February 10, 2018
"Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing"
Across the country, from New Jersey to Texas to California, bail reform is being debated, implemented, and litigated at the state and local levels. Lawmakers and the public are learning that cash bail is excessive, discriminatory, and costly for taxpayers and communities. With promises to replace judicial instincts with validated algorithms and to reserve detention for high-risk defendants, risk assessment tools have become a hallmark of contemporary pretrial reform. Risk assessment tools have proliferated despite substantial criticisms that the tools depend upon and reinforce racially biased data and that the tools’ accuracy is overblown or unknown. Part I of this Note examines contemporary bail practices, recent reforms, and risk assessments’ promises and shortcomings. Part II discusses federal sentencing reform, which originally sought a more empirical approach to criminal justice but failed. Part III applies the lesson of sentencing reform to bail reform today. Despite endorsing empirical tools, legislatures are prone to interfering with the evidence that informs those tools or with the tools themselves. Even after reforms, system actors retain misaligned incentives to incarcerate too many people. Technocratic instruments like risk assessments may obscure but cannot answer tough, fundamental questions of system design. But recent pretrial reforms have shown early signs of progress. If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.
Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?
In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation." This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:
A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies. Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks. She was ordered to pay $15,246 in restitution.
Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment. Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."
In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant. He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."
Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country. Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison. The unusual order — first reported by The Oklahoman — attracted national and international attention. The judge has been both praised and condemned.
"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination." The judge Thursday did not directly comment on the public criticism.
He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."
The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.
Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said. She pleaded guilty last year to one federal counterfeiting offense. She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.
She has prior theft and counterfeit check convictions in county courts but always received probation. She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.
She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....
"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.
This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:
If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make. The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized. She will receive a shorter sentence because she made that decision. But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue. Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.
Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.
As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence.
I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress. But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior. The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.
That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here. But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.
Prior related post:
February 10, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (4)
New Utah death penalty study may add momentum to repeal efforts
This local article, headlined "New study of Utah’s use of the death penalty suggests life without parole costs less, prompts another call to abolish capital punishment," reports on a new report which could help jump start efforts to abolish the death penalty in the Beehive State. Here are the details and some context:
A group of Utah attorneys, advocates and state staff have spent the last year studying the state’s death penalty. The working group, created by Utah’s Commission on Criminal and Juvenile Justice, examined several areas, including costs, aggravating factors and public attitude. The CCJJ report, released Friday [and available here], noted there were “fundamental difficulties inherent in analyzing death penalty policy.” The group did not make any recommendations or proposed changes to Utah’s current capital punishment system.
But a group called Utah Conservatives Concerned about the Death Penalty said the report shows that a significant amount of money has been spent seeking death sentences without much in return. They called on lawmakers to abolish capital punishment in Utah. “This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible,” director Kevin Greene said in a statement. “... The millions of dollars that we have been wasting on the death penalty should either be returned to the taxpayers in the form of a tax cut or used for crime prevention or to help victims of crime.”
Here’s what the study found:
Cost estimates for the price of the death penalty in Utah are limited, the group noted. Legislative analysts in 2012 estimated that a death sentence and decades of appeals costs $1.6 million more than a life-without-parole sentence. Another more recent report estimated that Utah and its counties have spent almost $40 million to prosecute the 165 death-penalty eligible cases that have been filed in the last two decades. Only two cases in that time have resulted in a death sentence....
Utah currently has over 60 aggravating factors in the homicide law that allow prosecutors to seek the death penalty — and state lawmakers are contemplating adding even more. At a recent legislative hearing, some expressed concern that Utah may have too many crimes that qualify for the death penalty, and that an appeals court could torpedo the capital punishment law for being too broad. In the CCJJ report, the group noted that they could not come to an agreement about whether the number of aggravating factors should be limited. They noted that most states rarely remove aggravating factors — and instead have been adding more through the years.
The working group looked at several polls about Utahns’ attitude toward the death penalty, noting that there have been conflicting results. Two polls showed Utahns support the death penalty, while two others showed less support for execution in favor of life-without-parole sentences. The group concluded it was “probably reasonable to suggest simply that public support for the death penalty in Utah is declining over previous highs.”
Utah legislators came close to outlawing the death penalty in 2016 — but the bill never reached the House floor before the midnight deadline on the last night of session. Criminal justice reforms groups have said another push to end capital punishment in Utah is likely during this legislative session — though a bill to abolish it has not yet been public.
Since 2010, Utah prosecutors have filed 119 aggravated murder cases, according to Utah court data. Such cases can result in punishments of 25 years to life, life in prison without the possibility of parole, or death. Only one of those cases — a retrial of a 1993 case — resulted in a death sentence.
Of the nine men currently on Utah’s death row, two were originally convicted as long ago as 1985. All but one of the rest were convicted before 1999, although one case was retried in 2015 and resulted in a second capital murder conviction. All nine have ongoing appeals underway in state or federal court.
The last execution was carried out in 2010, when Ronnie Lee Gardner was executed by firing squad for the 1984 murder of Michael Burdell, a Salt Lake City lawyer, during Gardner’s failed escape attempt from the 3rd District courthouse.
Notably, in the not too distant past, a significant number of states abolished the death penalty formally or functionally. As reflected in this DPIC page, from 2007 through 2013, New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland became abolitionist states. Since 2013, the only significant legislative action on this front took place in Nebraska; but the death penalty repeal passed by state senators in 2015 was rejected by voters in a 2016 referendum. In light of this recent history, I think it would be a pretty big deal if abolition efforts picked up steam in Utah.
Highlighting how mandatory minimums can distort pretrial procedures and practices
LawProf Jeff Bellin his week had this effective Slate commentary on a notable recent Second Circuit ruling. The Second Circuit in US v. Tigano, available here, found the defendant's Sixth Amendment right to a speedy trial was violated by almost seven years of pretrial detention. Bellin's piece, headlined "Waiting for Justice: One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts," spotlights how mandatory minimum sentencing statutes lurked below this (not-so) remarkable case. Here are excerpts:
Tigano’s case fits a familiar narrative of clogged courts and bureaucratic indifference. But there is one important complication coverage has overlooked. While the appeals court and subsequent media portrayals suggest that prompt trials are the solution to cases like Tigano’s, the real fix is long-delayed, bipartisan sentencing reform. That is because the problem in Tigano’s case was not neglect, but a 20-year mandatory-minimum sentence that loomed over every decision in the case.
