January 19, 2018
US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs
As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:
Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission. The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.
The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”. An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.
Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."
During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.
Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.
A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.
The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.
January 18, 2018
New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"
This notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism." Here are parts of its introduction:
In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.
One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000. This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.
Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014. This analysis indicated that the predictions were unreliable and racially biased. COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants. The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....
While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way. We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier. We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.
A few (of many) prior related posts on risk assessment tools:
- ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
- "Assessing Risk Assessment in Action"
- Thoughtful account of what to think about risk assessment tools
- "The Use of Risk Assessment at Sentencing: Implications for Research and Policy"
- Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
- "In Defense of Risk-Assessment Tools"
- Parole precogs: computerized risk assessments impacting state parole decision-making
- Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS
- "Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"
- Expressing concerns about how risk assessment algorithms learn
- "Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"
Texas completes first execution of 2018
As reported in this AP piece, headlined "'Tourniquet Killer' executed in Texas for 1992 strangling," the first execution of the year was completed in Texas this evening. Here is the story:
Texas carried out the nation's first execution of 2018 Thursday evening, giving lethal injection to a man who became known as Houston's "Tourniquet Killer" because of his signature murder technique on four female victims. Anthony Allen Shore was put to death for one of those slayings, the 1992 killing of a 21-year-old woman whose body was dumped in the drive-thru of a Houston Dairy Queen.
In his final statement, Shore, 55, was apologetic and his voice cracked with emotion. "No amount of words or apology could ever undo what I've done," Shore said while strapped to the death chamber gurney. "I wish I could undo the past, but it is what it is."
As the lethal dose of pentobarbital began, Shore said the drug burned. "Oooh-ee! I can feel that," he said before slipping into unconsciousness. He was pronounced dead 13 minutes later at 6:28 p.m. CST.
"Anthony Allen Shore's reign of terror is officially over," Andy Kahan, the city of Houston crime victims' advocate, said, speaking for the families of Shore's victims. "There's a reason we have the death penalty in the state of Texas and Anthony Shore is on the top of the list. This has been a long, arduous journey that has taken over 20 years for victims' families."
Shore's lawyers argued in appeals he suffered brain damage early in life that went undiscovered by his trial attorneys and affected Shore's decision to disregard their advice when he told his trial judge he wanted the death penalty. A federal appeals court last year turned down his appeal, the U.S. Supreme Court refused to review his case and the six-member Texas Board of Pardons and Paroles unanimously rejected a clemency petition.
In 1998, Shore received eight years' probation and became a registered sex offender for sexually assaulting two relatives. Five years later, Shore was arrested for the 1992 slaying of Maria del Carmen Estrada after a tiny particle recovered from under her fingernail was matched to his DNA. "I didn't set out to kill her," he told police in a taped interview played at his 2004 trial. "That was not my intent. But it got out of hand."...
He also confessed to killing three others, a 9-year-old and two teenagers. All four of his victims were Hispanic and at least three had been raped. Jurors also heard from three women who testified he raped them.
Harris County District Attorney Kim Ogg, who as an assistant prosecutor worked the then-unsolved Estrada case, said crime scene photos showed Estrada was tortured and had suffered as a stick was used to tighten a cord around her neck. "I know this case, I know his work and the death penalty is appropriate," she said. "A jury in this case gave Shore death. ... I think he's reached the end of the road and now it's up to government to complete the job."
Besides Estrada, Shore confessed to the slayings of Laurie Tremblay, 15, found beside a trash bin outside a Houston restaurant in 1986; Diana Rebollar, 9, abducted while walking to a neighborhood grocery store in 1994; and Dana Sanchez, 16, who disappeared in 1995 while hitchhiking to her boyfriend's home in Houston....
In 2017, 23 convicted killers were put to death in the U.S., seven of them in Texas, more than another state. Three more inmates are scheduled to die in Texas in the coming weeks.
"Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices"
The title of this post is the title of this notable new report recently released by the Stanford Criminal Justice Center and authored by Katherine Moy, Dennis Martin, and David Alan Sklansky. Here is its executive summary:
Local prosecutor elections can have uniquely consequential results for the American criminal justice system. Paradoxically, however, these elections attract much less voter engagement than other races, and incumbents are repeatedly re-elected. As a result, activists seeking to convince prosecutors to pursue reforms, or to elect new reform-minded prosecutors, have a hard time communicating just how well a given office is performing.
A prosecutorial rating system is one approach to remedying this information gap. Much like indices used in other public policy areas, such a rating system could be a critical way of communicating to voters and potential electoral challengers whether a prosecutors’ office has effectively pursued the electorate’s policy priorities.
This report begins to chart a path toward building such a rating system. Drawing on the expertise of experienced public policy index developers, the report outlines a procedure that developers can follow to design and build their own scorecard. The process described in the report involves several stages, during which developers will need to grapple with key policy and logistical issues.
Although the contours of the process are flexible, the report lays out the following steps to developing a prosecutorial rating system:
1) Gather key personnel and experts and set project benchmarks.
2) Define the index’s goals and target audience, including any intermediaries that might be enlisted to convey the index’s message.
3) Select the variables the index will use to measure performance and decide how much weight to attribute to each variable.
4) Gather data for each variable, including any proxy measurements to use where direct data is unavailable.
5) Aggregate and normalize the data in a coherent, rigorous, digestible format.
6) Disseminate and build support for the index.
Each of these stages involves complex decisions, many of which may need to be revisited throughout the development process. But walking through each of the stages methodically can help highlight areas of dispute and place in a broader procedural context. By keeping the index’s overall goals in mind as they work through the minute details of each stage, developers are more likely to be able to create a successful index to help meet their reform objectives.
Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing
The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:
General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence." We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process. We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here. We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....
"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society." Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010). The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision. They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone. We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.
We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim. We affirm.
UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week. The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:
Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.
An accounting of how criminal justice has changed as the folks inside the Beltway have changed
The Marshall Project has this notable new piece headlined "Trump Justice, Year One: The Demolition Derby; Here are nine ways the law-and-order president has smashed Obama’s legacy." Here is how the piece sets up its listing (readers can click through to review the particulars):
On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist. By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees. His Justice Department intervened in cities where communities had lost trust in their police.
After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities — in effect, a parallel criminal justice system — on migrants considered dangerous, and created safeguards for those brought here as children. He visited a prison, endorsed congressional reform of mandatory minimum sentences and spoke empathetically of the Black Lives Matter movement. He nominated judges regarded as progressives.
In less than a year, President Trump demolished Obama's legacy.
In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law,” which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.
“I think all roads in Trump's rhetoric and Sessions’ rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology. “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on -- restricting immigration of all sorts.”
Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.
January 17, 2018
Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push
Vice News has this new piece providing a little backstory on how and why the event last week at the White House was focused only on prison reform and lacked any discussion of sentencing reform. The piece is headlined "Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions," and here are excerpts:
For the past six months, the president’s son-in-law Jared Kushner has been working on a potentially bipartisan initiative: to reform the U.S. criminal justice system. Kushner has been holding “listening sessions” to develop White House agenda on criminal justice reform, including policy recommendations such as providing incentives to companies for hiring former felons, investing in inmates once they leave prison, and perhaps most importantly, reforming sentencing laws, including mandatory minimum sentencing, a relic of the 1980s and 90s war on drugs and the focus of a three-year bipartisan reform effort in the Senate.
It all culminated in last week’s White House roundtable discussion on prison reform with President Trump, several Republican governors, and conservative activists. Except one thing was missing: sentencing reform. Attorney General Jeff Sessions opposes reforming mandatory minimum sentencing and effectively blocked it from becoming part of the White House reform agenda, according to three people who attended meetings with White House advisors on the issue over the past few months.
“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” a source familiar with White House meetings on the issue said. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”
As the prison reform debate played out, Kushner expressed support for limiting mandatory minimum sentencing, according to individuals who have discussed these issues with him, aligning him with Senate Republicans on the Judiciary Committee. But Kushner dropped the issue from the agenda in order to get Sessions to attend the roundtable discussion last week.
At the meeting Trump suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation. There was no discussion of sentencing laws. The White House did not respond to a request for clarification about the Kushner’s nor the White House’s official position on sentencing reform.
