September 22, 2018
"Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty"
The title of this post is the title of this new article on SSRN authored by Vanessa Edkins and Lucian Dervan. Here is its abstract:
With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether informing individuals of collateral consequences would alter their decisions to plead. Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences — especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention — would not have the desired effect of exerting a strong influence on decisions to plead.
Across two studies — the first, an exploratory within-subjects design; the second, a more controlled between-subjects design — we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved. We also saw that, in general, participants were not opposed to the imposition of most collateral consequences. Future directions for plea bargaining research are discussed.
September 21, 2018
Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?
The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case. Here are the basics:
Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.
Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.
Fell was convicted and sentenced to death in 2005. But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.
But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole. A judge must still accept the agreement.
Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.
As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution. But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would. So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).
That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution. This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:
The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.
Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....
"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.
Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting. Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process. "I would just as soon go to court all over again if I knew that he would come out with the death penalty. And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."
Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....
It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.
I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution. Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.
Prior related posts:
- Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
- Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
- Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty
So much great content and commentary at "The Appeal"
I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level." The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:
"The Incalculable Costs Of Mass Incarceration" by John Pfaff
Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith
"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing
Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs
A new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US. This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:
The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States. Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths. The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.
Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies. At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases. In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death. We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.
The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016. This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories. Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time. Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel). Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine. Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.
The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979. Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve. This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process. This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales. This variability all but negates the possibility of confident predictions about the future role of specific drugs. Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.
Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.
Recent prior related post:
September 20, 2018
"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:
When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?
At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.
“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”
Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.
And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....
Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.
“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....
Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”
Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”
Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.
Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.
A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.
In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.
Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.
Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.
Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.
Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
Brennan Center reports on encouraging 2018 crime data based on preliminary data from largest 30 US cities
The folks at the Brennan Center for Justice have this notable new report, titled "Crime and Murder in 2018: A Preliminary Analysis," which finds that "across the cities where data is available, the overall murder and crime rates are projected to decline in 2018." Here is more from the start of the short and heartening report:
This report analyzes available crime data from police departments in the 30 largest U.S. cities. It finds that across the cities where data is available, the overall murder and crime rates are projected to decline in 2018, continuing similar decreases from the previous year. This report is based on preliminary data and is intended to provide an early snapshot of crime in 2018 in the 30 largest cities. This data will be updated in later reports.
Declines in homicide rates appear especially pronounced in cities that saw the most significant spikes during 2015 and 2016. These findings directly undercut claims that American cities are experiencing a crime wave. Instead, they suggest that increases in the murder rate in 2015 and 2016 were temporary, rather than signaling a reversal in the long-term downward trend....
Murder: The 2018 murder rate in these cities is projected to be 7.6 percent lower than last year. This estimate is based on data from 29 of the nation’s 30 largest cities. This murder rate is expected to be approximately equal to 2015’s rate, near the bottom of the historic post-1990 decline....
Overall Crime: At the time of publication, full crime data — covering all Part I index crimes tracked by the FBI — were only available from 19 of the 30 largest cities. (Past Brennan Center reports included, on average, 21 cities.) In these cities, the overall crime rate for 2018 is projected to decrease by 2.9 percent, essentially holding stable. If this estimate holds, this group of cities will experience the lowest crime rate this year since at least 1990. These findings will be updated with new data when available.
This report does not present violent crime data because the authors could not collect sufficient data by the time of publication.
"Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty"
The title of this post is the title of this new report from the Cornell Center on the Death Penalty Worldwide. Here are excerpts from its executive summary:
We estimate that at least 500 women are currently on death rows around the world. While exact figures are impossible to obtain, we further estimate that over 100 women have been executed in the last ten years — and potentially hundreds more. The number of women facing execution is not dramatically different from the number of juveniles currently on death row, but the latter have received a great deal more attention from international human rights bodies, national courts, scholars, and advocates.