Tigano’s case was no Agatha Christie mystery. Federal agents found 1,400 marijuana plants growing in Tigano’s residence. What’s more, three separate agents testified that Tigano confessed that he grew the marijuana. That’s a tough case to fight. He was going to lose at trial, it seemed, and he was going to lose big. While many states are lining up to cash in on marijuana legalization, federal law still dictates that a person who grows “1,000 or more [marijuana] plants … shall be sentenced to a term of imprisonment which may not be less than 10 years.” That’s a 10-year mandatory prison term for growing marijuana — doubled for anyone, like Tigano, with a prior felony drug conviction.
That is why the attorneys and lower court judges in Tigano’s case overlooked the speedy trial rule. They were not neglecting Tigano. They were, instead, repeatedly delaying his case — to the point of ordering three needless mental competency examinations — in the hope that Tigano would agree to a plea deal. With 20 years on the horizon, everyone, including Tigano’s own attorneys, could put up with an otherwise unconscionable delay that would ultimately be deducted from his eventual sentence.
Tigano, however, insisted on his constitutional right to a trial. After seven years, he finally got it. There were no surprises. The jury convicted and the judge sentenced him to 20 years in federal prison. Of course, no one expected the final twist. On appeal, the lengthy pretrial delay set Tigano free....
The appeals court’s opinion says that “no single, extraordinary factor caused the cumulative seven years of pretrial delay.” That’s wrong. The 20-year mandatory sentence for growing marijuana ignited all the chaos in Tigano’s case. That’s the dirty secret about mandatory minimums: They don’t just lead to unjust sentences; they distort proceedings in countless cases where they are never imposed. Most alarmingly, harsh mandatory sentences pressure even innocent people to plead guilty to avoid long prison sentences. And for the bold few who still go to trial, like Tigano, these laws prevent judges from imposing fair sentences....
Mandatory minimums don’t just ensure harsh, often disproportionate sentences. They also cause massive distortions in the criminal justice system, leaving it a pale shadow of this nation’s ideals.
February 9, 2018
Lamenting latest data on how federal Bureau of Prisons administers its compassionate release program
This new press release from Families Against Mandatory Minimums, headlined "New Data Reveals BOP Still Neglecting Compassionate Release," reports on the release of new data about a notable piece of federal prison law and administration. Here is much of the full release (with links from the original):
FAMM (Families Against Mandatory Minimums) President Kevin Ring today commented on the release of new data related to the Federal Bureau of Prisons’ (BOP) compassionate release program. Last August, 12 U.S. senators wrote to the BOP seeking information on the number of individuals who were granted early release pursuant to the program. In its response dated January 16, the BOP revealed that the agency has granted a mere 306 petitions while denying more than 2,400 over the past four years. Prisoners facing unimaginable circumstances wait an average of 4.7 to 6.5 months for a response, and 81 prisoners died while waiting for an answer.
“We are disappointed but not surprised,” Ring said. “Even as interest in prison reform grows, we find that the BOP is not using its authority to reduce the number of low-risk, high-cost individuals in federal prisons. This failure hurts families and taxpayers without improving public safety.
“The fact that 81 individuals died waiting for a response to their petitions for compassionate release is a moral outrage. We as a country can do better than this. Congress should act now to streamline the process and inject some common sense and dignity to this program,” Ring said.
FAMM has been a longtime advocate for expanding federal and state compassionate release programs, which authorize early release for prisoners facing extreme circumstances, such as a terminal or age-related illness. Last year, FAMM helped to establish the Campaign for Compassionate Release, a coalition of diverse organizations who support the creation, expansion, and robust use of compassionate release.
February 8, 2018
Should (encouraged!?!) sterilization be a permissible federal sentencing factor in mitigation?
The question in the title of this post is prompted by a remarkable federal sentencing story out of Oklahoma reported in this local article headlined "Woman underwent sterilization procedure at judge’s suggestion." Here are the details:
At a judge's suggestion, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children.
Summer Thyme Creel, 34, had the elective procedure in November after the judge wrote he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday in Oklahoma City federal court.
U.S. District Judge Stephen Friot made the unusual suggestion in an order last June. He noted in the order Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. "I spoke with her in detail about it and she voluntarily wanted to do it," her court-appointed defense attorney, Brett Behenna, said.
A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. "Creel not only has a fundamental constitutional right to procreate ... but she admits that she had an interest in an elective sterilization procedure even before the court's order of June 16," Assistant U.S. Attorney Jessica Perry told the judge in a sentencing memo.
"Furthermore, Creel's decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence," the prosecutor wrote.
Creel has a lengthy criminal record involving theft and counterfeit check crimes. She is listed in court records over the last two years at addresses in Oklahoma City, Checotah and Lawton. She was charged for the first time in federal court in 2016. A federal grand jury alleged she and others participated in a counterfeit ring that relied on mail stolen from mailboxes.
Creel pleaded guilty a year ago to a single count in the indictment for using a $202.22 counterfeit check at a Walmart in Moore in 2014. Her sentencing has been delayed for a number of reasons, the first time because she couldn't show up in court. She was in the Oklahoma County jail for using a counterfeit check at a Hobby Lobby in Midwest City....
In delaying the sentence the first time, the judge made note of both Creel's criminal past and her history as a mother. "By virtue of a series of relationships with various sires over approximately the last 14 years, Ms. Creel has given birth to seven children out of wedlock," the judge wrote in the June order.
"Comparing the dates of Ms. Creel's periods of habitual use of crack cocaine and methamphetamine ... with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel's children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances," the judge wrote.
"It comes as no surprise, therefore, that, in 2012, Ms. Creel relinquished her parental rights with respect to six of her seven children 'after an Oklahoma Department of Human Services investigation for failure to protect the children from harm.' Her seventh child was born in 2016," the judge wrote.
