Friday, November 27, 2015

Spotlighting why ending the drug war could make a big dent in mass incarceration

This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration.  Here is how it starts (with links from the source):

Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons.  But some researchers have pushed back against this notion in recent years.  They point out that drug offenders account for only about 1 in 5 state and federal inmates.  The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent.  Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.

But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison.  Rothwell calls this "stock and flow."

He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison.  The reason for the difference?  Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals.  So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.

"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes.  "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."

Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes.  Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society.  A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.

November 27, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 25, 2015

"The Gaping Hole in the Prison Early Release Program: Mental Health Care"

MentalhealthThe title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison."  Here are excerpts:

In Oc­to­ber, the Obama ad­min­is­tra­tion an­nounced the early re­lease of more than 6,000 fed­er­al in­mates.  While a surfeit of data on Amer­ica’s over-in­car­cer­a­tion ap­pears to sup­port the ad­min­is­tra­tion’s ra­tionale for the early-re­lease of in­mates serving time for non­vi­ol­ent of­fenses, a cru­cial as­pect went un­ad­dressed in the hoopla sur­round­ing the announce­ment: What kind of men­tal-health re­sources are avail­able in com­munit­ies for in­mates des­ig­nated for early re­lease?

And, across the board, as the ad­min­is­tra­tion and ad­voc­ates un­der­take strategies to ad­dress mass in­car­cer­a­tion, what is the fate of the es­tim­ated hun­dreds and thou­sands of in­mates in Amer­ic­an jails and pris­ons who are men­tally ill?

The U.S. Sen­ten­cing Com­mis­sion’s early-re­lease pro­gram put a point on grow­ing na­tion­al aware­ness about the implcations of Amer­ica’s vast in­car­cer­a­tion uni­verse.  It res­ul­ted from a bi­par­tis­an ef­fort to re­make harsh drug-re­lated sen­ten­cing guidelines that had spurred the mass in­car­cer­a­tion of mostly black and Latino men be­gin­ning in the mid-1980s.  By year end 2014, 2.2 mil­lion people were locked up in Amer­ica’s jails and pris­ons, rep­res­ent­ing the highest rate of in­car­cer­a­tion among de­veloped na­tions world­wide.  The pop­u­la­tion of in­mates who are sched­uled to re­ceive early re­lease is com­posed primar­ily of drug of­fend­ers who will be un­der the watch of pro­ba­tion of­ficers after they return to ci­vil­ian life, ac­cord­ing to Sally Yates, Deputy U.S. At­tor­ney Gen­er­al.

But the ab­sence of a com­pre­hens­ive plan to serve the men­tal health needs of in­mates in the early-re­lease pro­gram high­lights a long-stand­ing con­cern among pris­on re­form ad­voc­ates: the tight in­ter­sec­tion of drug or al­co­hol ab­use, men­tal ill­ness, and in­car­cer­a­tion.  Men­tal health ex­perts cite the “co-oc­cur­ring” pres­ence of drug or al­co­hol ab­use and men­tal ill­ness among in­mates as a ma­jor chal­lenge, one that makes both the daily pro­cess of safely hous­ing pris­on­ers par­tic­u­larly com­plex, and which also com­plic­ates the re­turn of in­mates to com­munit­ies....

A 2014 re­port by the Na­tion­al Re­sources Coun­cil (NRC) showed that men­tal ill­ness in the na­tion’s jails and pris­ons is per­vas­ive.  Pro­duced by an in­ter­dis­cip­lin­ary com­mit­tee of re­search­ers, the re­port ex­amined data from cor­rec­tions-department sur­veys and un­covered the pres­ence of “men­tal-health con­cerns” among 64 per­cent of in­mates in the nation’s jails, 54 per­cent of state pris­on­ers, and among 45 per­cent of in­mates at fed­er­al fa­cil­it­ies.... Con­sequently, a grow­ing num­ber of crim­in­al-justice and pris­on­er-re­hab­il­it­a­tion ex­perts are fo­cus­ing in on men­tal health as a key compon­ent of Amer­ica’s mass in­car­cer­a­tion, both as a primary in­stig­at­or of im­pris­on­ment, and also as a ma­jor challenge that must be ad­dressed in shap­ing re­lease policies and pro­to­cols....

Amer­ica’s jour­ney on the path to be­com­ing the de­veloped na­tion with the most in­car­cer­ated people in the world — and the na­tion where pris­ons and jails are de facto men­tal-health catch­ments — gained steam with the “War on Drugs,” a col­lec­tion of re­gion­al and fed­er­al tough-on-crime policies and harsh sen­ten­cing laws that es­cal­ated dur­ing the 1980s as crack co­caine use in urb­an loc­ales drove up vi­ol­ent-crime rates and gen­er­ated nightly news cov­er­age of com­munit­ies in crisis.  But the spark that lit the fire un­der mass in­car­cer­a­tion in the U.S. was struck long be­fore the mid-1980s.

Be­gin­ning in the 1960s, states began rad­ic­ally re­du­cing tax­pay­er-fun­ded men­tal-health hos­pit­als and in­pa­tient cen­ters, re­leas­ing hun­dreds of thou­sands of men­tally ill or chal­lenged pa­tients in­to com­munit­ies.  Known as deinstitutionala­tion, the pro­cess was deemed ne­ces­sary by state law­makers and gov­ernors in or­der to shut­ter hos­pit­als that of­ten resembled 19th-cen­tury “snake pits” — large, poorly run fa­cil­it­ies in which thou­sands of vul­ner­able men­tally ill citizens were ware­housed, un­der-served, and for­got­ten....

Dur­ing the same era, from Cali­for­nia to New York, a per­fect storm of factors af­fect­ing in­car­cer­a­tion rates loomed and then broke: na­tion­wide, thou­sands of res­id­ents who needed men­tal health at­ten­tion but couldn’t af­ford private care or ac­cess af­ford­able ser­vices turned to self-med­ic­at­ing be­ha­vi­or — through drug or al­co­hol use — which led to crim­in­al activ­ity, which in turn brought them in­to the crim­in­al-justice sys­tem at the very mo­ment when judges and elec­ted of­fi­cials coast to coast pushed for severe sen­ten­cing of those in­volved in drug-re­lated activ­ity.

In city after city, those without money to af­ford private drug treat­ment or men­tal-health care — or private at­tor­neys — were swept in­to jails and pris­ons, some­times fa­cing terms of a dec­ade or longer un­der new man­dat­ory-min­im­um sen­ten­cing rules for pos­sess­ing or selling small or mod­er­ate amounts of nar­cot­ics.  A raft of new sen­ten­cing guidelines nar­rowed av­en­ues for pro­ba­tion for those with mul­tiple drug of­fenses.  These ‘three strikes’ laws, as they came to be known, were ap­proved by a dec­ade’s worth of Con­gress mem­bers, as well as by Demo­crat­ic and Re­pub­lic­an pres­id­ents.