This report aims to shed light on this much-neglected population. Few researchers have sought to obtain information about the crimes for which women have been sentenced to death, the circumstances of their lives before their convictions, and the conditions under which they are detained on death row. As a result, there is little empirical data about women on death row, which impedes advocates from understanding patterns in capital sentencing and the operation of gender bias in the criminal legal system. To the extent that scholars have focused on women on death row, they have concluded that they are beneficiaries of gender bias that operates in their favor. While it is undeniable that women are protected from execution under certain circumstances (particularly mothers of infants and young children) and that women sometimes benefit from more lenient sentencing, those that are sentenced to death are subjected to multiple forms of gender bias.
Most women have been sentenced to death for the crime of murder, often in relation to the killing of family members in a context of gender-based violence. Others have been sentenced to death for drug offenses, terrorism, adultery, witchcraft, and blasphemy, among other offenses. Although they represent a tiny minority of all prisoners sentenced to death, their cases are emblematic of systemic failings in the application of capital punishment....
Our research also indicates that women who are seen as violating entrenched norms of gender behavior are more likely to receive the death penalty. In several cases documented in this report, women facing the death penalty have been cast as the “femme fatale,” the “child murderer,” or the “witch.” The case of Brenda Andrew in the United States is illustrative. In her capital trial, the prosecution aired details of her sexual history under the guise of establishing her motive to kill her husband. The jury was allowed to hear about Brenda’s alleged extramarital affairs from years before the murder, as well as details about outfits she wore. The trial court also permitted the prosecutor to show the underwear found in the suitcase in her possession after she fled to Mexico, because it showed that she was not behaving as “a grieving widow, but as a free fugitive living large on a Mexico beach.” As one Justice of the Court of Criminal Appeals of Oklahoma noted, Brenda was put on trial not only for the murder of her husband but for being “a bad wife, a bad mother, and a bad woman.”...
Our country profiles aim to provide a snapshot of women facing the death penalty in several major regions of the world. The stories of women on death row provide anecdotal evidence of the particular forms of oppression and inhumane treatment documented in this report. It is our hope that this initial publication, the first of its kind, will inspire the international community to pay greater attention to the troubling plight of women on death row worldwide.
September 19, 2018
An impressive overview of the SCOTUS criminal docket on the eve of a new Term
Rory Little has this terrific lengthy post over at SCOTUSblog under the heading "Criminal cases in the October 2018 term: A law professor’s dream." The post provides a detailed review of a handful of the criminal cases on tap for the start for the coming Supreme Court Term as well as a brief review of all the other. Here is how the post begins:
Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream.
Opportunities for law students and recent law grads interested in prisoners’ rights
Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law asked me to post the following. It is my pleasure to do so:
Below are two announcements for law students and recent law grads interested in prisoners’ rights:
About 18 months ago, the UCLA Prison Law and Policy Program launched Prison Law JD, a listserv for current law students and young lawyers interested in prisoners’ rights. The list is currently used to share job and fellowship announcements and other information of interest, and we are in the midst of creating mechanisms to allow members to connect to one another directly over issues of mutual interest. The ultimate aim is to forge a community among the next generation of prisoners’ rights advocates. If you know any law students or young lawyers who might want to join Prison Law JD, please invite them to contact me at firstname.lastname@example.org.
The National Prisoners’ Advocates Conference will take place at University of Denver College of Law Oct 5-6, 2018. The day before, Thursday Oct 4, Prison Law JD will be hosting a pre-conference program. If you know anyone you think might like to participate in either part of this program, whether in person or remotely, please share this information with them.
From 3:30-5:15pm, there will be a panel discussion geared toward law students and recently graduated lawyers interested in doing this work. The panel will feature Sarah Grady of Loevy and Loevy on the nuts and bolts of prisoner litigation, Deb Golden of the Human Rights Defense Center on the Prison Litigation Reform Act (PLRA), and Bret Grote of the Abolitionist Law Center on non-obvious routes to doing prisoners' rights work.
For those unable to attend in person, this panel will be broadcast at the link below:
Starting out as a Prisoners’ Rights Lawyer: What You Need to Know, 10/4/2018 (Thu)
Live stream from classroom starts at 3:20pm and ends at 5:30pm.
