because of a criminal record.

The new initiative, which excludes people convicted of murder or sexual offenses, will be placed on the ballot if it receives 766,200 signatures and will take effect if it earns at least 60 percent of the vote. Its advocates have submitted more than one million signatures to date, although many still need to be verified before the Feb. 1 deadline.

One hundred and fifty years after Florida enshrined this awful law, there’s only one clear way to get rid of it.  Legal challenges have fallen short, the governor is no friend to voting rights, and lawmakers have limited power when it comes to constitutional amendments.  It’s time for Florida’s voters to step up and restore the most fundamental constitutional right to more than a million of their neighbors.

I hope this proposed constitutional amendment can get to the ballot and can garner a super-majority of votes.   As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote."

Thinking beyond this ballot initiative, I suspect Congress could enact legislation that could restrict the reach of extreme state felon disenfranchisement laws.  I know Senator Rand Paul spoke about this issue some years back, and I would guess they might be some opportunity for some bipartisan legislation to try to limit how some states seek to limit the franchise.  (I recognize there could be some constitutional/federalism issues raised if Congress gets too involved in state voting laws, but often if there is a will to expand the franchise, there can be a way.) 

January 3, 2018 in Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Detailing increase in felony convictions nationwide in modern times

Stateline has this new piece, headlined "Felony Conviction Rates Have Risen Sharply, But Unevenly," with detailed data on how increases in the number of felony convictions has come to define the modern criminal justice era in the United States. Here are some details:

In recent decades, every state has seen a dramatic increase in the share of its population convicted of a felony, leaving more people facing hurdles in finding a job and a place to live and prompting some states to revisit how they classify crimes.

In Georgia, 15 percent of the adult population was a felon in 2010, up from around 4 percent in 1980. The rate was above 10 percent in Florida, Indiana, Louisiana and Texas. Less than 5 percent of the population in Maine, Nebraska, New Hampshire, New York, Utah and West Virginia were felons, but every state had a large increase between 1980 and 2010, when the felony population ranged from 1 to 5 percent, according to a University of Georgia study published in October....

Proponents of more lenient sentencing tend to focus on imprisonment, where Louisiana and Oklahoma have the highest rates, but probation is more common. There were 1.9 million people on felony probation in 2015, compared to 1.5 million in prison. In 2010, the two figures were about the same, at 1.6 million, according to the latest federal statistics.

Many view probation as a more humane alternative to imprisonment, said Michelle Phelps, an assistant professor of sociology at the University of Minnesota. But in some states probation has become a “net widener” that draws more nonviolent criminals into the stigma and harsh supervision of a felony conviction.

Phelps pointed to Minnesota, which has one of the lowest rates of imprisonment, but ranked 16th for felon population in 2010. That year felons were about 9 percent of Minnesota’s population, or nearly quadruple the rate in 1980. “Though it’s frequently dismissed as a slap on the wrist, probation can entail onerous requirements,” Phelps said. For instance, probation can require a job and good housing as a condition for staying out of prison, but the felony conviction itself can make it hard or impossible to get that job.

Gary Mohr, who heads Ohio’s Department of Rehabilitation and Correction, said a felony conviction can have lifelong consequences, no matter whether the punishment is imprisonment or probation. “Even probation or a six-month sentence is really a life sentence because it affects jobs, it affects housing, it affects everything in their lives,” Mohr said....

The findings may help put probation reform on the front burner in some states. In Georgia, a February 2017 report by a state commission called for shorter probation sentences and lighter caseloads for probation officers. (The Pew Charitable Trusts, which also funds Stateline, assisted with the paper.) Almost 3 percent of Georgia’s adult population was on felony probation as of 2015 — far more than any other state and a 12 percent increase from 2010, according to the latest federal figures from the Bureau of Justice Statistics....

When crime rates rose in the 1980s and early 1990s, local and state leaders hired more police and they made more arrests, including felony arrests, Phelps said. In addition, many states elevated nonviolent crimes like drug possession to felony status, and many district attorneys adopted a get-tough strategy, seeking felony charges whenever possible. Police focused drug enforcement on high-crime neighborhoods, which were often predominantly African-American, Phelps said. As a result, felony convictions rose much faster among blacks than among whites.

In 2010, about 23 percent of the black population had a felony conviction. The number of African-American felons increased more than fivefold between 1980 and 2010, while the number increased threefold for other felons. The University of Georgia study did not calculate separate rates for Hispanics or other minority groups.

In left-leaning states such as Massachusetts, Minnesota and Oregon, one contributor to the growing share of the population with a felony conviction was an increased awareness of new crimes like domestic violence, sexual abuse and animal abuse, said Josh Marquis, a district attorney in Oregon and a 20-year board member of the National District Attorneys Association.