The judge then pointed out he can consider at sentencing any information concerning the background, character and conduct of an offender. Finally, he told Creel in his order that at her sentencing she "may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation."
The June order referenced in this story, which runs only two pages, can be accessed at this link. It closes by noting that Congress has provided via 18 U,S.C § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I am inclined also to note that in 18 U.S.C § 3553(a)(1) Congress ordered federal judges to consider "the history and characteristics of the defendant" at sentencing. So there is certainly a statutory basis for Judge Friot to defend his approach to Ms. Creel's case. I am eager to hear readers' thoughts as to whether Judge Friot's approach is sound and wise even if it may be statutorily defensible.
February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)
Brennan Center releases report on "Criminal Justice One Year Into the Trump Administration"
As detailed in this press release, the Brennan Center for Justice at NYU School of Law has produced this new report about federal criminal justice developments in the first year of the Trump era. Here is an overview via the press release:
Criminal Justice One Year Into the Trump Administration examines how the executive branch has used memoranda or more subtle changes in enforcement strategy to reverse Obama-era reforms and implement a more draconian law enforcement strategy. Their efforts threaten to increase the federal prison population and disrupt state and local movements for reform that have broad, bipartisan backing.
“From day one at the Inauguration podium, Trump immediately shifted how federal officials talk about criminal justice issues,” said Inimai Chettiar, the director of the Brennan Center’s Justice Program. “He has sounded false alarms about rising crime nationwide and wrongly linked immigration to both this phantom increase and the opioid crisis. He preys on people’s fears to try to justify these ineffective and overreaching policies from his administration.”
Researchers note that:
The administration’s changes to policy have so far focused on increasing aggressive prosecutorial practices, changing federal drug enforcement policy, decreasing oversight of problematic police practices, and resurrecting rhetoric around fear of crime.
In fiscal year 2017, arrests by Immigration and Customs Enforcement officials rose by more than 30 percent. Arrests of individuals with no criminal conviction increased 146 percent from fiscal year 2016. ICE increased its use of detainers, or requests that local law enforcement hold someone in custody and hand them over to federal law enforcement authorities, by 65 percent. And, the number of detainers that local law enforcement declined to honor also rose.
Opioid deaths are expected to rise in 2017 and surpass the record of nearly 50,000 deaths in 2016.
The White House is poised to support federal legislation that improves formerly incarcerated individuals’ reentry into society, but has not made a commitment to back federal sentencing reform efforts with bipartisan support.
“In some areas the effects of Trump’s changes to policy are not yet clear,” said Ames Grawert, counsel in the Brennan Center’s Justice Program. “But that is not the case when it comes to immigration. Under his tenure, more people are entering ICE’s system and fewer are leaving it. The Department of Homeland Security expects the daily population in immigration detention centers will increase by 25 percent. That will not only have significant impact on the lives of the individuals put behind bars, but on the nation’s criminal justice system as a whole.”
Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter
In this post last week, I asked via the post title "Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?". This question was prompted by the release of a letter from a a former juror in an Ohio capital case urging Governor John Kasich to grant a reprieve based on mitigating evidence that he said he had neverand that would have changed his vote at the penalty phase.
Today I just learned of a partial answer to my question in this new press report headlined "Kasich issues temporary reprieve for condemed killer." Here are the interesting details:
Gov. John Kasich on Thursday issued a temporary reprieve for Raymond Tibbetts, a Cincinnati man who was scheduled to be executed Tuesday.
“Kasich issued the reprieve in light of a letter he received on January 30 from a juror on Tibbetts’ case,” a statement from the governor’s office said. “Because the Ohio Parole Board issued its report and recommendation without considering the letter, Kasich has asked the board to convene a hearing for the purpose of considering the letter and the issue it raises.”
In his letter, the juror said that he would not have voted 20 years ago to execute Tibbetts, who killed his wife and an elderly man, if he’d known the extent to which Tibbetts was abused as a child.
Kasich reset the execution for Oct. 17.
Hamilton County Prosecutor Joe Deters, whose office sought a death sentence for Tibbetts, said he understands the governor's decision to delay, but he believes the original sentence should stand.
"It's pretty serious business when you're going to execute someone," Deters said. "It's frustrating for a lot of people, but the reality is this: If the governor has questions, it's his job to stop it.
"Would I have done something different? Maybe. But I don't know what he knows, and he's the governor."
"Mass Incarceration and Its Discontents"
The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology. Here is how the essay gets started:
The contours of mass incarceration are, by now, broadly familiar. The U.S. incarceration rate began an unprecedented ascent in the 1970s. This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016). The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015). By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).
The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research. A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion. Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color. Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction. And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.
Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform. Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted. The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts. In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact. In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.
Reviewing how crime and punishment (but not AG Sessions' approaches) have changed in recent decades
Over at FiveThirtyEight, Amelia Thomson-DeVeaux has this extended piece that is a kind of retrospective on the evolution of crime and punishment in the US over the last 30 years, with a particular focus on the perspectives of AG Sessions. The piece is headlined "Jeff Sessions Is Trying To Take Criminal Justice Back To The 1990s," and here is how it gets started:
Thursday is the first anniversary of Jeff Sessions’s confirmation as attorney general. Over the past year, he has announced that he would seek to increase the use of the federal death penalty; reversed a series of Obama-era memos that instructed federal prosecutors not to go after the marijuana industry in the states that have legalized it; and directed prosecutors to slap drug suspects with the most serious charge they can prove.
None of these policies would have seemed out of place 30 years ago. And, in fact, it’s clear that Sessions has set his sights on returning the country’s criminal justice system to the days of harsh penalties for crime and hardline drug laws. The problem: A lot has changed over the last three decades — in particular, crime and our understanding of how to fight it.
Thirty years ago, there were open-air drug markets in big cities from New York to Los Angeles, residents of those cities were robbed or even killed on public transportation, and the murder rate was near its all-time high. At the crest of the crime wave, harsher penalties for criminals like mandatory minimum sentences and expanded use of the death penalty seemed like a reasonable response to a devastating national crisis, and most Americans supported them.