At 5:45pm, there will be a working group strategy session to think about how to build out the Prison Law JD community and best support the next generation of prisoners’ rights lawyers. Those who can’t be there in person are welcome to participate remotely. Here’s the call-in info:
Zoom Conference Call in Number and Meeting ID Number (Meeting Starts at 5:45 pm and Ends at 8:00 pm MDT)
Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 646 558 8656 or +1 669 900 6833
Meeting ID: 568 249 890 International numbers available: https://zoom.us/u/aewKZAGStV
Any questions? Please contact Sharon Dolovich at email@example.com
"A Way Out: Abolishing Death By Incarceration in Pennsylvania"
Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.
With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.
In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania. As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....
Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color. Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.
Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.
Among other interesting aspects of this big report is this introductory note about terminology:
Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences. We do this for several reasons. First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with. Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death. Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status. Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.
September 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Office of Inspector General assails how federal Bureau of Prisons manages female prisoners
As reported in this Washington Times piece, "A critical shortage of correctional officers plaguing the nation’s prison system is having a disparate effect on female inmates, a government watchdog said Tuesday." Here is more about the report and reactions to it:
The Justice Department’s inspector general, Michael E. Horowitz, concluded the dearth of trained prison employees is restricting the access of female prisoners to necessary care and services. “The lack of sufficient staff is most noticeable at larger female institutions,” Mr. Horowitz wrote in a report....
The report also concluded that 90 percent of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report....
Kara Gotsch, director of Strategic Initiatives at the Sentencing Project, said she was “not shocked” by the inspector general’s findings. “There is a staffing shortage system-wide,” she said. “But staff shortages are more complicated with women prisoners because it’s compounded when you have male correctional officers in positions where women are required to do the strip searches.”
The inspector general recommended the Bureau of Prisons improve the allocation of staff across the country’s correctional facilities and ensure that all staffers have received proper training. In a response attached to the report, Hugh Hurwitz, acting director for the Federal Bureau of Prisons, said he agrees with the inspector general’s recommendations and vowed to improve both staffing and training. “The BOP will determine the appropriate level of staffing that should be allocated to the Women and Special Populations Branch, based on an analysis of its broad mission and responsibilities,” Mr. Hurwitz wrote.
Ms. Gotsch said the best solution to the issue is sentencing reform to reduce the number of women incarcerated for low-level offenses. “We are putting too many women in prison for low-level offenses for too long,” she said. “There is never enough money in the federal budget to adequately care for prisoners if we have significant overcrowding and maintain these high levels of incarceration.”
The full 60-page OIG report is titled "Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population," and it is available at this link. Here is a paragraph from its introduction:
We concluded that BOP has not been strategic in its management of female inmates. We determined that BOP needs to take additional steps at the Central Office level to ensure that female inmate needs are met at the institution level. Our review identified instances in which BOP’s programming and policy has not fully considered the needs of female inmates, which has made it difficult for inmates to access certain key programs and supplies. Further, while BOP is adhering to federal regulations and BOP policies requiring that only female Correctional Officers conduct strip searches of female inmates, BOP’s method for ensuring compliance with these requirements assigns staff inefficiently. Finally, we found that BOP’s conversion of Federal Correctional Institution (FCI) Danbury to house male inmates negatively affected certain female inmates who had been housed there.
September 18, 2018
The latest argument for "overhauling the [DEA], or even getting rid of it entirely."
Leo Beletsky and Jeremiah Goulka has this new New York Times commentary under the headline "The Federal Agency That Fuels the Opioid Crisis: The Drug Enforcement Administration has proved itself incompetent for decades." Here is how it starts and ends:
Every day, nearly 200 people across the country die from drug overdoses. Opioids have been the primary driver of this calamity: first as prescription painkillers, then heroin and, more recently, illicitly manufactured fentanyl. The death toll has risen steadily over the past two decades.
The Drug Enforcement Administration, the agency that most directly oversees access to opioids, deserves much of the blame for these deaths. Because of its incompetence, the opioid crisis has gone from bad to worse. The solution: overhauling the agency, or even getting rid of it entirely.
The problem begins with poor design. A brainchild of Richard Nixon’s “war on drugs,” the agency sought to cut off supplies of drugs on the black market, here and abroad. But in passing the Controlled Substances Act of 1970, Congress also gave the agency broad authority over how prescription opioids and other controlled substances were classified, produced and distributed. The agency was supposed to curb problematic drug use, but failed to do so because its tactics were never informed by public health or addiction science.
Despite the investment of hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees, the D.E.A.’s track record is abysmal. The agency has been unable to balance legitimate access to and control of prescription drugs. The widespread over-reliance on opioids, along with benzodiazepines, amphetamines and other scheduled medications, has created a booming black market.
The agency’s enforcement strategies, and the support it has lent to local and state police departments, have also fueled abusive police tactics including dangerous no-knock-raids and ethnic profiling of drivers. It has eroded civil liberties through the expansion of warrantless surveillance, and overseen arbitrary seizures of billions of dollars of private property without any clear connection to drug-related crimes. These actions have disproportionately targeted people of color, contributing to disparities in mass incarceration, confiscated property, and collective trauma....
We urgently need to rethink how our nation regulates drugs. What should our goals be? How can we design institutions and performance metrics to achieve them?
The answers lie at the local and state levels. In Rhode Island, opioid overdoses are declining because people behind bars have access to effective treatment. Massachusetts has deployed drop-in centers offering treatment, naloxone and other services. San Francisco and Seattle are planning to open safe consumption spaces which show tremendous promise as a tool to reduce overdose deaths and other drug-related harm. But the D.E.A. and its institutional parent, the Justice Department, stand in the way of some of these experiments.
We ought to reinvent the Drug Enforcement Administration. Considering its lack of public health and health care orientation, the agency’s regulatory authority over the pharmaceutical supply could be transferred to a strengthened and independent Food and Drug Administration, while the regulation of medical and pharmacy practice can be ceded to the states. Parts of the D.E.A.’s law enforcement mandate should be transferred to the F.B.I., delegated back to the local or state, or eliminated. A significant portion of the D.E.A.’s budget should be reinvested in lifesaving measures like access to high-quality treatment.
The Drug Enforcement Administration has had over 40 years to win the war on drugs. Instead its tactics have fueled the opioid crisis. To finally make a dent in this national emergency, we need to rethink the agency from the bottom up.
Perhaps unsurprisingly, the suggestion to consider abolishing DEA is not novel. A quick google search turned up these other recent like-minded commentary (among others):
From The Nation here, "Abolish the Drug Enforcement Administration ... And use the savings to help the poor."
From Salon here, "We need to abolish the DEA: There’s no federal agency that does more harm to the people it serves"
From Vox here, "Why we should abolish ICE — and the DEA too: The failed drug war and Trump’s war on immigrants share many features. To change course, we need to change institutions."
Previewing the two capital punishment administration cases before SCOTUS this fall
Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:
Madison v. Alabama, to be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...
[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”
Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.
In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.
He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....
Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation. The Eighth Circuit said that he did not prove the gas chamber would be better. The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly. A trial court could compare the two descriptions and reach its own conclusion about relative agony. Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....
The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.
The court seems likely to be hostile to prisoners’ claims, however. In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”
September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis"
The title of this post is the title of this exciting event taking place at The Ohio State University Moritz College of Law in Columbus, Ohio at the end of next week. OSU's newly established Drug Enforcement and Policy Center (DEPC) is co-hosting this two-day gathering, and here is the conference description from the full conference agenda:
This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.
The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%. In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329). Ohio is losing nearly 12 citizens each day to a drug overdose.
Responses to the overdose crisis across the nation and within the state have been mixed. There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips. Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one. Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose. Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.
In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment. In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.
September 17, 2018
SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
I am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month. Here it is:
Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state. In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment. Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.
The Court’s decision to hear Gundy’s case came as a major surprise. The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper. At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.
If this occurs, it would be ironic. Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales). Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.
On the merits, Gundy appears to have a strong claim. For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application. With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.
Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide. But they punted, for obvious political reasons. The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.
Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach. Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.
When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role. As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper. Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions. There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991. Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.
Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.” On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether. Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy. Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work. Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.
Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10)
In this post last year following the initial indictment of Paul Manafort in DC District Court on 12 federal criminal counts, I speculated based on the amount of money allegedly involved that Manafort's guideline range, the "starting point and the initial benchmark" for his sentencing, would surely be 10+ years in federal prison. I have just now had a chance to review a copy of Manafort's plea agreement (first discussed here), and I am intrigued to see that it confirms my (too quick) initial guideline assessment.
The full Manafort plea agreement is available at this link, and here is the final guideline range assessment: "Based upon the total offense level and the estimated criminal history category set forth above, the Office calculates your client's estimated Sentencing Guidelines range is 210 months to 262 months' imprisonment." But, of course, while the guidelines call for a range of 17.5+ years of imprisonment for Manafort, he is only in this agreement pleading guilty to two conspiracy counts that each carry a maximum sentence of five years in prison. So his prison sentence for the DC case is functionally capped at 10 years (but he could get more, I believe, at his sentencing in his Virginia case where he was convicted on 8 counts following a full trial).
The reality that his guideline range is 17.5+ years but his sentence is functionally capped t 10 years makes this subsequent (boiler plate?) sentence in the Manafort plea agreement intriguing: "Based upon the information known to the Government at the time of the signing of this Agreement, the parties further agree that a sentence within the Estimated Guidelines Range (or below) would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C. 3553(a), should such a sentence be subject to appellate review notwithstanding the appeal waiver provided below."
Some prior related posts:
- Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment
- Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
- Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
- Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
"What Should the Senate Do With Brett Kavanaugh?"
The title of this post is the title of this new Politico piece which has answers/comments from a number of legal academics. This topic is one surely to roil the legal world this coming week, and the Politico piece sets up why:
In a dramatic turn, Christine Blasey Ford, a professor at Palo Alto University, is accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when they were in high school in suburban Maryland. He has categorically denied the allegation, and Republicans are indicating they intend to move ahead with a confirmation vote scheduled for later this week. Democrats, along with several GOP senators — Jeff Flake of Arizona and Bob Corker of Tennessee — are calling for a pause while the Senate investigates Ford’s story.
I find useful the comment from Ilya Somin to frame some of the criminal law and punishment issues now taking shape as the future of the Supreme Court unfolds. Here is part of his answer to the question above:
The Judiciary Committee should investigate the matter, and potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake. Given that the alleged events in question occurred over 35 years ago, when Kavanaugh was 17 and the accuser 15, getting at the truth may be very difficult, or even impossible. But the committee should at least try.
What should the standard of proof be? A Supreme Court confirmation hearing is very different from a criminal trial, where guilt must be proven beyond a reasonable doubt. Denying a person a lifetime position of vast power on the nation’s highest court is not the same thing as taking away his or her liberty. It is reasonable to set a lower threshold for the former than the latter.
At the same time, it would be a mistake to put nominees in the position of having to definitively prove that accusations leveled against them are false. If that becomes the norm, virtually any nomination could be derailed by unsubstantiated accusations concerning alleged wrongdoing that occurred decades ago. I would thus tentatively suggest that the right standard is that of preponderance of evidence. If the evidence indicates that it is more likely than not that a Supreme Court nominee is guilty of serious wrongdoing, that should be sufficient to reject the nomination.
There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor. But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered. Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.
The situation may change radically if other women come forward with plausible accusations of sexual assault or harassment. Regardless, fair-minded observers should keep an open mind and should encourage the Senate to conduct as unbiased an investigation as possible. Sadly, that may be too much to expect in this era of poisonous partisan bias.
September 16, 2018
Making the case for a bill to end juve LWOP in the federal system
Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:
As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well. And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children. The United States is the only country known to impose life without the possibility of parole on people under the age of 18.
Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system. Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....
Imposing excessive sentences on children ignores what adolescent development research has documented. And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children. The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature. Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.
Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison. They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance. HR 6011 holds children accountable while providing a reason to pursue self-betterment. It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....
We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system. Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.
"A Defense of Modern Risk-Based Sentencing"
The title of this post is the title of this new paper authored by Christopher Slobogin now available via SSRN. Here is its abstract:
In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.
Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.