Thou­sands of low-level de­fend­ants, many suf­fer­ing from emo­tion­al- or men­tal-health chal­lenges that they had been "street treat­ing" by us­ing il­leg­al drugs, then pro­duced the co-oc­cur­ring dy­nam­ic of in­di­vidu­als strug­gling with men­tal ill­ness and drug or al­co­hol ad­dic­tion.  Plunged in­to state or fed­er­al pen­it­en­tiar­ies, thou­sands re­ceived poor treat­ment or no treat­ment, and their men­tal health de­teri­or­ated.  In some in­stances, men­tally ill in­mates fell prey to vi­ol­ence from oth­er in­mates, harmed or killed them­selves, or de­veloped deep­er drug or al­co­hol ad­dic­tions.  A Feb­ru­ary study from the Vera In­sti­tute for Justice found that 83 per­cent of jail in­mates in the U.S. do not re­ceive men­tal-health services or treat­ment after be­ing ad­mit­ted....

Justice De­part­ment of­fi­cials and some state judges have star­ted to dis­play act­iv­ist tend­en­cies, for­cing loc­al jur­is­dic­tions to be­gin find­ing solu­tions for the grow­ing num­ber of men­tally ill in­mates with­in the vast net­works of loc­al ­correc­tion­al fa­cil­it­ies.  In Au­gust, for ex­ample, Los Angeles County agreed to im­ple­ment ma­jor re­forms aimed at improv­ing the con­di­tions of men­tally ill in­mates fol­low­ing strong pres­sure from DOJ....  [I]n the state that came to em­body the ac­cel­er­a­tion of mass in­car­cer­a­tion, a blue­print is tak­ing shape for achiev­ing hu­mane and fisc­ally re­spons­ible out­comes for men­tally ill people who come in­to con­tact with the crim­in­al-justice sys­tem.

November 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, November 21, 2015

Latest BJS official data show reduction of offenders on probation and parole

As reported in this official press release, the Bureau of Justice Statistics this past week released this report, titled "Probation and Parole in the United States, 2014," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the press release:

The one-percent decline in the number of adults supervised in the community on probation or parole between yearend 2013 and 2014 marked the seventh consecutive year of decline in the population, the Bureau of Justice Statistics (BJS) announced today.  In the past seven years, adults under community supervision declined between 0.5 percent and 2.6 percent annually, or by nearly 400,000 offenders over the 7-year period.

Between yearend 2008 and 2014, the probation population fell 10 percent, while the parole population increased nearly 4 percent.  Probation is a court-ordered period of supervision in the community, generally used as an alternative to incarceration, and parole is a period of conditional supervised release in the community following a prison term.

An estimated 4.7 million adults were under correctional community supervision in the United States on December 31, 2014, down 45,300 offenders from the same day in 2013. The decline in community supervision was due to a drop in the number on probation that was offset by an increase in the number on parole. Between yearend 2013 and 2014, the probation population decreased by 46,500 offenders (from 3,910,600 to 3,864,100 offenders) while the parole population increase by 1,700 offenders over the same period (from 855,200 to 856,900 offenders)....

Other probation findings include —

  • About 25 percent of probationers were female in 2014, up from 22 percent in 2000....
  • Of all persons on probation during 2014, the incarceration rate (5 percent) among those violating their conditions of supervision — including incarceration for a new offense, a revocation and other reasons — was similar to the rate observed in 2013 (5.4 percent).

Other parole findings include —

  • Twelve percent of parolees were female in 2014, unchanged from 2000.
  • In 2014, nearly a third (31 percent) of parolees were being supervised for violent offenses, about a third (31 percent) for drug crimes and nearly a quarter (22 percent) for property offenses....
  • Among all persons on parole during the year, an estimated 9 percent were reincarcerated in 2014, a rate similar to 2013.

November 21, 2015 in Data on sentencing, Detailed sentencing data, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Friday, November 20, 2015

"Prison Time Surges for Federal Inmates"

PSPP_PrisonTime_fig1The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):

The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.)  For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.

Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone.  Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.

Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months.  These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012.  One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”

The long-term growth of this population has driven a parallel surge in taxpayer spending.  As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.

November 20, 2015 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, November 19, 2015

"States of Women's Incarceration: The Global Context"

The title of this post is the title of this effective new on-line report by the Prison Policy Initiative.  Here is how it gets started:

We already know that when it comes to incarceration, the United States is truly exceptional.  As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men.  As a result, women's incarceration rates are overshadowed and often lost in the data.  As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.

Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states.  Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself.  The next 17 jurisdictions are also American states.

Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.  Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.

Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages.  New Hampshire is on par with Russia, and New York with Rwanda.

Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country.  In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.

November 19, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, November 16, 2015

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

Can and will "big data" enable astute (and/or scary) recidivism risk assessment?

Download (3)The question in the title of this post is prompted by this interesting Christian Science Monitor article, headlined "Microsoft says its software can tell if you're going back to prison." Here are excepts:

In a scenario that seems ripped straight from science fiction, Microsoft says its machine learning software can help law enforcement agencies predict whether an inmate is likely to commit another crime by analyzing his or her prison record.

In a series of videos and events at policing conferences, such as one on Oct. 6 at the Massachusetts Institute of Technology, Microsoft has been quietly marketing its software and cloud computing storage to law enforcement agencies.

It says the software could have several uses, such as allowing departments across the country to analyze social media postings and map them in order to develop a profile for a crime suspect. The push also includes partnerships with law enforcement technology companies, including Taser – the stun gun maker – to provide police with cloud storage for body camera footage that is compliant with federal standards for law enforcement data.

But in a more visionary – or possibly dystopian – approach, the company is also expanding into a growing market for what is often called predictive policing, using data to pinpoint people most likely to be at risk of being involved in future crimes.

These techniques aren’t really new. A predictive approach — preventing crime by understanding who is involved and recognizing patterns in how crimes are committed — builds on efforts dating back to the early 1990s, when the New York City police began using maps and statistics to track areas where crimes occurred most frequently.

“Predictive policing, I think, is kind of a catch-all for using data analysis to estimate what will happen in the future with regard to crime and policing,” says Carter Price, a mathematician at the RAND Corporation in Washington who has studied the technology. “There are some people who think it’s like the movie ‘Minority Report’ ” — in which an elite police unit can predict crimes and make arrests before they occur — “but it’s not. No amount of data is able to give us that type of detail.”