“The president directed the Attorney General to reduce violent crime in this country and he is focusing the Department’s efforts on achieving that goal. Incarceration remains necessary to improve public safety, and the effectiveness of incarceration can be enhanced by the implementation of evidence-based reentry programs,” a spokesperson for the Department of Justice said.
“They were never going to be able to get the President to say he supports sentencing reform based on what Sessions has told him,” a source familiar with the meetings said.
A majority of Republicans and Democrats support reforming mandatory minimum sentencing, which takes sentencing leeway away from judges. Since then the federal prison population has quadrupled; more than half of all federal inmates were sentenced using mandatory minimum laws.
Meaningful sentencing reform is considered key to any reform package that could be brought to vote in the Senate. Republican Sen. Chuck Grassley of Iowa, Judiciary Committee Chairman, said sentencing reform is a must-have if Trump wants a bill to pass. “Any proposal that doesn't include sentencing reform is not going to get through the committee,” a spokesman for Grassley said in an email....
In October, the Senate Judiciary Committee unveiled its latest criminal justice reform bill — the Sentencing Reform and Corrections Act — to eliminate many mandatory-minimum sentences for drug crimes. This is not the first time Congress has tried to pass comprehensive reform. The same bill made it out of the committee in 2015, but was never voted on due to loud opposition from a group of Republicans, including then-Senator Jeff Sessions.
I remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote. But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.
That all said, the kinds of prison reform being discussed and seemingly now endorsed by AG Sessions — some version of the corrections part of the Sentencing Reform and Corrections Act — could be a very significant type of reform that could have a positive impact for every federal offender. Sentencing reform in the form of a reduction in the length and reach of mandatory minimums would be very important in lots of ways, but these mandatories only directly impact roughly 1/4 of all new federal offenders each year and it is unclear exactly when and how any mandatory minimum sentencing reforms would be extended to the roughly 90,000 current federal drug offense prisoners. Corrections reforms that allow prisoners to earn reductions in their sentences could and likely would impact all 180,000+ current federal prisoners and all those new prisoners brought into the system every years.
Of course, we need to see the particulars of any "evidence-based reentry programs" and other prison reforms that AG Sessions can abide before being able to assess effectively who might benefit from a reform bill with only the corrections part of the reform equation. But my main point it to highlight that the import and impact of any discussed reform always has devilish elements in the details, and a that good form of prison reform may be even better and much more consequential than a middling form of sentencing reform.
Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data
I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017. Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department. Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.
I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)
USSC FY Total Sentences (mean in month) Drug Trafficking Sentences (mean in month) Immigration Sentences (mean in month)
2009 81,347 (47 months) 23,931 (78 months) 25,924 (17 months)
2013 80,035 (45 months) 22,354 (72 months) 24,972 (16 months)
2016 67,740 (44 months) 19,231 (66 months) 20,052 (13 months)
2017 66,409 (45 months) 18,980 (70 months) 20,333 (12 months)
One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics. Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post).
Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.
"Breaking Down Barriers: Experiments into Policies That Might Incentivize Employers to Hire Ex-Offenders"
The title of this post is the title of this notable new Rand Corporation research report. Here is its summary and some of its key findings and recommendations:
The rate of criminal punishment in the United States has had far-reaching economic consequences, in large part because people with criminal records are marginalized within the labor market. Given these negative economic implications, federal, state and local officials have developed a host of policies to encourage employers to hire ex-offenders, with varying degrees of success. To inform policies and programs aimed at improving employment rates for ex-offenders, we examined employer preferences regarding policy options targeted to incentivize hiring individuals with one nonviolent felony conviction.
In our experiments, we found employers were 69 percent more likely to consider hiring an ex-offender if a hiring agency also provides a guaranteed replacement worker in the event the ex-offender was deemed unsuitable and 53 percent more likely to hire an ex-offender who can provide a certificate of validated positive previous work performance history. Having consistent transportation provided by a hiring agency increased the likelihood of being considered for hire by 33 percent.