But today, the crime rate is much lower than in the 1990s, and Sessions’s policies are out of step with most public opinion. Moreover, many criminologists view his strategy as a throwback that’s unlikely to significantly curb violence or drug crime.
That’s because since these policies were implemented, decades of social science research has led experts like David Kennedy, a professor of criminal justice at the John Jay College of Criminal Justice in New York City, to conclude that they don’t work well enough to justify their cost. “The evidence shows that they’re expensive, there’s enormous human damage, and they’re not actually effective in deterring crime,” he said.
Sessions has long established himself as a hard-liner on criminal justice issues: As Alabama’s attorney general, he proposed a crime bill that would have made the death penalty mandatory for a second conviction for drug trafficking. As the U.S. attorney general, he’s billed his new policies as a rejection of the “soft” strategies on crime that characterized the Obama administration, arguing that capital punishment and long sentences deter criminals and that pot is a “gateway drug” for harder substances and addiction.
There’s no question that crime did start to drop precipitously during the era of harsher penalties. And in 2010, the homicide rate hit a four-decade low, according to the Bureau of Justice Statistics. Though most experts agree that the harsher strategies alone can’t explain the decline, there’s still no consensus about why the crime rate started to drop three decades ago. Scholars do note that it was already falling before many tough-on-crime measures were widely introduced, and they have offered theories from improved policing to the roaring economic growth of the 1990s to explain the change.
Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, said Sessions deserves some credit for calling attention to the recent uptick in the murder rate, which rose for the second consecutive year in 2016 after a 25-year decline. But Rosenfeld, who studies the causes behind crime rate shifts, and other mainstream criminal justice experts reject the notion that the Obama-era criminal justice reforms, like the decision not to pursue mandatory minimum sentences for low-level drug offenders, caused an increase in violent crime. Instead, Rosenfeld blames the increased violence in part on the drug market, with more demand for heroin because of the opioid epidemic. Rosenfeld also said that tensions between African-American communities and the police could be a factor.
And there’s even debate about whether the violent crime rate — as opposed to just the murder rate — is actually increasing. With a criminal justice outlook that seems more suited to the 1990s than today, Sessions finds himself implementing policies on sentencing, capital punishment and drug enforcement — particularly marijuana — that are out of sync with much of the country.
February 7, 2018
Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting
A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary. After a long list on nominees, we see on that agenda this item:
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)
I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal. Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:
Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."
Sec. 102. Broadening of existing safety valve....
Sec. 106. Mandatory minimum sentences for domestic violence offenses....
Sec. 108. Inventory of Federal criminal offenses.
Sec. 109. Fentanyl.
And "TITLE II — CORRECTIONS ACT" includes, inter alia:
Sec. 202. Recidivism reduction programming and productive activities.
Sec. 203. Post-sentencing risk and needs assessment system....
Sec. 207. Promoting successful reentry.
Sec. 208. Parole for juveniles.
Sec. 209. Compassionate release initiative.
And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.
I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.
February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)
Two notable and timely commentaries on prison reform
A couple of columns about prison reform caught my attention today. Here are headlines, links and excerpts:
From The Advocate, authored by Mark Holden and Brooke Rollins, "Ways to help failing prison system":
We are proud to be part of a new initiative, Safe Streets and Second Chances, which will work to combine policy reforms and evidence-based re-entry programs that will measure success not by incarceration rates but by whether former inmates are rehabilitated and capable of redemption. Researchers will initially examine four states — Louisiana, Florida, Pennsylvania and Texas — and work to prepare people for re-entry beginning on day one of their prison sentence, and have an individualized plan in place within two months of incarceration.
The numbers indicate the scope of the challenge. More than three out of four former inmates return to prison within five years of release, according to the Bureau of Justice Statistics. That is a moral crime and a fiscal disaster. And, worst of all, it is an unforgivable waste of human potential. Nationally, more than 600,000 former inmates re-enter society every year. More than 100,000 of those are in our four targeted states.
Safe Streets and Second Chances will work with states to institute substance abuse and psychiatric counseling for individuals with mental illnesses or drug addictions; educational and literacy programs; vocational programs that teach usable job skills, and mentoring capabilities. Such programs should involve faith leaders and public-private partnerships, so the comparative advantages of these sectors can be brought to bear on the rehabilitation and redemption of individuals. Emphasis on punishment rather than rehabilitation is costly — $80 billion a year for incarceration at last count, and an even higher cost in the diminution of the human spirit.
The system traps individuals in a soul-crushing cycle of poverty and prison, while doing next to nothing to make our streets safer. Proposals to address these challenges are not pie-in-sky do-gooderism. They are a clear-eyed assessment based on evidence and experience. In 2007, Texas projected it would need 17,000 new prison beds over the next five years. After implementing these and many other reforms, including expanded drug courts and mental health programs, crime dropped 31 percent — to levels not seen since the 1960s. Texas closed four prisons with plans to close four more, and saved $3 billion in the process.
South Carolina enacted similar reforms and cut its prison population by 14 percent, closed six prisons and saved $491 million . Other states have seen the results and are instituting programs focusing on education and training that are showing success in rehabilitating individuals and reducing recidivism. If three out of four patients were dying in our hospitals, or three out of four combat soldiers were ill-prepared to face the enemy, we’d do something about it. I n a hurry.
Three out of four people in jail today will probably be back there if we don’t do something about it. In a hurry.
From USA Today, authored by Francis Cullen and Erik Luna, "Evaluate corrections officials not just on the state of prisons, but on rate of recidivism":
Nearly 9 in 10 Americans agree it is important to try to rehabilitate those who have committed crimes and are in the correctional system. The public also demonstrates high support for formal “rehabilitation ceremonies” that would restore full citizenship to offenders who completed treatment programs, apologized and stayed crime-free for several years. A growing readiness exists to reinvent corrections. Bold thinking and experimentation are needed. And that experimental approach could appeal to criminal justice reformers and hard-line supporters of harsher sentencing alike. Attorney General Jeff Sessions, who has touted a return to "law and order" crackdowns, is right to be concerned about "a vicious cycle of crime, poverty and more crime." But activists who believe in rehabilitation also support "smarter policies based on sound research."