Scholars caution that while data analysis can provide patterns and details about some types of crimes – such as burglary or theft – when it comes to violent crime, such approaches can yield information for police about who is at high risk of violent victimization, not a list of potential offenders.

“Thinking that you do prediction around serious violent crime is empirically inaccurate, and leads to very serious justice issues. But saying, ‘This is a high risk place,’ lets you focus on offering social services,” says David Kennedy, a professor at John Jay College of Criminal Justice. In the 1990s, he pioneered an observation-driven approach that worked with local police in Boston to target violent crime. After identifying small groups of people in particular neighborhoods at high risk of either committing a crime or becoming a victim of violence, the program, Operation Ceasefire, engaged them in meetings with police and community members and presented them with a choice – either accept social services that were offered or face a harsh police response if they committed further crimes. It eventually resulted in a widespread drop in violent crime often referred to as the “Boston Miracle.”...

In one video tutorial for law enforcement agencies, Microsoft makes a sweeping claim. Using records pulled from a database of prison inmates and looking at factors such as whether an inmate is in a gang, his or her participation in prison rehabilitation programs, and how long such programs lasted, its software predicts whether an inmate is likely to commit another crime that ends in a prison sentence. Microsoft says its software is accurate 90 percent of the time.

“The software is not explicitly programmed but patterned after nature,” Jeff King, Microsoft’s principal solutions architect, who focuses on products for state and local governments, says in the video. “The desired outcome is that we’re able to predict the future based on that past experience, and if we don’t have that past experience, we’re able to take those variables and then classify them based on dissimilar attributes."...

While predictive policing is still in the early stages, some say the data it generates could have a mixed impact. While the information could improve police transparency, it could also lead to other problems. “If police departments had access to social media accounts, and it turned out that crimes were being committed by people who liked a certain kind of music and a certain sports team, it could lead to certain kinds of racial discrepancies,” says Dr. Price, the RAND researcher. “It’s a useful tool, but it should always be done with [the idea of] keeping in mind how this will impact populations differently, and just sort of being cognizant of that when policies are put in place."

But Kennedy, the criminology professor, says that for violent crimes, using data that shows crime risks to influence policing actions could have devastating consequences. “People have been trying to predict violent crimes using risk factors for generations, and it’s never worked,” he says. “I think the inescapable truth is that, as good as the prediction about people may get, the false positives are going to swamp the actual positives ... and if we’re taking criminal action on a overwhelming pool of false positives, we’re going to be doing real injustice and real harm to real people.”

November 15, 2015 in Data on sentencing, National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

New York Times editorial makes case that California prison releases are working

The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration.  Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms.  Here are excerpts:

Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.

It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six low­level offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year.  It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation,  antitruancy efforts and mental health treatment.  Victims’ services receive funding, too.

Proposition 47 followed two other major reforms: A 2011 law diverted low­level offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.

After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three­-strikes reform are far below the state average.

Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47.  The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September.  But the law remains controversial.  Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.

In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County.  One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....

It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of low­level offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.

A few (of many) prior related posts on Prop 47 and its impact:

November 15, 2015 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Thursday, November 12, 2015

"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"

The title of this post is the title of this notable new data analysis from The Urban Institute.  Here are snippets from the start and end of the short and reader-friendly report:

Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.

Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....

At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses.  Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses.  While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses.  The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.

November 12, 2015 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Friday, November 06, 2015

Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)

Exo_yearThis DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year.  Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.

Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded.  For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep. 

Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers.  Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives.  But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.

Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015.  Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates.  I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns. 

November 6, 2015 in Data on sentencing, Death Penalty Reforms, National and State Crime Data, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, October 22, 2015

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

Looking closer at (unexpected?) states investing more in incarceration than higher education

I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal.  For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions.  That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:

A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades.  Many states are now contributing only a small fraction of the cost of "state" colleges and universities.

One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak.  But it could also be deceptive.  To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.

In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14.  In every case, the numbers are expressed as the percent higher or lower than the national average.

We found that beneath the headline, those 15 states actually were quite varied.  Some clearly underinvest in higher education, while others have high incarceration rates.  Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right.  Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.

Some of the states that underspend will surprise you. Reputations do not always match reality.

October 22, 2015 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Noting the notable decline in death sentences in Texas

A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions.  In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.  

But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise.  And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:

Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.

Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”

In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.

Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.

There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.

Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”

The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."

October 22, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Saturday, October 17, 2015

"The Decline of the Virginia (and American) Death Penalty"

The title of this post is the title of this notable new article by Brandon Garrett now available via SSRM. Here is the abstract:

The American death penalty is disappearing.  Death sentences and executions have reached the lowest levels seen in decades.  Public support for the death penalty has declined.  More states have abolished the death penalty or imposed de facto moratoria.  Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline.  Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s.  How times have changed.  There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty.  Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence).

Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004.  The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia.  However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings.  Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline.

I examine additional evidence from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.

October 17, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7)

Thursday, October 15, 2015

Texas completes its 12th execution of 2015

While many other states continue to struggle to acquire execution drugs (as highlighted here) or to properly administer the drugs they have (as highlighted here), Texas continues to have its machinery of death humming.  This AP article, headlined "Texas Executes Inmate for Killing Dallas Police Officer," reports on the state's latest execution:

A Texas man already being sought for a neighbor's slaying when he killed a Dallas police officer outside a club was executed Wednesday.  Licho Escamilla was put to death for the November 2001 death of Christopher Kevin James who was trying to break up a brawl involving Escamilla.  The 33-year-old prisoner was pronounced dead at 6:31 p.m. CDT — 18 minutes after the lethal injection began.

Escamilla became the 24th convicted killer executed this year in the United States.  Texas has accounted for 12 of the executions.  Before dying, Escamilla looked at the slain officer's daughter, who was seated a few feet away watching through a window, and told her: "God bless your heart."

He turned to his relatives watching through another window and said he loved them and everyone who supported him.  "Pope Francis, God's children has asked the state of Texas to switch my death sentence to life in prison," he said.  "But the state of Texas has refused to listen to God's children. They will have to take that up with God," he added.

He took two breaths as the sedative pentobarbital took effect, then became still.  His sister cried and screamed for God not to take him.  The rumbling of motorcycles could be heard outside the prison where bikers supporting the punishment had gathered....

James and three other uniformed officers were working off-duty when the brawl started. Escamilla pulled out a gun and opened fire on the officers as they tried to end the fight. The bullets from his 9 mm semi-automatic handgun struck James twice, knocking him to the ground.  Escamilla then calmly walked up to the officer and fired three more shots into the back of his head before running and exchanging shots with other officers, witnesses said.  A second officer wounded in the shootout survived.  A wounded Escamilla was arrested as he tried to carjack a truck.

