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.
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.
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.
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.
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.
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.
Sunday, April 12, 2015
"Ending the Death Lottery"
The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:
When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.
This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.
After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.
Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.
Monday, March 30, 2015
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
Monday, March 23, 2015
Why passage of Prop 47 ensures California remains a hot topic in sentencing and corrections reform
This terrific new bit of reporting at The Crime Report, headlined "Prop 47: The Stormy Aftermath," details why California remains a kind perfect storm for those interesting in studying hot topics in the debates over modern sentencing reforms and the relationship between incarceration and crime. Here are excerpts from the piece:
California’s Proposition 47, passed in a referendum last November, set in motion a dramatic reversal of the state’s approach to mass incarceration. The law changed six of California’s low-level offenses from felonies to misdemeanors, and made eligible for resentencing hundreds of thousands of individuals convicted of those crimes.
Not surprisingly, it has drawn the attention of policymakers and law enforcement authorities from across the country — some of it controversial.
“This was such a big fix — being able to go from felony to misdemeanor,” said Lenore Anderson, executive director of Californians for Safety and Justice — an advocacy group that spearheaded the referendum campaign. “We’re engaging in a lot of dialogue about how to change practices, how to put a priority on public safety without relying on over-incarceration.”
But how will success or failure be measured? Four months later, the answer is still not clear — but criminal justice practitioners and advocates contacted by The Crime Report suggest that the passionate debate it fueled is only just beginning.
At a session last month at the John Jay College of Criminal Justice in New York City, Anderson told criminal justice practitioners and advocates that thousands of prisoners have been resentenced and released since Proposition 47 passed with nearly 60 percent of California voters approving the measure. The move should ultimately free up police, court and prison resources to focus on more serious violent crimes, she said....
Critics of the measure, however, warned that letting people out of jail, and removing the threat of felony charges, would lead to an increase in crime and compromise public safety. Their argument appeared to receive some support when the Los Angeles Times reported on February 21 that narcotic arrests in the city declined significantly after voters approved the bill — while property crimes increased. The story also noted: “some criminal justice experts caution against drawing conclusions.”...
One criminologist who isn’t a fan of the early assessments of Proposition 47’s impact on crime is Barry Krisberg, a Senior Fellow of the Earl Warren Institute at the University of California Berkeley Law School — and an occasional contributor to The Crime Report. “This alleged increase in property crimes, I’m not believing it,” he said in an interview. “That information isn’t even officially produced yet; it’s based on police counts, which are often inaccurate.”...
Former San Diego Police Chief Bill Landsowne, who retired in March 2014, says law enforcement organizations — in particular the state’s Police Chiefs, Sheriffs' and District Attorneys associations — are responsible for orchestrating a media push to discredit Proposition 47. “As a sitting chief it would have been very difficult for me to advocate for Prop 47,” Landsowne, a proponent of the referendum, told The Crime Report. “You don’t want to be an outlier in the process, you want to be tough. But police know we need more treatment options in the system."...
To criminologist Eugene O’Donnell a former New York City police officer, the mixed early statistical returns — and the debate surrounding them — is not surprising. “It’s absolutely premature, you can’t just snap your fingers and fix a complicated problem,” O’Donnell, a professor at John Jay College, said. “This is going to be something that has a long-term impact; trying to make a 60-day assessment is impossible.”
Tuesday, March 17, 2015
Notable empirical review of what happens to most death sentences
This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:
If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts. In fact, the most common circumstance is that the death sentence will be overturned....
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
- 8,466 death sentences were imposed across the United States from 1973 through 2013.
- 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
- 2,979 remain on death row as of Dec. 31, 2013.
- 1,359 were executed.
- 509 died on death row from suicide or natural causes.
- 392 had their sentence commuted by the governor to life in prison.
- 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....
In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....
The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.
I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.
In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013. Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period. Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.
Friday, March 06, 2015
Examining some statistical realities behind federal death penalty administration
This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:
As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree. Between 1989 and 2009, some 2,795 cases were eligible for the death penalty. Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel. In the vast majority of the 262 cases, the juries recommended a life sentence instead.
Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial.... [And] the federal government rarely pursues it even in cases that are eligible. The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....
Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row. Only three people have been executed since 1977, the latest in 2001. Some defendants have been waiting on death row for over 20 years.
Tuesday, February 24, 2015
"Can prisons predict which inmates will commit more crimes?"
The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:
States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.
These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.
Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.
Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.
Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.
"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....
The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.
Friday, February 13, 2015
"Pick a stat, any stat. They all tell you the same thing: America is really good at putting people behind bars."
The title of this post is a line from the start of this detailed analysis of incarceration rates and crime by Oliver Roeder, a senior writer for FiveThirtyEight. The piece merits a full read, and here are excerpts from the start and end of the piece:
There are 2.3 million Americans in prison or jail. The U.S. has 5 percent of the world’s population but 25 percent of its prisoners. One in three black men can expect to spend time in prison. There are 2.7 million minors with an incarcerated parent. The imprisonment rate has grown by more than 400 percent since 1970.
It’s supposed to help the country reduce crime in two ways: incapacitation — it’s hard to be a habitual offender while in prison — or deterrence — people scared of prison may do their best to not end up there. But recent research suggests that incarceration has lost its potency. A report released this week from the Brennan Center for Justice at the New York University School of Law finds that increased incarceration has had a very limited effect on crime over the past two and a half decades. At incarceration’s current elevated levels, the effect of more incarceration on crime is not statistically different than zero. It’s no longer working....
[C]rime trends are complicated. Surely no one is complaining about the recent decline, but no one fully understands it either. One thing is becoming clear: Increased incarceration’s role was minimal.