So, how can prisons be improved? Here are three general ideas:
► Corrections officials should be evaluated more diligently not just on their ability to manage institutions but also to reform the inmates who are in them, and that must include inmates who have re-entered society and recidivated. There's an expectation that wardens will maintain peace within their prisons. They are held responsible if, for example, a riot breaks out. Some aspects of police reform occurred because, among other things, law enforcement leadership was made responsible not only for solving cases but also for reducing crime. Officials must be held equally responsible for recidivism rates.
► Prisons must be regarded as behavioral-change institutions, not warehouses for wrongdoers. Being nasty to offenders by, for instance, exposing them to harsh prison conditions risks making them more criminal. Prisons must be therapeutic and focus on rehabilitation. This does not mean going easy on offenders, but instead insisting that they learn pro-social values and how to act responsibly. Rehabilitative interventions require inmates to engage in the difficult work of changing their thinking and behavior.
► Corrections must become a true science. If medical standards were applied, many correctional practices and programs would be seen as quackery worthy of malpractice lawsuits. Evidence suggests that a therapeutic or human-service approach to corrections is most likely to reduce recidivism by helping offenders acquire the cognitive abilities, problem-solving and coping skills, and human capital needed to overcome the deficits that place them at risk of criminal conduct in the first place. Sustained research is required — as is done in medicine — to give correctional workers more and better tools for inmate rehabilitation.
"Event dependence in U.S. executions"
The title of this post is the title of this new empirical paper authored by Frank Baumgartner, Janet M. Box-Steffensmeier and Benjamin Campbell. Here is the abstract:
Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties. The number of executions across counties appears to fit a stretched distribution. These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event. To examine these processes, we employ two-pronged empirical strategy. First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model.
Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing. Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently. This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.
AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General
Last night, Attorney General Jeff Sessions delivered this extended speech at the Reagan Alumni Association's Celebration of President Reagan's Birthday. I recommend the full text as a window into how the current AG thinks about and approaches various law enforcement issues, and here are some highlights that ought to interest sentencing fans:
[President Reagan] was elected to stop the dramatic rise in crime that arose after the Great Society. The violent crime rate tripled from 1964 to 1980. Robbery tripled. Rape tripled. Aggravated assault nearly tripled. Murder doubled. The people were not happy. Personal safety was a huge issue. The last liberal, as was said, was mugged.
By 1980, judicial activism looked triumphant. It was praised as a virtue and not a vice. Originalism seemed to have gone the way of the Dodo.
Ronald Reagan was elected to fix this situation. He was the law & order candidate — that’s for sure. It was not Jimmy Carter. Nixon had run on law and order successfully.
President Reagan promised change and he delivered. His achievements with regard to legal reform are nothing short of remarkable. They have not been fully appreciated....
President Reagan was a strong leader and a good boss. There was never any doubt about what he expected from us. And I drew a lesson from that: a strong leader is one who makes his expectations simple and clear. When I became a United States Attorney, I told my staff, “I know why Ronald Reagan put me here: to put crooks in jail and to protect the treasury.”
We took on violent crime, drug dealers, the Miami cocaine cowboys, the mafia, government corruption, waste fraud, and abuse in government programs.
President Reagan signed into law a number of legal reforms that empowered the law enforcement effort. There was the elimination of parole, the issuing of sentencing guidelines and mandatory minimum sentences in certain cases, the elimination of bail on appeal, and increased bail for dangerous criminals before trial. We increased the DEA, FBI, ATF, and federal prosecutors. Many states followed Reagan’s leadership.
I was a prosecutor before these laws went into effect and I was a prosecutor after these laws went into effect. I can tell you firsthand that they were transformational. These were the biggest changes in law enforcement since the founding of this country. These laws were critical to re-establishing law and order.
When a criminal knows with certainty that he is facing hard time, he is a lot more willing to cooperate. When the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance. The certainty of a significant sentence does, in fact, have a deterrent effect. And the recidivist can’t commit his crimes if he is in the slammer.
We got tough about drug abuse because — as surely as night follows day — violence, addiction and death follow drug activity. And those who were put in jail in the mid-to-late 1980s could not commit crimes in the 1990s, which is when the steep decline in crime became most apparent.
I mentioned how dire the situation was in 1980. That was before Reagan. After the changes that we made were put in place, from 1991 to 2014, the violent crime rate was cut in half. So were the murder rate and the robbery rate. Aggravated assault was cut by 47 percent, and rape was cut by more than one third. These are remarkable achievements that made this country a better place. So when I look up at my portrait of Ed Meese on the wall of my conference room, that’s what I think about. And that example inspires the work that we do every day.
Under President Trump, we are determined to advance President Reagan’s work of restoring the rule of law. President Trump sent us an order to support our men and women in blue and to “reduce” crime in America. We embrace that goal and intend to achieve it. Of course, the anti-crime effort often goes unnoticed no matter how important....
We are hammering violent groups — especially the vicious MS-13.
We are not going to pretend that there is not a law against marijuana, or that it’s not bad for you....
We don’t think illegal drug use is “recreation”. Lax enforcement, permissive rhetoric, and the media have undermined the essential need to say no to drug use — don’t start. And we are identifying pill mill doctors and sending large members to the slammer.
We have taken many other steps to restore the rule of law at the Department. But I’ll be the first to acknowledge that we still have work to do. There have been some very sharp criticisms about the Department. I hear these criticisms and welcome the discussion. Sunlight truly is the best disinfectant. We will not ignore these problems or hide our heads in the sand.
Much of what we are doing is behind the scenes — matters I can’t discuss publicly. I’m sure that you can understand why. We will also make sure that all our employees are treated fairly.
February 6, 2018
ABA House of Delegates enacts resolution urging prohibition of death penalty's application to those under 21
As reported in this ABA Journal posting, the "ABA House of Delegates on Monday asked all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger." Here is more:
In the report accompanying the resolution, the chairs of the Death Penalty Due Process Review Project and the Section of Civil Rights and Social Justice wrote: “In light of this evolution of both the scientific and legal understanding surrounding young criminal defendants and broader changes to the death penalty landscape, it is now time for the ABA to revise its dated position and support the exclusion of individuals who were 21 years old or younger at the time of their crime.”