About a half-dozen Dallas police officers stood at attention and saluted as relatives of the slain officer entered the prison in Huntsville ahead of the execution.  "It's taken longer than we would have liked," Frederick Frazier, first vice president of the Dallas Police Association, said.  He said he and others showed up to support James and make sure he's remembered for the work he did.  While officers know they're risking their lives every day, James' death has been difficult for them because of how it happened, Frazier added.

October 15, 2015 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms | Permalink | Comments (1)

Tuesday, September 29, 2015

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Thursday, September 17, 2015

Lots of new data from BJS on prisoners and from USSC on federal sentencing

Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources.  Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:

From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"

From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"

Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics.  With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:

September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 09, 2015

Examining death penalty developments in distinct death penalty states

The death penalty is subject to plenty of attention and scrutiny nationwide and especially in states that have traditionally carried out the most executions like Texas and Oklahoma.  But, I have noticed in the last few weeks some headline-making developments and/or notable commentary concerning capital punishment procedures and practices in a lot of distinct states with distinct death penalty histories. Going alphabetically by state, here is a round-up of some of the recent media pieces that have caught my eye:

California:  "Is Southern California the New Deep South?: Los Angeles County has sentenced more people to death than five Southern states combined."

Colorado: "After Aurora and Denver verdicts, Colorado mulls death penalty again: High-profile murder trials jump start death penalty debate in Colorado"

Delaware: "Judge blasts Delaware death penalty case

Missouri: "In the Execution Business, Missouri Is Surging: Defense lawyers call it a crisis; the state says it’s just doing its job."

Nebraska: "Back on the Agenda: Nebraska’s Death Penalty A grassroots effort aims to restore what the legislature just ended."

Pennsylvania: "End Pennsylvania’s limbo over death penalty"

September 9, 2015 in Data on sentencing, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 01, 2015

"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"

The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:

This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.

However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites.  After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent.  These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.

September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Guns, gangs, ganja, going after police ... are there obvious lessons from 2015 homicide spikes?

The question in the title of this post is prompted by this lengthy front-page New York Times article spotlighting the notable spike in homicides in many US cities so far in 2015.  The article is headlined "Murder Rates Rising Sharply in Many U.S. Cities," and here are excerpts:

Cities across the nation are seeing a startling rise in murders after years of declines, and few places have witnessed a shift as precipitous as this city.  With the summer not yet over, 104 people have been killed this year — after 86 homicides in all of 2014.

More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier.  In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.

Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing.  Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.

Rivalries among organized street gangs, often over drug turf, and the availability of guns are cited as major factors in some cities, including Chicago.  But more commonly, many top police officials say they are seeing a growing willingness among disenchanted young men in poor neighborhoods to use violence to settle ordinary disputes....

Urban bloodshed — as well as the overall violent crime rate — remains far below the peaks of the late 1980s and early ’90s, and criminologists say it is too early to draw broad conclusions from the recent numbers.  In some cities, including Cincinnati, Los Angeles and Newark, homicides remain at a relatively steady rate this year.

Yet with at least 35 of the nation’s cities reporting increases in murders, violent crimes or both, according to a recent survey, the spikes are raising alarm among urban police chiefs. The uptick prompted an urgent summit meeting in August of more than 70 officials from some of the nation’s largest cities.  A Justice Department initiative is scheduled to address the rising homicide rates as part of a conference in September....

The police superintendent in Chicago, Garry McCarthy, said he thought an abundance of guns was a major factor in his city’s homicide spike.  Even as officials in both parties are calling for reducing the prison population, he insisted that gun offenders should face stiffer penalties.  “Across the country, we’ve all found it’s not the individual who never committed a crime before suddenly killing somebody,” Mr. McCarthy said on Monday. “It’s the repeat offenders. It’s the same people over and over again.”

Among some experts and rank­and­file officers, the notion that less aggressive policing has emboldened criminals — known as the “Ferguson effect” in some circles — is a popular theory for the uptick in violence.  “The equilibrium has changed between police and offenders,” said Alfred Blumstein, a professor and a criminologist at Heinz College, Carnegie Mellon University.

Others doubt the theory or say data has not emerged to prove it.  Richard Rosenfeld, a criminologist from the University of Missouri­-St. Louis, said homicides in St. Louis, for instance, had already begun an arc upward in 2014 before a white police officer killed an unarmed teenager, Michael Brown, in nearby Ferguson.  That data, he said, suggests that other factors may be in play.

Less debated is the sense among police officials that more young people are settling their disputes, including one started on Facebook, with guns....

In New Orleans, Michael S. Harrison, the police superintendent, said the city’s rise in homicides did not appear to reflect any increase in gang violence or robberies of strangers, but rather involved killings inside homes and cars by people who know their victims — particularly difficult crimes to predict or prevent....

In New York, there have been a larger number of gang­-related killings, Stephen Davis, the department’s top spokesman, said.  But he also said many homicides remained unexplained, the result of disputes with murky origins.  “There are a lot of murders that happen in the spur of the moment,” Mr. Davis said.

Especially because 2014 was a year with record-low homicide rates in many jurisdictions, I am not too surprised (though I am much troubled) by these new homicide data. I share the view that it is too early to draw any firm conclusions as to what is causing or what should be done about this uptick in deadly urban violence.  But I also think it is not too early for researchers to be asking a lot of hard questions about what sets of legal and social factors which were previously successful in reducing homicide rates are now proving less effective.

Astute readers should see that I threw ganja into the alliterative mix of factors in the title of this post because changes in national marijuana policies and practices are among the legal and social factors that I have been watching closely lately in relation to crime rates.  This New York Times article does not discuss this factor — or many others crime and punishment factors like increases in opioid addiction, or reduced use of the death penalty — surely because there are so many different and hard-to-track factors which might play some role in any changing nationwide  crimes patterns.

September 1, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 28, 2015

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Do tough sex offender restrictions really hurt women and children more than keeping them safe?

The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:

In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.

But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....

Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.

The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.

Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....

Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....

Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.

None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.

There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, August 27, 2015

BJS releases latest data on crime victimization throughout United States

This new press release from the Bureau of Justice Statistics reports on encouraging crime news for 2014 based on one notable metric. Here are the basic data from the press release:

The violent crime rate did not change significantly in 2014 compared to 2013, the Bureau of Justice Statistics (BJS) announced today. Violent crimes include rape or sexual assault, robbery, aggravated assault and simple assault.  In 2014, the violent crime rate was 20.1 victimizations per 1,000 U.S. residents age 12 or older.