Employers also were found to be 30 percent more likely to consider an ex-offender for hire if the government increases the tax credit from 25 percent of the worker’s wages (up to $2,500) to 40 percent (up to $5,000) — double the current maximum amount allowed by the Work Opportunity Tax Credit — and 24 percent more likely to hire an ex-offender if the government completed all tax-related paperwork.
Worker Replacement and Fee Discounts Increase Hiring Prospects for Ex-Offenders...
Tax Credits Have a Similarly Positive Effect...
Employer Access to Previous Performance Could Factor into Hiring...
- Staffing agencies and reentry or reintegration programs could increase the likelihood of employment for people with a criminal record if they guarantee prospective employers a replacement employee.
- State policymakers should consider expanding post-conviction certification programs. Across both the tax credit and staffing agency discount experiments, employers demonstrate a clear preference for wanting to know whether an ex-offender job candidate has a consistent work history and verifiable positive employment references versus simply knowing whether the person follows company codes of conduct.
- Tax agencies should consider reducing the paperwork that companies have to fill out for credits. Government agencies could also consider providing help to prepare and submit the forms.
- Ensuring reliable transportation to and from a job site for candidates with a criminal record increases the likelihood an employer will support hiring such individuals. As with reducing paperwork, the impact of this policy is more limited than many of our other tested policy features.
Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"
Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:
A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.
The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses — such as sex trafficking — and that DOJ has placed a high priority on prosecuting these offenses.
The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....
The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending. Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.
Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst. While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.
Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."
Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.
There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement. More than ten images? Enhancement. Distribution, even unintentional distribution, as discussed above? Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement. Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.
No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences. As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory — that even possession of such images drives a market for child pornography. The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.
Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.
Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course. Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.
January 16, 2018
"A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform"
The title of this post is the title of this notable new paper authored by John Pfaff for the American Enterprise Institute. Here is its abstract:
This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support. Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments. If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.
Effective state-by-state review of recent crime rate and imprisonment rate declines
The folks at The Pew Charitable Trusts' public safety performance project have this terrific new state-by-state accounting of recent crime and incarceration rates under the heading "National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms: More than two-thirds of states cut crime and imprisonment from 2008-16." The infographic alone merits a click-through, and her is the accompanying text:
After peaking in 2008, the nation’s imprisonment rate fell 11 percent over eight years, reaching its lowest level since 1997, according to an analysis of new federal statistics by The Pew Charitable Trusts. The decline from 2015-16 was 2 percent, much of which was due to a drop in the number of federal prisoners. The rate at which black adults are imprisoned fell 4 percent from 2015-16 and has declined 29 percent over the past decade. The ongoing decrease in imprisonment has occurred alongside long-term reductions in crime. Since 2008, the combined national violent and property crime rate dropped 23 percent, Pew’s analysis shows.
Also since that 2008 peak, 36 states reduced their imprisonment rates, including declines of 15 percent or more in 20 states from diverse regions of the country, such as Alaska, Mississippi, South Carolina, and Connecticut. During the same period, almost every state recorded a decrease in crime with no apparent correlation to imprisonment (see Figure 1). The latest data, released Jan. 9 by the federal Bureau of Justice Statistics, show that trends in crime and imprisonment continue to be unrelated:
• Across the 45 states with crime declines from 2008-16, imprisonment rate changes ranged from a 35 percent decrease to a 14 percent increase.
• 35 states cut crime and imprisonment rates simultaneously.
• 21 states posted double-digit declines in both rates.
• The average crime decline across the 10 states with the greatest declines in imprisonment was 19 percent, and across the 10 states with the largest imprisonment growth it was 11 percent.
The annual national violent crime rate increased in 2015 and 2016, but many cities are reporting reductions for 2017, and both violent and total crime rates remain near record lows. National, state, and local crime rates shift for complex and poorly understood reasons, and experts offer a wide range of possible explanations; overall, however, the rates of reported violent and property crime have declined by more than half since their 1991 peaks, falling to levels not seen since the late 1960s.