The language of Resolution 111 makes clear that the ABA is not taking a position “supporting or opposing the death penalty.”
In a motion to amend, Robert L. Weinberg, a past president of the District of Columbia Bar and the Bar Association of the District of Columbia, proposed removing that language. He brought up a CLE session held earlier during this midyear meeting by Cassandra Stubbs of the ACLU Capital Punishment Project. “We stand almost alone among the progressive democracies in adhering to capital punishment,” he said....
Michael Byowitz, the Board of Governors’ liaison to the Death Penalty Due Process Review Project, rose to speak in opposition to Weinberg’s amendment.... Byowitz said marginal efforts chipping away at the use of the death penalty are the most effective ways of addressing the problem. “We will be ignored if we are perceived in many of the councils that matter as against the death penalty,” he said. “Let’s not let the perfect be the enemy of the good.”...
The amendment was defeated in a divided vote. Resolution 111 was passed overwhelmingly.
The full Resolution and Report can be accessed at this link. The report runs a dozen pages and concludes this way:
In the decades since the ABA adopted its policy opposing capital punishment for individuals under the age of 18, legal, scientific and societial developments strip the continued application of the death penalty against individuals in late adolescence of its moral or constitutional justification. The rationale supporting the bans on executing either juveniles, as advanced in Roper v. Simmons, or individuals with intellectual disabilities, as set forth in Atkins v. Virginia, also apply to offenders who are 21 years old or younger when they commit their crimes. Thus, this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders.
In adopting this revised position, the ABA still acknowledges the need to impose serious and severe punishment on these individuals when they take the life of another person. Yet at the same time, this policy makes clear our recognition that individuals in late adolescence, in light of their ongoing neurological development, are not among the worst of the worst offenders, for whom the death penalty must be reserved.
Advocating for postpartum mental illness to be an express mitigating sentencing factor
The Hill has this notable new sentencing commentary authored by doctors Katherine Wisner and Cara Angelotta headlined "Accounting for postpartum depression in criminal sentencing is the right move." Here are excerpts:
A new Illinois law is set to take effect this summer that will specifically address the legal culpability of women who commit criminal acts during episodes of severe postpartum mental illness. This is the first law of its kind in the U.S., and as perinatal and forensic psychiatrists, we applaud this legislation and urge other states to follow.
This new law takes the unprecedented step of specifically highlighting postpartum mental illness as a potential mitigating factor for judges to consider in determining an appropriate punishment for a crime.
Once enacted, the state law will allow women who were convicted of a felony, but who did not have evidence of postpartum mental illness presented at their trial or sentencing, to apply for post-conviction sentence reduction. Practically, this means that women in prison for crimes that were directly related to symptoms of undiagnosed or untreated postpartum mental illness now have a legal mechanism to apply to the courts for a lesser sentence.
The law provides hope for the possibility of treatment, rather than punishment, for women who were convicted without consideration of the devastating effects of postpartum mental illness on behavior.
This legislation is in line with the longstanding Infanticide Act of 1938 in the United Kingdom, which limits the charge for killing an infant to manslaughter, not murder, if the act occurred when the woman’s “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”...
The Illinois legislation is unique because it creates a legal definition of postpartum mental illness. Postpartum depression was defined in the law’s text as "a mood disorder which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.”...
To be sure, we all have strong emotional reactions to the injury or killing of an infant by a mentally ill mother. The criminal acts in this law apply to forcible felonies, which involve violence or the threat of physical force or violence to any individual, not only the infant but other family members or strangers. But, coupled with the miracle of new life comes the risk for multiple maternal complications, including mental illness, anemia, nausea and vomiting, hypertension, gestational diabetes, excess weight gain, pregnancy loss, cesarean delivery and anesthesia complications.
Perinatal mood and anxiety disorders are associated with increased risks of maternal and infant mortality and morbidity and are recognized as a significant maternal safety issue. The pregnancy-related death rate in the United States has steadily increased across the past three decades — evidence of another risk pregnant women face....
This law specifically identified perinatal (occurring during pregnancy or postpartum) psychiatric disorders as mitigating factors. We urge support for legislation that incorporates both pregnancy and childbirth and their complications as mitigating factors in crimes committed during postpartum mental disorders in all states.
Prez Trump trumpets again his interest in getting "really, really tough, really mean with the drug pushers and the drug dealers"
As noted in this prior post, Prez Trump last week in his State of the Union address spoke about "reforming our prisons" and the need to "get much tougher on drug dealers." The first comment, coming on the heels of other prison reform talk, has garnered the most attention among criminal justice reform advocates. But the second comment ought also get some attention, especially because Ronald Bailey has highlighted at Reason that Prez Trump doubled-down on these comments this week.
This Reason commentary, headlined "Trump Wants Us 'To Get Really, Really Tough, Really Mean with the Drug Pushers': Doubling down on a drug war that has failed for 40 years," take a critical look at what the President is saying. Here is how is starts (with links from the original):
What's the best way to address the national problem of opioid abuse and overdose deaths? "My take," President Donald Trump declared in Ohio yesterday, "is you have to get really, really tough, really mean with the drug pushers and the drug dealers. We can do all the blue ribbon committees we want—[applause]—we have to get a lot tougher than we are."
The president's dismissal of blue ribbon commissions is somewhat perplexing, since he ordered that one be created just last March—the President's Commission on Combating Drug Addiction and the Opioid Crisis. In any case, the president is evidently eager to rev up the war on drugs.
What might the president mean by getting really tough on drug pushers? One clue might be his phone call to Philippines President Rodrigo Duterte last April. "I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem," Trump said. "Many countries have the problem, we have a problem, but what a great job you are doing and I just wanted to call and tell you that."
As big a blustering blowhard as our president is, I trust that he is not actually contemplating Duterte-style extrajudicial killings when he says "we have to get a lot tougher than we are." Nevertheless, it is clear that the president has learned nothing from the failures of the war on drugs. Over the past four decades, the government has spent more than trillion dollars, locked up millions of Americans, and undermined our civil liberties, especially our Fourth Amendment protections against search and seizure, to stop the drug trade. Despite all the resources wasted and lives lost, the prices of illicit drugs have generally declined.
Prohibitionists claim that the drug war has reduced drug-related crime, decreased drug-related disease and overdose, and disrupted and dismantled organized criminal enterprises. But in a paper last year for the Cato Institute, George Mason University economists Christopher Coyne and Abigail Hall show that "prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels."
"The Fatal Flaw in John R. Lott Jr.’s Study on Illegal Immigrant Crime in Arizona"
A few weeks ago, I posted here a link to an empirical study authored by John Lott titled "Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona." Today I saw this posting at Cato responding to Lott's study authored by Alex Nowrasteh under the title that is the title of this post. The response claims that Lott misinterpreted the most important variable in his study, and it starts and ends this way (with links from the original):
Economist John R. Lott Jr. of the Crime Prevention Research Center released a working paper in which he purports to find that illegal immigrants in Arizona from 1985 through 2017 have a far higher prison admissions rate than U.S. citizens. Media from Fox News to the Washington Times and the Arizona Republic have reported on Lott’s claims while Attorney General Jeff Sessions and Representative Paul Gosar (R-AZ) have echoed them from their positions of authority. However, Lott made a small but fatal error that undermines his finding.
Lott wrote his paper based on a dataset he obtained from the Arizona Department of Corrections (ADC) that lists all admitted prisoners in the state of Arizona from 1985 to 2017. According to Lott, the data allowed him to identify “whether they [the prisoners] are illegal or legal residents.” This is where Lott made his small error: The dataset does not allow him or anybody else to identify illegal immigrants.
The variable that Lott focused on is “CITIZEN.” That variable is broken down into seven categories. Lott erroneously assumed that the third category, called “non-US citizen and deportable,” only counted illegal immigrants. That is not true, non-US citizen and deportable immigrants are not all illegal immigrants. A significant proportion of non-U.S. citizens who are deported every year are legal immigrants who violate the terms of their visas in one way or the other, frequently by committing crimes. According to the American Immigration Council, about 10 percent of people deported annually are Lawful Permanent Residents or green card holders — and that doesn’t include the non-immigrants on other visas who were lawfully present in the United States and then deported. I will write more about this below.
Lott mistakenly chose a variable that combines an unknown number of legal immigrants with an unknown number of illegal immigrants. Lott correctly observed that “[l]umping together documented and undocumented immigrants (and often naturalized citizens) may mean combining very different groups of people.” Unfortunately, the variable he chose also lumped together legal immigrants and illegal immigrants.
The criminologist who sent me the ADC data also sent along a more detailed dataset for the stock of prisoners in Arizona for June 2017. This newer dataset’s CITIZEN variable is just as unusable as the same variable in the 1985 to 2017 dataset but it has an additional variable that allowed us to somewhat better identify incarcerated illegal immigrants: whether the prisoner has an Immigration and Customs Enforcement (ICE) detainer....
The equivalent of the “non-U.S. citizens and deportable” variable in the June 2017 ADC database is called “criminal aliens,” another category that is not synonymous with illegal immigrants. In Arizona’s ADC regulations, the government first determines whether a prisoner is a criminal alien and then investigates whether he or she is an illegal immigrant. In June 2017, only 38.3 percent of criminal aliens had ICE detainers on them and, thus, were more likely to be illegal immigrants. As a back-of-the-envelope estimation, I assumed that 38.3 percent of “non-U.S citizens and deportable” are actually illegal immigrants in the ADC’s larger 1985-2017 dataset. This back-of-the-envelope calculation turns Lott’s finding on its head. Whereas he found that 11.1 percent of the admissions to Arizona prisons in 2014 were illegal immigrants, the real percentage is a maximum of 4.3 percent, below the 4.9 percent estimated illegal immigrant share of the state’s population.
Lott’s controversial empirical findings regarding the high admission rate of illegal immigrants to Arizona prisons, a finding that contradicts virtually the entire body of research on the topic, stems from his simple misreading of a variable in the 1985-2017 ADC dataset. Lott thought that “non-U.S. citizens and deportable” describes only illegal immigrants but it does not. There is no way to identify illegal immigrants with precision in the 1985-2017 ADC dataset and their population can only be estimated through the residual statistical methods that Lott derides as “primitive.” Using another variable in the June 2017 ADC dataset that Lott did not analyze reveals that, at worst, illegal immigrants in Arizona likely have an incarceration rate lower than their percentage of that state’s population.
Prior related post:
February 5, 2018
Georgia Supreme Court refuses to extend Miller Eighth Amendment limits on juve sentencing to non-LWOP sentences
A helpful colleague made sure I saw the new short ruling on juvenile sentencing limits handed down by the Supreme Court of Georgia today in Veal v. Georgia, No. S17A1758 (Ga. Feb. 5, 2018) (available here). Here is the meat of the opinion in Veal:
Citing OCGA § 42-9-39(c), appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release. Given his life expectancy, appellant states that even this new sentence is unconstitutional because it amounts to a de facto LWOP sentence, again without any determination of the factors set forth in Veal I which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime. Appellant asserts that reading the Miller and Montgomery Supreme Court opinions as applying only to actual LWOP sentences elevates form over substance and permits the label of the sentence to supersede the actual result of the imposed sentence.
Appellant acknowledges that he is asking this Court to expand the holdings of the Miller and Montgomery Supreme Court opinions. As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to determine if that person is one of the exceptionally rare juveniles for whom such a sentence is appropriate because of “a specific determination that he is irreparably corrupt.” Veal I, supra, 298 Ga. at 702. But neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes. See Miller, supra, at 465. Appellant points to courts in other jurisdictions that have found Miller-like protections are required for a prison sentence imposed upon a juvenile that exceeds the individual’s life expectancy. See, e.g., State v. Zuber, 152 A3d 197 (N.J. 2017); State v. Null, 836 NW2d 41 (Iowa 2013) (holding under the Iowa constitution that “an offender sentenced to a lengthy term-ofyears sentence should not be worse off than an offender sentenced to life in prison without parole who has the benefit of an individualized hearing under Miller”). On the other hand, other state and federal courts have determined that Miller and Montgomery do not apply to cases that do not involve LWOP sentences but nevertheless involve sentences that, according to the convicted juvenile, are the functional equivalent to a life sentence without the opportunity for parole. See, e.g., Starks v. Easterling, 659 Fed. Appx. 277 (6th Cir. 2016); Bell v. Nogan, 2016 WL 4620369 (D.N.J. Sept. 6, 2016); People v. Sanchez, 2013 WL 3209690 (Cal. Ct. App. June 25, 2013).