The rate of domestic violence, which includes crime committed by intimate partners (current or former spouses, boyfriends or girlfriends) and family members was also unchanged from 2013 to 2014 (4.2 per 1,000). Likewise, in 2014 the rates of intimate partner violence (2.4 per 1,000), violence resulting in an injury (5.2 per 1,000) and violence involving a firearm (1.7 per 1,000) did not change significantly.

In comparison, the property crime rate, which includes burglary, theft and motor vehicle theft, fell from 131.4 victimizations per 1,000 households in 2013 to 118.1 per 1,000 in 2014.  The overall decline was largely the result of a decline in theft....

From 2013 to 2014, crime rates varied slightly by region. There was no significant difference in the rate of violent crime in the Midwest and South, while the Northeast and West had slight decreases.  Property crime rates decreased in the Midwest, South and Western regions of the country, but there was no significant change in the rate of property crime in the Northeast....

From 2013 to 2014, there were no significant changes in rates of violent crime across urban, suburban and rural areas.

The full new BJS report, excitingly titled "Criminal Victimization, 2014," is available here and the findings are based on data from the National Crime Victimization Survey (NCVS). Interestingly, while the press release quoted above emphasizes there has been no change in violent crime rate, the first few paragraphs of the full report provides a slightly more encouraging story based on the detailed numbers (and the broader multi-year trends) and highlighted by my emphasis below:

In 2014, U.S. residents age 12 or older experienced an estimated 5.4 million violent victimizations and 15.3 million property victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS).  There was no significant change in the overall rate of violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2013 (23.2 victimizations per 1,000 persons age 12 or older) to 2014 (20.1 per 1,000) (figure 1).  However, the rate of violent crime in 2014 was lower than the rate in 2012 (26.1 per 1,000).  From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000.

The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 131.4 victimizations per 1,000 households in 2013 to 118.1 victimizations per 1,000 in 2014.  The decline in theft accounted for the majority of the decrease in property crime.  Since 1993, the rate of property crime declined from 351.8 to 118.1 victimizations per 1,000 households.

This particular BJS data source had shown an uptick in overall crime in the period from 2010 to 2012. It is encouraging news that this data source is now showing that crime seemed to be going back down again in the period from 2012 to 2014.

August 27, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Wednesday, August 26, 2015

New research report examines impact of "Realignment" on crime in California in 2014

Via an email from the Center on Juvenile and Criminal Justice (CJCJ), I received news about this notable new research report titled "Realignment and Crime in 2014: California’s Violent Crime in Decline." Here is how the CJCJ report was summarized in the email I received:

A new report from the Center on Juvenile and Criminal Justice examines the impact of Public Safety Realignment on county crime given newly produced 2014 data. CJCJ finds no causal relationship between Realignment and changes in rates of reported Part I offenses.

• Since Realignment was implemented in 2011, statewide violent crime and property crime have generally decreased. This decline seems to be a continuation of the downward crime trend of the past two decades that has not demonstrably been affected by Realignment.

• Almost all counties experienced a decrease in their rates of state prison commitments for non-violent offenses in 2013 versus 2010. However, these declines showed no correlation with changes in crime rates in individual counties in 2014 versus 2010. For example, Orange County’s rate of non-violent prison admissions decreased by 53 percent along with substantial reductions in crime, while adjacent Riverside County saw a 30 percent decrease in non-violent prison admission rates along with less favorable crime trends.

• Trends in motor vehicle theft, which some researchers have connected to Realignment, were highly erratic among individual counties (for example, down 35 percent in Fresno County; up 102 percent in Shasta County). No correlations between Realignment and motor vehicle theft were apparent.

This report builds on CJCJ's previous county-level analyses finding that no definitive conclusions can be drawn about the impact, if any, of Realignment on crime at this time. Instead, this report highlights nine “model counties” that have shown uniquely large decreases in reliance on state prisons alongside uniquely large reductions in property, violent, and total crime. Policymakers should study the measures taken in these nine counties to better implement effective and safe statewide decarceration strategies.

August 26, 2015 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Sunday, August 23, 2015

Could marijuana reform be making Washington roadways safer even if more drivers test positive for THC?

08-23_DUI_violations_t410The question in the title of this post is prompted by a chart reprinted here that accompanies this extended article concerning the variety of possible impacts of marijuana reform in Washington state.  The article is headlined "Is marijuana dragging us down?: Here's a look at marijuana's role in traffic fatalities, quality-of-life issues, crime," and here are criminal justice excerpts (with key line emphasized):

When recreational marijuana was legalized, Washington entered the unknown, triggering questions — and predictions — about what might happen. Would drug dealers hang around the pot shops? Would it bring riffraff into the neighborhood and make shops easy crime targets? Would people abuse the drug? Or smoke and drive, putting others in harm's way?...

The Washington Traffic Safety Commission found that marijuana has increasingly become a factor in fatal crashes. Most drivers in fatal collisions are tested for drugs. In 2014, among 619 drivers involved in fatal crashes, 89 tested positive for cannabis, according to the Washington Traffic Safety Commission. Of those marijuana-positive drivers, 75 had active THC (the psychoactive compound in cannabis) in their blood, meaning they had recently used the drug. That's twice as many drivers with active THC in their blood than there were in 2010. About half of those 75 drivers were above the legal limit of 5 nanograms of THC per milliliter of blood, the traffic safety commission said. The driver with the highest THC level tested at 70 nanograms of marijuana per milliliter of blood — 14 times the legal limit.

Half of last year's THC-positive drivers were also under the influence of alcohol, and most were above the 0.08 blood alcohol concentration limit, the traffic safety commission said. Marijuana and alcohol used together has a compounding effect.

Shelly Baldwin, spokeswoman for the Washington Traffic Safety Commission, said drugs have surpassed alcohol as factors in fatal crashes. "Marijuana ends up being the most frequent drug, but certainly we see methamphetamine and opiates and cocaine, prescription drugs. There's a long list," Baldwin said....

In 2014, 703 Washington drivers tested positive for being above the legal marijuana limit of 5 ng/mL. That's a fraction of the total DUI violations, which were 25,795 statewide last year. In general, though, driving under the influence violations have gone down in Washington. That means the increase in marijuana detection among drivers is a new, unnerving trend for traffic officials....

The who, what, when, where, why and how of crime is always changing.  Officials are hesitant to say what leads to crime, given its ebb and flow, making it difficult to discern whether legalizing pot affected public safety.