When crime is a major concern in a community, elected district attorneys are especially sensitive to public pressure to file more felony charges, Marquis said. “We are not rewarded for the number of felonies filed,” Marquis said. “But we do face election and accountability to our neighbors who are also our bosses.”

January 3, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

January 2, 2018

NY Times again forcefully calls for Supreme Court to end the use of the death penalty

The New York Times editorial page has long advocated for the abolition of the death penalty, and it started the new year with another long and forceful editorial on this front.  Headlined "Capital Punishment Deserves a Quick Death," here are excerpts:

As the nation enters 2018, the Supreme Court is considering whether to hear at least one case asking it to strike down the death penalty, once and for all, for violating the Eighth Amendment’s ban on cruel and unusual punishments.

Whether the justices take that or another case, the facts they face will be the same: The death penalty is a savage, racially biased, arbitrary and pointless punishment that becomes rarer and more geographically isolated with every year. In 2017 the total number of people sitting on death rows across America fell for the 17th straight year. In Harris County, Tex., the nation’s undisputed leader in state-sanctioned killing, the year passed without a single execution or death sentence — the first time that’s happened in more than 40 years.

Still, Texas was one of just two states — Arkansas is the other — responsible for almost half of 2017’s executions. And nearly one in three of the nation’s 39 new death sentences last year were handed down in three counties: Riverside in California, Clark in Nevada and Maricopa in Arizona.

It would be tempting to conclude from this litany, which is drawn from an annual report by the Death Penalty Information Center, that capital punishment is being reserved for the most horrific crimes committed by the most incorrigible offenders. But it would be wrong. The death penalty is not and has never been about the severity of any given crime. Mental illness, intellectual disability, brain damage, childhood abuse or neglect, abysmal lawyers, minimal judicial review, a white victim — these factors are far more closely associated with who ends up getting executed. Of the 23 people put to death in 2017, all but three had at least one of these factors, according to the report. Eight were younger than 21 at the time of their crime....

The rest of the developed world agreed to reject this cruel and pointless practice long ago. How can it be ended here, for good?

Leaving it up to individual states is not the solution. It’s true that 19 states and the District of Columbia have already banned capital punishment, four have suspended it and eight others haven’t executed anyone in more than a decade. Some particularly awful state policies have also been eliminated in the past couple of years, like a Florida law that permitted non-unanimous juries to impose death sentences, and an Alabama rule empowering judges to override a jury’s vote for life, even a unanimous one, and impose death.

And yet at the same time, states have passed laws intended to speed up the capital appeals process, despite the growing evidence of legal errors and prosecutorial misconduct that can be hidden for years or longer. Other states have gone to great lengths to hide their lethal-injection protocols from public scrutiny, even as executions with untested drugs have gone awry and pharmaceutical companies have objected to the use of their products to kill people.

Last summer, Justice Ruth Bader Ginsburg suggested that the death penalty would eventually end with a whimper. “The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” Justice Ginsburg said at a law school event. “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

That’s a dispiriting take. The death penalty holdouts may be few and far between, but they are fiercely committed, and they won’t stop killing people unless they’re forced to. Relying on the vague idea of attrition absolves the court of its responsibility to be the ultimate arbiter and guardian of the Constitution — and specifically of the Eighth Amendment. The court has already relied on that provision to ban the execution of juvenile offenders, the intellectually disabled and those convicted of crimes against people other than murder.

There’s no reason not to take the final step. The justices have all the information they need right now to bring America in line with most of the rest of the world and end the death penalty for good.

January 2, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

"American Exceptionalism in Crime and Punishment"

9780190203542The title of this post is the title of this new book published by Oxford University Press. The book is an edited collection of essays curated by Kevin Reitz. Here is the publisher's description of the book:

Across the U.S., there was an explosion of severity in nearly every form of governmental response to crime from the 1970s through the 2000s.  This book examines the typically ignored forms punishment in America beyond incarceration and capital punishment to include probation and parole supervision rates-and revocation rates, an ever-growing list of economic penalties imposed on offenders, and a web of collateral consequences of conviction unimaginable just decades ago.  Across these domains, American punitiveness exceeds that in other developed democracies-where measurable, by factors of five-to-ten.  In some respects, such as rates of incarceration and (perhaps) correctional supervision, the U.S. is the world "leader."  Looking to Europe and other English-speaking countries, the book's contributors shed new light on America's outlier status, and examine its causes.  One causal theory examined in detail is that the U.S. has been exceptional not just in penal severity since the 1970s, but also in its high rates of high rates of homicide and other serious violent crimes.

With leading researchers from many fields and national perspectives, American Exceptionalism in Crime and Punishment shows that the largest problems of crime and justice cannot be brought into focus from the vantage point of any one jurisdiction.  Looking cross-nationally, the book addresses what it would take for America to rejoin the mainstream of the Western world in its uses of criminal penalties.

Kevin kindly sent me a copy of the book's Table of Contents and his introductory chapter for posting. That chapter can be downloaded below, following these passages from that chapter's introduction:

One goal of this book is to broaden the scope of American Exceptionalism in Crime and Punishment (AECP) inquiry to include sanctions beyond incarceration and the death penalty.  From what we know, it is reasonable to hypothesize that the United States imposes and administers probation, parole, economic sanctions, and collateral consequences of conviction with a heavier hand than other developed democracies.  Although the inquiries in this book are preliminary, they raise the possibility that AECP extends across many landscapes of criminal punishment — and beyond, to the widespread social exclusion and civil disabilities imposed on people with a conviction on their record.

In addition, the book insists that any discussion of AECP should focus on US crime rates along with US penal severity.  More often than not, American crime is discounted in the academic literature as having little or no causal influence on American criminal punishment.  This is a mistake for many reasons but is especially unfortunate because it truncates causation analyses that should reach back to gun ownership rates, income inequality, conditions in America’s most disadvantaged neighborhoods, and possibilities of joint or reciprocal causation in the production of US crime rates and punitive severity.

This chapter is divided into three segments.  First, it includes a brief tour of the conventional AECP subject areas of incarceration and the death penalty.  Second, it will introduce claims that a wider menu of sanction types should be included in AECP analyses. Third, it will speak to the importance of late twentieth-century crime rates to US punitive expansionism.

Download AECP Reitz Introduction for SSRN

January 2, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

January 1, 2018

Prez Reagan's Secretary of State laments "The Failed War on Drugs"

There is nothing really all that notable about this recent New York Times op-ed, headlined "The Failed War on Drugs," save for its authors.  George Shultz, who served as Secretary of State in the Reagan Administration, penned the piece alon with Pedro Aspe, a former secretary of finance in Mexico.  Actually, the op-ed is also notable because it is has some shaky statements (like its suggestion Nancy Reagan tried to charge the modern US drug war), but it is still worth seeing how it makes its case for modern reform in the Americas:

The war on drugs in the United States has been a failure that has ruined lives, filled prisons and cost a fortune.  It started during the Nixon administration with the idea that, because drugs are bad for people, they should be difficult to obtain.  As a result, it became a war on supply.

As first lady during the crack epidemic, Nancy Reagan tried to change this approach in the 1980s.  But her “Just Say No” campaign to reduce demand received limited support. Over the objections of the supply-focused bureaucracy, she told a United Nations audience on Oct. 25, 1988: “If we cannot stem the American demand for drugs, then there will be little hope of preventing foreign drug producers from fulfilling that demand.  We will not get anywhere if we place a heavier burden of action on foreign governments than on America’s own mayors, judges and legislators. You see, the cocaine cartel does not begin in Medellín, Colombia. It begins in the streets of New York, Miami, Los Angeles and every American city where crack is bought and sold.”

Her warning was prescient, but not heeded.  Studies show that the United States has among the highest rates of drug use in the world.  But even as restricting supply has failed to curb abuse, aggressive policing has led to thousands of young drug users filling American prisons, where they learn how to become real criminals.

The prohibitions on drugs have also created perverse economic incentives that make combating drug producers and distributors extremely difficult.  The high black-market price for illegal drugs has generated huge profits for the groups that produce and sell them, income that is invested in buying state-of-the-art weapons, hiring gangs to defend their trade, paying off public officials and making drugs easily available to children, to get them addicted.

Drug gangs, armed with money and guns from the United States, are causing bloody mayhem in Mexico, El Salvador and other Central American countries. In Mexico alone, drug-related violence has resulted in over 100,000 deaths since 2006.  This violence is one of the reasons people leave these countries to come to the United States.

First the United States and Mexican governments must acknowledge the failure of this strategy.  Only then can we engage in rigorous and countrywide education campaigns to persuade people not to use drugs.  The current opioid crisis underlines the importance of curbing demand.  This approach, with sufficient resources and the right message, could have a major impact similar to the campaign to reduce tobacco use.

We should also decriminalize the small-scale possession of drugs for personal use, to end the flow of nonviolent drug addicts into the criminal justice system.  Several states have taken a step in this direction by decriminalizing possession of certain amounts of marijuana.  Mexico’s Supreme Court has also declared that individuals should have the right to grow and distribute marijuana for their personal use.  At the same time, we should continue to make it illegal to possess large quantities of drugs so that pushers can be prosecuted and some control over supply maintained.

Finally, we must create well-staffed and first-class treatment centers where people are willing to go without fear of being prosecuted and with the confidence that they will receive effective care.  The experience of Portugal suggests that younger people who use drugs but are not yet addicted can very often be turned around.  Even though it is difficult to get older addicted people off drugs, treatment programs can still offer them helpful services....