Because the Supreme Court has not expanded its mandate that the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies to juvenile offenders requires a sentencer to consider a juvenile’s youth and its attendant characteristics before imposing a sentence other than LWOP, this Court will not do so. Although appellant mentions “the analogous provision of the Georgia Constitution” in his enumerations of error, he offers no argument or citation of authority whatsoever regarding the application of the Georgia Constitution to the case. We therefore deem any state constitutional claim abandoned.
Reviewing the potential import and impact of Prez Trump's talk of prison reform
Matt Ford at The New Republic has this new piece with this full headline" "A Chance for Criminal Justice Reform Under Trump: Despite his fear-mongering over crime, the president recently promised to help ex-prisoners 'get a second chance at life'." Can he deliver?" Here are excerpts from the second half of the piece (with a particular paragraph stressed for additional comment):
Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.
At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.
Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.
So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”
Proposals like those overlap with policies favored by Democrats, to an extent. Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses. Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.
But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year. While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.
More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states. Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed. By endorsing some type of reform, the president could bolster local efforts against challenges from the right.
Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed. Instead, he’s proving that the shift could be more durable than expected.
The paragraph that I have emphasized here strikes me as an especially important aspect of Prez Trump's recent reform talk even if major or significant federal statutory reform fails to emerge from Congress anytime soon. Just as the "Right on Crime" movement has helped enable state-level politicians feel comfortable supporting criminal justice reform consistent with conservative principles, the avowed commitment by Prez Trump to prison reform allows state-level politicians to feel they can support prison reform consistent with supporting the President. Indeed, effective criminal justice advocates in red states now may be able to call out any opponents of prison and reentry reform for seeking to undermine or resist what President Trump says is important for Making America Great Again.
February 5, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)
Examining whether juve life with parole in Maryland really means a real chance at parole
This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come. Here are excerpts:
Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs. He laid the phone on a bed. From the other end of the line, his girlfriend heard voices. Then, sharp banging and doors slamming, followed by groans and gurgling.
The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat. Bowie was a high school dropout, fueled by drugs and anger. He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.
Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”
Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.
Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18. Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.
“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill. I’m not the same person I was.”
His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system. Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.
The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature. He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.
The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....
“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.
The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”
Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days. In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007. Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.
Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.
More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life. Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers. But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.
“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.
The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.
February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)
Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing
Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing. This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:
Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."
Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."
Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."
Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.
Prior related posts:
- Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
- Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
- Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
- Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
- Still more notable commentary on judicial conduct in sentencing of mass molestor
February 4, 2018
Yet another notable pitch for "why Conservatives should support criminal justice reform"
Long time readers know I have been talking a long time about a "new right" on a range of sentencing and corrections issues (though recalling this post on the topic back in January 2005 lead me to realize that the new right is not so new circa 2018). And lately it is hard now to pull up Fox News and not see some discussion of some criminal justice reform issue. Today's example is in this form of this new Fox News commentary authored by Texas Representative Jerry Madden titled "Here's why Conservatives should support criminal justice reform." U recommend the full piece, and here are excerpts:
Criminal justice reform may wind up being the most significant conservative policy change in Washington this year. That may sound surprising to some, but not to anyone who has been watching this movement in conservative states over the last decade.
Starting in Texas, conservatives of all stripes – fiscal, social, constitutional, or otherwise – have found favor with reforms to the criminal justice system that focus on increasing public safety and cutting costs to taxpayers. This is, seemingly, a very commonsense goal. But take a look at how most states and the federal government operate and you will find that well-functioning, well-focused systems are far from the norm.
The results are undeniable: Texas has lowered its overall crime rate 31 percent, putting it at levels that have not been seen since 1967. In that time, the Lone Star State has closed eight prisons and lowered the incarceration rate. This flies in the face of the old, mistaken ways of viewing criminal justice policy that considers incarceration the default rather than one tool of many to protect public safety.
At the heart of the Texas reforms is the idea that the nearly all of those incarcerated will eventually return to society after serving their sentence and therefore they must be rehabilitated to ensure that they do not return to a life of crime. Prisons cannot be mere people warehouses. For the offenders who commit to it, there is a real opportunity for redemption and second chances.
To no conservative’s surprise, the federal government lags behind in this area. The budget for the Bureau of Prisons is growing out-of-control. The BOP’s budget is now over 25 percent of the total budget for the Justice Department – a massive line item for an already over-indebted government. The outdated policies passed by Congress in the 1980s and 1990s are in desperate need of updating to match what states have shown to be successful.
There are two bills currently before Congress that will push for conservative changes. Rep. Doug Collins of Georgia and Sen. John Cornyn of Texas, both Republicans, are the lead sponsors on two prison reform bills that focus on preparing prisoners for re-entry. These bills don’t reduce the sentences for crimes, but rather encourage inmates to participate in recidivism-reducing programming by offering incentives that include more phone calls and visits with family, and earned time to spend the end of their sentence in a halfway house, home confinement, or community supervision....
There is further encouragement coming from, of all places, 1600 Pennsylvania Avenue. President Trump has stated the case well: there is a path to remain “very tough on crime, but we will provide a ladder of opportunity to the future.” In his listening session at the White House recently, the president further explained: “My administration is committed to helping former inmates become productive, law-abiding members of society.” President Trump has made it clear that this is an issue that conservatives across the country can rally behind.
With the state examples as proof, and with a push from conservatives in the White House and Congress, criminal justice reform is a clear winner for the right. It is time for Congress to move on conservative reform as soon as possible.