Marijuana-related crimes, such as possession and selling of drug paraphernalia, have dropped off, which makes sense given it's now legal to have pot and a pipe.  In general, crime has gone down around Clark County, though it increased about 1 percent for the whole state last year, according to the Washington Association of Sheriffs and Police Chiefs.  Drug violations accounted for nearly 13,700 crimes reported statewide last year — an uptick from 2013's almost 13,000 violations.

The question in the title of this post is generated by what strikes me as a remarkable — and remarkably significant? — 35% decline in the total number of DUI offenses in Washington state since marijuana was legalized by voter initiative in 2012.  Many public health experts have led me to conclude that if a significant segment of the population substitutes marijuana use for alcohol use — instead of supplementing alcohol with marijuana — there will be net public-health benefits because of reduced alcohol-related harms that should surpass any increased marijuana-related harms.  These data from Washington state, which do seem to show a small increase in marijuana-related roadway harms, suggest there has been a major overall reduction in dangerous driving and thus net public safety benefits in the Evergreen State since marijuana was legalized.

As I say repeatedly in a variety of settings, it is way too early to reach any firm conclusions about what basic crime and public safety data in marijuana reform jurisdictions really mean for the short- or long-term consequences of legalizations.  Nevertheless, even the basic numbers reported here highlight the importance of considering all marijuana-specific data in the context of the broader public safety issues with which they interact.

August 23, 2015 in Data on sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1)

Thursday, August 13, 2015

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Monday, August 10, 2015

Taking stock of what Glossip now means for executions throughout the US

Exec_year (1)The most important practical question in the wake of the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol — not only for the roughly 3000 murderers currently on death row throughout the United States, but also for all those eager to see death sentences carried out — is whether Glossip will increase the chances and speed with which the condemned get taken to a death chamber for a execution.  This new AP article, headlined "Justices Speak out About Death Penalty, but Executions Go On," speaks somewhat to this reality (while also highlighting that court challenges to death sentences are not going to decline anytime soon).  Here are excerpts:

Wherever their summer travels have taken them, Supreme Court justices probably will weigh in over the next few days on Texas' plans to execute two death row inmates in the week ahead.  If past practice is any guide, the court is much more likely to allow the lethal-injection executions to proceed than to halt them.

Opponents of the death penalty took heart when Justices Stephen Breyer and Ruth Bader Ginsburg made the case against capital punishment in late June as arbitrary, prone to mistakes and time-consuming.  Even if death penalty opponents eventually succeed, the timeline for abolition probably will be measured in years, not months.

That's because Breyer, joined by Ginsburg, was writing in dissent in a case involving death row inmates in Oklahoma, and five sitting justices, a majority of the court, believe "it is settled that capital punishment is constitutional," as Justice Samuel Alito wrote in his opinion for the court in that same case.

Texas has scheduled back-to-back executions Wednesday and Thursday for Daniel Lee Lopez and Tracy Lane Beatty.  Lopez was convicted of running over a Texas police officer with his car during a high-speed chase. Lopez' lawyer already has asked the court to stop the execution.  Beatty strangled his 62-year-old mother, then stole her car and drained her bank accounts.  He has an appeal pending in lower courts and could also end up at the Supreme Court.

The justices rarely issue last-minute reprieves to death-row inmates.  Even after Breyer's opinion calling for a re-examination of capital punishment by the Supreme Court, no justice publicly backed a Missouri inmate's plea to halt his execution to allow the court to take up the constitutionality of the death penalty.

Similarly, the three Oklahoma inmates who lost their high court case now face execution in September and October and want the justices to reconsider the decision from June in light of Breyer's dissent. The court almost never does that....

The 18 executions that have taken place so far this year have been carried out in just five states — Texas, Missouri, Georgia, Florida and Oklahoma.  Nine of those were in Texas. Twelve states with the death penalty have not had an execution in more than five years. That list includes California and Pennsylvania, which between them have more than 900 death row inmates....

Geographic disparity was among several defects Breyer and Ginsburg identified in June. Another is the length of time many inmates spend living under a sentence of death, which Breyer had previously suggested also might be a violation of the constitutional ban on cruel and unusual punishment.  Six of the 18 men who have been executed in 2015 spent at least 20 years on death row, including one who served 31 years before his execution....

Among the questions surrounding the possibility that the Supreme Court would take up the constitutionality of the death penalty is the makeup of the court itself.  With four justices in their late 70s or early 80s, the next president might have the chance to fill several vacancies and could change the court's direction.

"Obviously, the composition of the court matters greatly and the biggest unknown variable about the life of the American death penalty is the presidential election of 2016.  My expected time frame for constitutional abolition varies greatly based on the result," said Jordan Steiker, a University of Texas law professor....

Steiker said he thinks Breyer's dissent will serve as a road map for death penalty lawyers and future justices who may not feel constrained to wait before grappling with executions. "It was invigorating to those who'd like to see constitutional abolition," he said. "The arguments not new, but they had not been marshaled as effectively by a justice until this opinion."

Critically, Glossip does not preclude Eighth Amendment challenges to various execution protocols, it just makes it somewhat harder for these challenges to prevail.  In addition, states continue to face practical challenges in acquiring execution drugs and often have to deal with with state-level execution administration difficulties.  For those reasons, I am not surprised we have not yet seen a significant post-Glossip up-tick in executions.  

More broadly, unless and until a handful of recently execution-dormant states with sizeable death rows get back in the execution business — states like Alabama, Arizona, California, North Carolina, Ohio and Pennsylvania — it remains likely that more condemned murderers on death rows in the US will die of natural causes than will have their capital punishments actually carried out.

August 10, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Thursday, August 06, 2015

"Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century"

The title of this post is the headline of this new paper just now appearing on SSRN and authored by Meg Beardsley, Sam Kamin, Justin F. Marceau and Scott Phillips. Here is the abstract:

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants.  Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state.

Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution.  Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty.  We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.

August 6, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, August 04, 2015

"Should prison sentences be based on crimes that haven’t been committed yet?"

The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing.  The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes.  As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science.  The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record.  They are now used at some stage of the criminal justice process in nearly every state.  Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself.  A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely.  Those deemed high risk could spend more time behind bars....

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Saturday, August 01, 2015

Notable recent state criminal justice reforms highlighted by Pew

The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years.  These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:

August 1, 2015 in Collateral consequences, Data on sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, July 30, 2015

What accounts for decline in federal white-collar prosecutions (and should we care)?

The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:

Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.

The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.

During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.

The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).

The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.

White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.

July 30, 2015 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, July 23, 2015

"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"

The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.

In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.

My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.

July 23, 2015 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, July 14, 2015

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Sunday, July 12, 2015

"The Economic Perspective on Sentencing"

The title of this post is the title of this article authored by Joshua Fischman recently posted on SSRN. Here is the abstact:

Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious.  This Essay considers what economists have to contribute to the study of sentencing.  One common explanation — that economists’ use of rational choice modeling has applicability to the study of deterrence — does not adequately account for much of the sentencing research that economists are producing.

This Essay considers two alternative explanations.  First, empirical research in both fields is predominately observational.  Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of which have also proved useful in the study of criminal sentencing.  Second, both fields are policy-oriented social sciences.  Methods developed by economists for relating data to theoretical normative constructs, such as surplus and social welfare, have also proven useful in sentencing research, particularly in the study of inter judge disparity.

July 12, 2015 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, July 03, 2015

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Thursday, June 25, 2015

Highlighting the need for much better modern prison metrics

Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:

The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.

Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.

Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.

Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.

Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.

A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....

The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?

Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.

The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.

June 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, June 24, 2015

"A Shrinking Texas Death Row"

The title of this post is the headline of this intriguing new item from the Texas Tribune.  The piece has a series of great interactive charts providing the details on this basic death-penalty data story:

The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.

The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year.  So far this year, nine inmates have been executed.

The main reason is a drop in new death sentences.  In 1999, 48 people were sentenced to Texas death row, according to BJS data.  In 2008, that number was nine — and has stayed in that range ever since.  This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).

Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant.  “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."

Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions.  In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.

But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants.  Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....

Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ.  Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.

Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates.  So far this year, Kase said three death penalty cases have gone to trial.  All have ended with life-without-parole sentences.

June 24, 2015 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission

I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website.  Here is the text of the alert I received (along with relevant links):

Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels.  This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment.  Read the report.

For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”

The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle.  Public comment is due on or before July 27, 2015.  More information

There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,

June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, June 21, 2015

Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"

Alternatives_thumbThe US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.)  Here is how the USSC itself briefly describes its new (data-heavy) document:

As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.

This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging.  In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:

Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...

During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....

In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....

Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range....  Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.

Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....

[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.

In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.

June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 16, 2015

Notable new data and other recent posts from Marijuana Law, Policy and Reform

I am pleased to see that the growing state, national and interenation marijuana reform movement is leading to much more research on marijuana use and law enforcement activities (in Colorado and elsewhere).  I have revently reported on some notable new research at Marijuana Law, Policy and Reform, and here are links to those posts (and a few other recent posts of note): 

June 16, 2015 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Friday, June 05, 2015

"Sex Offender Law and the Geography of Victimization"

The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN.  The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated.  We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.

Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live.  To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders.  We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk.  Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs

Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."

June 5, 2015 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4)

Monday, June 01, 2015

"The Missing Statistics of Criminal Justice"

QuestionmarkThe title of this post is the headline of this interesting commentary by Matt Ford in The Atlantic.  The subheadline sets out its themes: "An abundance of data has fueled the reform movement, but from prisons to prosecutors, crucial questions remain unquantified." Here are excerpts:

After Ferguson, a noticeable gap in criminal-justice statistics emerged: the use of lethal force by the police.  The federal government compiles a wealth of data on homicides, burglaries, and arson, but no official, reliable tabulation of civilian deaths by law enforcement exists....

This raises an obvious question: If the FBI can’t tell how many people were killed by law enforcement last year, what other kinds of criminal-justice data are missing?  Statistics are more than just numbers: They focus the attention of politicians, drive the allocation of resources, and define the public debate.  Public officials — from city councilors to police commanders to district attorneys — are often evaluated based on how these numbers change during their terms in office.  But existing statistical measures only capture part of the overall picture, and the problems that go unmeasured are often also unaddressed. What changes could the data that isn’t currently collected produce if it were gathered?

In one sense, searching for these statistical gaps is like fishing blindfolded — how can someone know what they don’t know? But some absences are more obvious than others. Bruce Western, a professor of sociology at Harvard University, cited two major gaps. One is the racial demography of arrests and criminal records....

There may be many missing statistics from the realm of policing, but even greater gaps lie elsewhere.  Thanks to the FBI’s Uniform Crime Reports, police departments might actually be one of the better quantified parts of the criminal-justice system.  Prisons also provide a wealth of statistics, which researchers have used to help frame mass incarceration in its historical and demographic content.  The Justice Department’s Bureau of Justice Statistics maintains an annual report on the size of the U.S. prison population. The report includes state-by-state demographic statistics like inmate ages, races, crimes committed, and other crucial data for researchers and policymakers.

But while current prison statistics give a good sense of the size and scale of mass incarceration, they provide little information on conditions inside the vast constellation of American prisons.  Perhaps the most glaring gap is solitary confinement.  No one knows exactly how many people are currently kept in isolation in American prisons. “There are estimates, but no official count nationwide,” Western said....

Another major gap in prison statistics is the number of non-sexual assaults behind bars. Although Congress mandated the collection of sexual assault statistics with the Prison Rape Elimination Act in 2002, prisons are not required to report ordinary assaults to the Bureau of Justice Statistics....

Prisons and police departments may be the most visible parts of the criminal-justice system, but they are not necessarily the most powerful.  As judges lost flexibility with the growth of mandatory-minimum sentences during the tough-on-crime era, prosecutors became the most pivotal actors within the criminal-justice process.  This rise in influence was matched with a decline in transparency.  “Up until the late 1980s and early 1990s, we used to collect more data — not a whole lot of data, but more data — on what prosecutors do,” [Professor Marie] Gottschalk explained.  “[Now] the police are certainly much more accountable than prosecutors are, in terms of the visibility of what they do and the transparency of what they do.”

One prosecutorial tool with little transparency is plea dealing.  In 2013, more than 97 percent of all federal criminal charges that weren’t dismissed or dropped were resolved through plea deals.  (State-by-state totals are incomplete or unavailable, but often estimated to be similarly high.)  For prosecutors, the benefits are clear: Offenders are punished without expending manpower and resources in lengthy trials.  But plea deals are also one of the least-scrutinized parts of the criminal-justice system.  “In most cases, that’s a complete black box,” Gottschalk said.  “It allows prosecutors to have this enormous power without much transparency to the public.”

In the absence of reliable statistics, anecdotal evidence often fills the void. This is especially true when studying racial bias in the prosecutorial process.  Prosecutors are not required by law to compile data on racial disparities.  They also have little incentive to gather and publish it voluntarily, partly because of resource constraints and partly because of its potential negative implications.

A small number of offices have sought answers nonetheless, often with troubling results.  In 2011, Manhattan District Attorney Cyrus Vance invited the Vera Institute to examine his office’s internal records for evidence of racial disparities.  The institute’s final report found that disparities plagued every step of the process.  Among its findings: Black and Hispanic defendants were more likely to be offered plea deals on misdemeanors that included imprisonment than white and Asian defendants.  Would similar reviews of prosecutors’ offices nationwide produce similar results?...

This data’s absence shapes the public debate over mass incarceration in the same way that silence between notes of music gives rhythm to a song.  Imagine debating the economy without knowing the unemployment rate, or climate change without knowing the sea level, or healthcare reform without knowing the number of uninsured Americans. Legislators and policymakers heavily rely on statistics when crafting public policy. Criminal-justice statistics can also influence judicial rulings, including those by the Supreme Court, with implications for the entire legal system.

Beyond their academic and policymaking value, there’s also a certain power to statistics. They have the irreplaceable ability to both clarify social issues and structure the public’s understanding of them.  A wealth of data has allowed sociologists, criminologists, and political scientists to diagnose serious problems with the American criminal-justice system over the past twenty years.  Now that a growing bipartisan consensus recognizes the problem exists, gathering the right facts and figures could help point the way towards solutions.

June 1, 2015 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, May 28, 2015

Newt Gingrich and Van Jones lament treatment of mentally ill in US criminal justice system

CNN has this notable new commentary authored by the notable twosome of Newt Gingrich and Van Jones headlined "Mental illness is no crime." Here are excerpts:

Today, mentally ill Americans are disproportionately more likely to be arrested, incarcerated, suffer solitary confinement or rape in prison and commit another crime once released.

Quick: Name the largest provider of mental health care in America. If you guessed "our prisons and jails," you would be right. A 2006 U.S. Department of Justice study found that three out of four female inmates in state prisons, 64% of all people in jail, 56% of all state prison inmates and 45% of people in federal prison have symptoms or a history of mental disorder.

America's approach when the mentally ill commit nonviolent crimes -- locking them up without addressing the problem -- is a solution straight out of the 1800s.

When governments closed state-run psychiatric facilities in the late 1970s, it didn't replace them with community care, and by default, the mentally ill often ended up in jails. There are roughly as many people in Anchorage, Alaska, or Trenton, New Jersey, as there are inmates with severe mental illness in American prisons and jails, according to one 2012 estimate. The estimated number of inmates with mental illness outstrips the number of patients in state psychiatric hospitals by a factor of 10.

Today, in 44 states and the District of Columbia, the largest prison or jail holds more people with serious mental illness than the largest psychiatric hospital. With 2 million people with mental illness booked into jails each year, it is not surprising that the biggest mental health providers in the country are LA County Jail, Rikers Island in New York and Cook County Jail in Chicago.

Our system is unfair to those struggling with mental illness.  Cycling them through the criminal justice system, we miss opportunities to link them to treatment that could lead to drastic improvements in their quality of life and our public safety.  These people are sick, not bad, and they can be diverted to mental health programs that cost less and are more effective than jail time. People who've committed nonviolent crimes can often set themselves on a better path if they are provided with proper treatment....

A new initiative, "Stepping Up," unites state and local governments and the American Psychiatric Foundation to promote research-based practices to tackle our overreliance on jail as mental health treatment, such as in-jail counseling programs that reduce the chances of repeat offenders.

State and local officials have shown us the way.  We've seen large communities such as Miami-Dade County, Florida, completely redesign their systems at every level, training police officers in crisis intervention, instituting careful assessments of new jail admissions and redirecting their mentally ill populations into treatment, effectively reducing the rates of re-arrest....

Perhaps most surprisingly in these partisan times, Republicans and Democrats in Congress are standing shoulder-to-shoulder to support mental health reform.  The bipartisan Comprehensive Justice and Mental Health Act, co-sponsored by Sen. Al Franken, D-Minnesota, and Sen. John Cornyn, R-Texas, in the Senate, passed unanimously out of the Senate Judiciary Committee earlier this month. The legislation includes simple measures that would fund alternatives to jail and prison admissions for those in need of treatment and expand training programs for law enforcement personnel on how to respond to people experiencing a mental health crisis.

The notion of bipartisan, comprehensive criminal justice reform is not just idle talk.  It is happening.  Both sides see practical alternatives to incarceration that can reduce prison populations, improve public safety, save lives and save money.  If Congress moves swiftly to pass the great ideas now percolating in the House and Senate, it will become a reality. Take it from a conservative and a liberal: A good place to start is by addressing the needs of our mentally ill citizens in jails and prisons.

May 28, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, May 22, 2015

"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"

The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:

For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.

I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.

Here is some of what she goes on to say about this very interesting topic:

While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established).  There is a trend toward sexual contact with teenage males.  Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.

In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.

Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped.  Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty.  Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.

Of course, I don’t condone this behavior in the least.  I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.

Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men.  Treatment providers aren’t given special instruction in dealing with women.  The treatment programs are written for men, using statistics about male offenders and past treatment models of men.  Imagine!  Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.

At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders.  This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work.  But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.

A lack of evidence should never be the reason for poor rehabilitation.  It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future.  When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon.  By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.

Research about recidivism rates is also based primarily on male populations and varies drastically.  Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all.  But since the law doesn’t differentiate among sex offenders, these studies are nearly useless.  A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child.  The lumping-together of sex offenses creates confusion even while it feeds public hysteria....

Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment.  It does nothing to address the complex emotional choices that led people to their crimes.  Rather, the justice system beats down already hurting women.

May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Thursday, May 14, 2015

"Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007"

The title of this post is title of this interesting federally funded empirical research. Here is the abstract:

Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime.  But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances.  The United States Supreme Court has treated burglary as either violent or non-violent in different cases.

This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence.  Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence.

A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it.  Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime.

May 14, 2015 in Data on sentencing, Offense Characteristics | Permalink | Comments (2) | TrackBack

Friday, May 08, 2015

"Have Texans lost their taste for capital punishment?"

The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:

I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.

A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.

I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.

In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”

A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.

And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.

May 8, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, May 04, 2015

Fairer capital fight has Virginia prosecutors fighting for the death penalty less

As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:

A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.

Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.

Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.

Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.

"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."

It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.

A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."

Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.

UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.

May 4, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, April 20, 2015

New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences

The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015.  Here are links to these two new data runs:

First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)

Final FY14 Quarterly Sentencing Update (Published April 20, 2015)

I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014.   Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges. 

Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%.  In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.

But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update.   I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going).  But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.

For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data.  But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.

April 20, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 17, 2015

US Sentencing Commission releases data report on illegal reentry offenses

Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:

This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases.  Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines.  In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases.  As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.

Part I of this report summarizes the relevant statutory and guideline provisions.  Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles.  Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases.  Part IV presents key findings.

Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.

In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations.  The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.

April 17, 2015 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0) | TrackBack