We have a crisis on our hands — and for the past half-century, we have been failing to solve it.  But there are alternatives.  Both the United States and Mexico need to look beyond the idea that drug abuse is simply a law-enforcement problem, solvable through arrests, prosecution and restrictions on supply.  We must together attack it with public health policies and education.  We still have time to persuade our young people not to ruin their lives.

January 1, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Is criminal justice reform really "poised to take off in 2018"?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Criminal justice reform poised to take off in 2018."  Here are excerpts:

Criminal justice reform came back with such renewed energy this year after sputtering out in Congress in 2016 that meaningful bipartisan legislation is poised for success in 2018.

In October, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced he and a bipartisan group of senators were reintroducing the Sentencing Reform and Corrections Act, which would overhaul prison sentences for nonviolent drug offenders and allow for more judicial discretion during sentencing. The bill mirrors legislation introduced last Congress that failed after Senate Majority Leader Mitch McConnell, R-Ky., refused to bring it up.

Then days later, Sens. Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas, reintroduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act, which builds off of successful criminal justice reforms in the senators' respective states.

The CORRECTIONS Act requires the Department of Justice and its Federal Bureau of Prisons to find a way to reduce inmate recidivism rates. It also calls for lower-risk inmates to be put in less-restrictive conditions to reduce prison costs and allow for more resources to be shifted to law enforcement. The legislation also expands recidivism-reduction programs, and requires the federal probation office to plan for re-entry of prisoners ahead of time....

And finally, the Mens Rea Reform Act was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Republican Sens. Mike Lee of Utah, Ted Cruz of Texas, David Perdue of Georgia and Rand Paul of Kentucky....

Kara Gotsch, who oversees the Sentencing Project's federal advocacy work, told the Washington Examiner, she sees the likelihood of legislation passing as "small" and cited changes being made at the federal level in the Department of Justice under Attorney General Jeff Sessions as a cause for concern. "Areas to watch are how Sessions' harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed," Gotsch said, noting the Justice Department has predicted an increase in the prison population in 2018 after four years of decline under the Obama administration.

"Also, the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence. I will be watching to see how far they extend it."

The Justice Department says it will "continue to enforce the law" as the nation faces an opioid epidemic and rising violent crime. “In 2016, 64,000 Americans died from drug overdoses. For two straight years, violent crime has been on the rise. Americans voted for President Trump's brand of law and order and rejected the soft on crime policies that made it harder to prosecute drug traffickers and put dangerous criminals back on the street where our law enforcement officers face deadly risks every day," Justice Department spokesman Ian Prior said.

Where Congress could fail in 2018, states are there to pick up the slack....

For example, Republican Gov. Rick Snyder of Michigan signed an 18-bill criminal justice reform package in March, and state legislators in Florida ended the year championing various bills that they say would help reduce the state’s burgeoning prison population. A pair of measures are set to be taken up that would implement pre-arrest diversion programs statewide that Florida lawmakers say would reduce crime and incarceration rates, as well as a measure that would restore voting rights to some 1.6 million felons in the Sunshine State.

Other states such as New Jersey, Virginia, Alabama and New York elected candidates during the 2017 elections who openly support criminal justice reform, setting up the possibility for revamping at the state and local levels next year.

Phil Murphy, who was elected in a landslide to be the new governor of New Jersey, promised he would put the Garden State in a position to pass criminal justice reform. On his campaign website, he promises changes such as creating a commission to examine mandatory minimum laws, implementing bail reform to prevent someone from being stuck behind bars for being unable to pay a fine, and the legalization of marijuana “so police can focus resources on violent crime.”

"It's important to recognize that 2017 saw passage of criminal justice reform in red and blue states throughout the nation, in contrast to reforms stalling on the federal level," Udi Ofer, deputy national political director at the America Civil Liberties Union said. The ACLU worked to help pass 57 pieces of criminal justice reform legislation in 19 states, he noted.

"From sentencing reform in Louisiana and bail reform in Connecticut, to drug reform in Oregon and probation reform in Georgia, this year proved that the movement for criminal justice reform continues to be strong in the states, even under a Trump-Sessions administration," Ofer said, adding that in 2018, the ACLU expects "these reforms to continue, and to grow, particularly around bail reform, prosecutorial reform and sentencing reform."

For 2018, he said the ACLU is working on bail reform in 33 states including California, Georgia, Ohio and New York. In July, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced the Pretrial Integrity and Safety Act, which would encourage states to change or replace the process they use for allowing people to pay money to avoid sitting in jail until their trial. Ofer also said he expected the issues of mass incarceration and criminal justice reform to "play a larger role in federal and state elections in 2018" following the wins of candidates supporting such reforms in 2017.

As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible "easier" legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.

December 31, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)