Starting with Texas in 2007, more than 30 states have adopted sentencing and corrections reforms designed to improve public safety and control taxpayer costs. The reforms vary from state to state, but typically they prioritize prison space for people who have committed serious offenses and invest some of the savings in effective alternatives to incarceration. Research shows that investment in evidence-based re-entry programs reduces recidivism, contributing to declines in crime and imprisonment. Several states have cut return-to-prison rates significantly, including Georgia (35 percent) and Michigan (43 percent) over the past decade.
The lack of a consistent relationship between the crime and imprisonment trends reinforces a growing body of research and expert consensus that imprisonment in many states and the nation as a whole has long since passed the point of diminishing returns. This indicates that local, state, and federal policymakers can adopt additional reforms to reduce imprisonment without jeopardizing public safety.
Is "tough-on-crime" no longer a winning political strategy?
The question in the title of this post is prompted by this new Daily Beast article authored by Inimai Chettiar and Udi Ofer, which is headlined "The ‘Tough on Crime’ Wave Is Finally Cresting." Here are excerpts:
For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook. But the “tough on crime” Attorney General may be in for a surprise. In 2018, it turns out, demagoguery about crime no longer packs a political punch. In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.
This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s. Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes. Ronald Reagan launched a “war on drugs.” George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program. Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year....
Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy. Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.
Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime. His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates. This has chilled the artery of many politicians once eager to support reform efforts in Washington.
For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics. But something unexpected happened on the way to the backlash.
Lawmakers in blue and red states alike pressed forward with reforms. In 2017, 19 states passed 57 pieces of bipartisan reform legislation. Louisiana reduced sentences. Connecticut modernized bail. Georgia overhauled probation. Michigan passed an 18-bill package to reduce its prison population.
And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.
Urban politics have been transformed, too. District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia. Justice reform proved a powerful organizing issue among the young and in communities of color.
January 15, 2018
Some new quotes at the end of the latest MLK day
I was stuck in a car for most of this day for celebrating the life and legacy of Martin Luther King, and thus I am only now getting a chance late in the day to honor this great man. Many years, I make sure to spend time listening to the full "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. I have previously flagged some quotes from that speech, but this year I figured I would look to another MLK source for inspiration. Specifically, as I gear up to go back to teaching, I thought interesting a few lines from this MLK college essay titled "The Purpose of Education." A mere eighteen years old, MLK shows himself to already be wise beyond his years (and enduringly timely):
Education must also train one for quick, resolute and effective thinking. To think incisively and to think for one's self is very difficult. We are prone to let our mental life become invaded by legions of half truths, prejudices, and propaganda. At this point, I often wonder whether or not education is fulfilling its purpose. A great majority of the so-called educated people do not think logically and scientifically. Even the press, the classroom, the platform, and the pulpit in many instances do not give us objective and unbiased truths. To save man from the morass of propaganda, in my opinion, is one of the chief aims of education. Education must enable one to sift and weigh evidence, to discern the true from the false, the real from the unreal, and the facts from the fiction.
The function of education, therefore, is to teach one to think intensively and to think critically. But education which stops with efficiency may prove the greatest menace to society. The most dangerous criminal may be the man gifted with reason, but with no morals....
We must remember that intelligence is not enough. Intelligence plus character -- that is the goal of true education. The complete education gives one not only power of concentration, but worthy objectives upon which to concentrate.
Links to some prior MLK Day posts:
- Should criminal justice reform be the new civil rights movement?
- Honoring MLK by asking hard questions
- Reflecting on race and criminal justice realities to honor MLK's legacy
- Another reminder of race and criminal justice realities to honor MLK's legacy
- Is there less discussion of race and criminal justice since Obama's election?
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
- Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms
January 14, 2018
"How to make an innocent client plead guilty"
The title of this post is the headline of this depressing and depressingly familiar tale told by public defender Jeffrey D. Stein in The Washington Post. Here is an excerpt:
The conversation almost always begins in jail. Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made. Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week. And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.
Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release....
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case. The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing....
The other option, you explain to your client, is to accept the plea offer. In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades. It’s no wonder 95 percent of all defendants accept plea offers. Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.
You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday. But your client would have to accept responsibility for a crime they may not have committed....
The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.”
But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” The marshals lead your shackled client to a cage behind the courtroom. And the judge moves on to the next case.