Recent related post:
Thursday, February 12, 2015
New Brennan Center report asks "What Caused the Crime Decline?"
This press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?". This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:
Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law. In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings:
Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.
State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.
Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.
During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars. During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.
“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder. “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”
“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary. “The prison explosion has been very expensive. A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”
“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword. “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”
Sunday, February 08, 2015
Highlighting the role of prosecutorial activity in modern mass incarceration
I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration. The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:
Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high. It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012. But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.
What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place. Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be. If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.
In a conversation with Slate, Pfaff explains his theory....
Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.
A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.
Q: Why would that be?
What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.
As regular readers likely know, I am a big fan of John Pfaff's research. Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities. (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)
That said, in part because John's analysis is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges." In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year. But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s. These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."
In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system. But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted. (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)
My point here is not to assert that John's data analysis is misguided or inaccurate in any way. But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights. And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.
Prior posts about Prof. John Pfaff's important research:
- A systematic examination of prison growth (from 2007)
- Assessing the reality of modern prison growth (from 2009)
- A data-based exploration of prison growth and the drug war (from 2013)
- The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report (from 2014)
- "The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options" (from 2014)
February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, January 11, 2015
"An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State"
The title of this post is the title of this lengthy new research study produced by a group of folks at Seattle University. Helpfully, this Seattle Times article, headlined "Seeking death penalty adds $1M to prosecution cost, study says," provides a summary of some of its findings:
Seattle University has released the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought....
Criminal-justice professor Peter Collins called the study one of the nation’s most “rigorous” examinations of the costs associated with the death penalty. Collins said he wasn’t surprised by the price difference. “I don’t know who coined this term, but this is social science supporting common sense,” he said on Tuesday. “I wasn’t surprised because there was so much anecdotal and other evidence that we’re spending money on these cases.”
In the study, Collins and three other professors reviewed 147 aggravated first-degree murder cases filed in Washington state since 1997, according to the study. They found the average cost of a death-penalty prosecution and conviction is just over $3 million. Not seeking a death-penalty prosecution and sending a person to prison for life costs the state roughly $2 million.
“What this provides is evidence of the costs of death-penalty cases, empirical evidence,” Collins said. “We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.”
The study was funded by a grant from the American Civil Liberties Union of Washington Foundation. Seattle University School of Law professor Bob Boruchowitz, the former head of one of King County’s top public-defense agencies, said that “as far as I know this is the only study of its kind in the country that combines the perspective of social scientists with capital [death penalty] qualified lawyers.”...
The study’s authors point to a rise in costs in death-penalty cases. Starting this month, two of three defendants charged in King County with aggravated murder will have their death-penalty trials begin. The prosecution and defense costs in the three cases have cost King County more than $15 million, according to figures supplied by county officials....
The future of the death penalty in Washington remains unclear. Last February, Gov. Jay Inslee issued a moratorium on the death penalty while he is in office.
Wednesday, December 31, 2014
Big 2014 data (and big 2015 plans?) from US Sentencing Commission
The United States Sentencing Commission has closed out 2014 with a release of lots of notable new sentencing data and notice of an notable meeting to kick off 2015. Here are the data basics/links and the meeting notice via the USSC website:
Final Crack Retroactivity Data Report: This report is the final data report concerning motions for retroactive application of Amendment 750, incorporating the provisions of the Fair Sentencing Act of 2010 into the guidelines.
Notice of Public Meeting: January 9, 2015: The Commission will hold a public meeting to vote on publishing proposed guideline amendments. A presentation will also be given on economic crime.
There are lots of notable stories to be found in these data (and to be anticipated with the USSC's noticed meeting). But most notable, I think, is the quarterly report showing that for all of Fiscal Year 2014 only 46.3% of sentences were imposed within the calculared guideline range and in the final quarter of FY2014 only 43.6% of sentences were within-guideline sentences. in other words, throughout 2014, a non-guideline sentence became more the norm in federal sentencing than a within-guideline sentence.
Critically, these data are surely skewed significantly by the decision by the US Sentencing Commission in January 2014 to lower drug guideline sentences across the board by two levels (combined with the Justice Department's willingness to allow sentencing judges to give effect to the lowered guidelines before they took effect officially on November 1, 2014). Now that the lowered guidelines are officially in place, we might expect to see more within-guideline sentence imposed in FY 2015. But, if the US Sentencing Commission announces in its early 2015 another significant amendment to reduce certain guideline ranges, this pattern could repeat.
In other words, happy data new year from (and to) my favorite judicial branch agency.
"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"
The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.
The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.
Sunday, December 21, 2014
"U.S. Incarceration: Still Mass; The shrink-the-prisons movement hasn’t moved the numbers."
New Bureau of Justice Statistics figures out this morning measured a slight decrease — about half of a percent — in the number of adults incarcerated in the United States last year. The decline comes from a drop in inmates of local jails. The number of people in local jails last year fell by almost 2 percent — to 731,200. At the same time, despite a growing national concern with the costs and consequences of mass incarceration, the number in prisons grew a tiny bit, one-third of a percent from the previous year, to 1,574,700.
The increase in the prison population comes entirely from state facilities — reversing a three-year downward trend. The number of inmates in federal prisons actually declined for the first time since 1980.
There are real lives behind these numbers: every percentage point accounts for approximately 22,200 people. But the rate of change is almost negligible. If the nation’s incarcerated adult population continued to decrease at this pace, it would take 215 years — until 2228 — to drop below the number of adults incarcerated in 1985.
Looking at changes over the long term, the number of inmates in jails and prisons is down from 2010, but remains up more than 14 percent from what it was at the turn of the century.
Recent related post: