Wednesday, February 14, 2018

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Saturday, February 10, 2018

New Utah death penalty study may add momentum to repeal efforts

This local article, headlined "New study of Utah’s use of the death penalty suggests life without parole costs less, prompts another call to abolish capital punishment," reports on a new report which could help jump start efforts to abolish the death penalty in the Beehive State.  Here are the details and some context:

A group of Utah attorneys, advocates and state staff have spent the last year studying the state’s death penalty. The working group, created by Utah’s Commission on Criminal and Juvenile Justice, examined several areas, including costs, aggravating factors and public attitude.  The CCJJ report, released Friday [and available here], noted there were “fundamental difficulties inherent in analyzing death penalty policy.” The group did not make any recommendations or proposed changes to Utah’s current capital punishment system.

But a group called Utah Conservatives Concerned about the Death Penalty said the report shows that a significant amount of money has been spent seeking death sentences without much in return.  They called on lawmakers to abolish capital punishment in Utah. “This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible,” director Kevin Greene said in a statement. “... The millions of dollars that we have been wasting on the death penalty should either be returned to the taxpayers in the form of a tax cut or used for crime prevention or to help victims of crime.”

Here’s what the study found:

Cost estimates for the price of the death penalty in Utah are limited, the group noted. Legislative analysts in 2012 estimated that a death sentence and decades of appeals costs $1.6 million more than a life-without-parole sentence. Another more recent report estimated that Utah and its counties have spent almost $40 million to prosecute the 165 death-penalty eligible cases that have been filed in the last two decades. Only two cases in that time have resulted in a death sentence....

Utah currently has over 60 aggravating factors in the homicide law that allow prosecutors to seek the death penalty — and state lawmakers are contemplating adding even more. At a recent legislative hearing, some expressed concern that Utah may have too many crimes that qualify for the death penalty, and that an appeals court could torpedo the capital punishment law for being too broad. In the CCJJ report, the group noted that they could not come to an agreement about whether the number of aggravating factors should be limited. They noted that most states rarely remove aggravating factors — and instead have been adding more through the years.

The working group looked at several polls about Utahns’ attitude toward the death penalty, noting that there have been conflicting results. Two polls showed Utahns support the death penalty, while two others showed less support for execution in favor of life-without-parole sentences. The group concluded it was “probably reasonable to suggest simply that public support for the death penalty in Utah is declining over previous highs.”

Utah legislators came close to outlawing the death penalty in 2016 — but the bill never reached the House floor before the midnight deadline on the last night of session. Criminal justice reforms groups have said another push to end capital punishment in Utah is likely during this legislative session — though a bill to abolish it has not yet been public.

Since 2010, Utah prosecutors have filed 119 aggravated murder cases, according to Utah court data. Such cases can result in punishments of 25 years to life, life in prison without the possibility of parole, or death. Only one of those cases — a retrial of a 1993 case — resulted in a death sentence.

Of the nine men currently on Utah’s death row, two were originally convicted as long ago as 1985. All but one of the rest were convicted before 1999, although one case was retried in 2015 and resulted in a second capital murder conviction.  All nine have ongoing appeals underway in state or federal court.

The last execution was carried out in 2010, when Ronnie Lee Gardner was executed by firing squad for the 1984 murder of Michael Burdell, a Salt Lake City lawyer, during Gardner’s failed escape attempt from the 3rd District courthouse.

Notably, in the not too distant past, a significant number of states abolished the death penalty formally or functionally.  As reflected in this DPIC page, from 2007 through 2013, New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland became abolitionist states.  Since 2013, the only significant legislative action on this front took place in Nebraska; but the death penalty repeal passed by state senators in 2015 was rejected by voters in a 2016 referendum. In light of this recent history, I think it would be a pretty big deal if abolition efforts picked up steam in Utah.

February 10, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

Friday, February 09, 2018

Lamenting latest data on how federal Bureau of Prisons administers its compassionate release program

This new press release from Families Against Mandatory Minimums, headlined "New Data Reveals BOP Still Neglecting Compassionate Release," reports on the release of new data about a notable piece of federal prison law and administration. Here is much of the full release (with links from the original):

FAMM (Families Against Mandatory Minimums) President Kevin Ring today commented on the release of new data related to the Federal Bureau of Prisons’ (BOP) compassionate release program. Last August, 12 U.S. senators wrote to the BOP seeking information on the number of individuals who were granted early release pursuant to the program. In its response dated January 16, the BOP revealed that the agency has granted a mere 306 petitions while denying more than 2,400 over the past four years.  Prisoners facing unimaginable circumstances wait an average of 4.7 to 6.5 months for a response, and 81 prisoners died while waiting for an answer.

“We are disappointed but not surprised,” Ring said. “Even as interest in prison reform grows, we find that the BOP is not using its authority to reduce the number of low-risk, high-cost individuals in federal prisons. This failure hurts families and taxpayers without improving public safety.

“The fact that 81 individuals died waiting for a response to their petitions for compassionate release is a moral outrage. We as a country can do better than this. Congress should act now to streamline the process and inject some common sense and dignity to this program,” Ring said.

FAMM has been a longtime advocate for expanding federal and state compassionate release programs, which authorize early release for prisoners facing extreme circumstances, such as a terminal or age-related illness. Last year, FAMM helped to establish the Campaign for Compassionate Release, a coalition of diverse organizations who support the creation, expansion, and robust use of compassionate release.

February 9, 2018 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, February 08, 2018

"Mass Incarceration and Its Discontents"

The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology.  Here is how the essay gets started:

The contours of mass incarceration are, by now, broadly familiar.  The U.S. incarceration rate began an unprecedented ascent in the 1970s.  This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016).  The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015).  By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).

The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research.  A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion.  Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color.  Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction.  And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.

Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform.  Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted.  The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts.  In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact.  In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.

February 8, 2018 in Data on sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (12)

Wednesday, February 07, 2018

"Event dependence in U.S. executions"

The title of this post is the title of this new empirical paper authored by Frank Baumgartner, Janet M. Box-Steffensmeier and Benjamin Campbell.  Here is the abstract:

Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties.  The number of executions across counties appears to fit a stretched distribution.  These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event.  To examine these processes, we employ two-pronged empirical strategy.  First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model.

Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing.  Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently.  This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.

February 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (3)

Thursday, February 01, 2018

"Mass Incarceration: New Jim Crow, Class War, or Both?"

The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:

Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration.  My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison.  After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....

This study takes a careful account of class and how it relates to race and incarceration rates.  Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders.  The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable.  The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.

To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race.  It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways.  For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education.  These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.

On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.

February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, January 31, 2018

"Focused Deterrence Strategies and Crime Control"

The title of this post is the title of this new article in the latest issue of Criminology & Public Policy authored by Anthony Braga, David Weisburd and Brandon Turchan. Here is its abstract:  

Research Summary

Focused deterrence strategies are increasingly being applied to prevent and control gang and group-involved violence, overt drug markets, and individual repeat offenders.  Our updated examination of the effects of focused deterrence strategies on crime followed the systematic review protocols and conventions of the Campbell Collaboration.  Twenty-four quasi-experimental evaluations were identified in this systematic review.   The results of our meta-analysis demonstrate that focused deterrence strategies are associated with an overall statistically significant, moderate crime reduction effect.  Nevertheless, program effect sizes varied by program type and were smaller for evaluations with more rigorous research designs.

Policy Implications

The available empirical evidence suggests these strategies generate noteworthy crime reduction impacts and should be part of a broader portfolio of crime reduction strategies available to policy makers and practitioners.  Investments still need to be made, however, to strengthen the overall rigor of program evaluations and improve our understanding of key program activities associated with observed crime reduction impacts.

Those unfamiliar with "Focused deterrence strategies" may want to check out this Crime Solutions webpage discussing the concept starting with this description:

Focused deterrence strategies (also referred to as “pulling levers" policing) are problem-oriented policing strategies that follow the core principles of deterrence theory.  The strategies target specific criminal behavior committed by a small number of chronic offenders who are vulnerable to sanctions and punishment.  Offenders are directly confronted and informed that continued criminal behavior will not be tolerated.  Targeted offenders are also told how the criminal justice system (such as the police and prosecutors) will respond to continued criminal behavior; mainly that all potential sanctions, or levers, will be applied.  The deterrence-based message is reinforced through crackdowns on offenders, or groups of offenders (such as gang members), who continue to commit crimes despite the warning.  In addition to deterring violent behavior, the strategies also reward compliance and nonviolent behavior among targeted offenders by providing positive incentives, such as access to social services and job opportunities.

January 31, 2018 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Top Trends in State Criminal Justice Reform, 2017"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision.  More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole.  Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration.  Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction.  This briefing paper describes key reforms undertaken in 2017.

SENTENCING REFORMS

Lawmakers in several states enacted reforms to reduce the number of persons in prison and improve fairness in the criminal justice system.  Most notably, Louisiana authorized legislation, Senate Bill 139, which expanded probation eligibility to people convicted of third-time nonviolent offenses and first-time low-level violent offenses. The bill also expanded eligibility for treatment alternatives and drug courts.  The state amended parole practices, including lowering time served requirements before parole consideration, and authorized parole consideration for those sentenced to life at a time when their offense-type qualified for parole.  Other states — Arkansas, Hawaii, Michigan, and Montana — adopted a range of reforms, including expanding probation eligibility, reclassifying low-level felonies to misdemeanors, streamlining parole review mechanisms, and limiting prison admissions for technical violations.

January 31, 2018 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Saturday, January 27, 2018

"Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana"

Download (6)The title of this post is the title of this short interesting document produced by the Campaign for the Fair Sentencing of Youth. I recommend the whole document, and here are excerpts (with endnotes removed):

On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.

When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since Montgomery was decided, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform.

More than 250 individuals previously serving life without parole for crimes committed as children are now free.  Collectively, they have served thousands of years in prison. These former juvenile lifers now have the chance to contribute meaningfully to their communities....

Henry Montgomery, the petitioner in Montgomery v. Louisiana, remains incarcerated.  The U.S. Supreme Court recognized Mr. Montgomery’s “evolution from a troubled, misguided youth to a model member of the prison community.” Montgomery was resentenced and is now eligible for parole, but because of delays at the parole board and prosecutor opposition, the 71-year-old remains in prison, where he has been since 1963.

Children of color are disproportionately sentenced to life without parole.  When Montgomery was decided, over 70 percent of all individuals serving JLWOP were people of color. These extreme disparities have persisted during the resentencing process following Montgomery, underscoring the racially disparate imposition of JLWOP....

For the approximately 1,300 individuals whose unconstitutional JLWOP sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility. This means that most individuals who were unconstitutionally sent to die in prison as children will not be eligible for review or release until at least their 40s. Although Montgomery suggested that providing review after 25 years is an avenue for minimal compliance with Miller, these lengthy sentences continue to violate international human rights standards and far outstrip terms of incarceration for youth in the rest of the developed world.

UPDATE: A helpful tweet led me to think this is a good place to note that the Juvenile Sentencing Project has lots of great juve LWOP/Graham and Miller resources detailing responsive legislation and significant state case law and leading reseach reports.  That Project also helps maintain this great national map that enables one to see how many juve LWOP prisoners were in each state at the time of Miller and now.

January 27, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Wednesday, January 24, 2018

Notable new initiative, Safe Streets & Second Chances, taking "evidence-driven approach to the chronic issues of recidivism"

Sssc_socialAs reported in this new article from The Hill, the "donor network helmed by billionaire brothers Charles and David Koch is putting $4 million behind a pilot program aimed at reducing recidivism rates among former prisoners." Here is more: 

The effort, called Safe Streets and Second Chances, launches Wednesday in four trial states — Texas, Florida, Pennsylvania and Louisiana.  The 1,000 participants will come from a mix of rural and urban communities and will receive “individualized reentry” programs and have their progress tracked.

The program is led by the Texas Public Policy Foundation and Dr. Carrie Pettus-Davis, an author and professor who says the U.S. prison system is focused too much on punishment and not enough on rehabilitation.

“This unique initiative marries research-driven policy and reentry services reforms,” Pettus-Davis said in a statement.  “Even though incarceration and reentry impacts millions of people’s lives in our country, there is a huge void in research on creating a successful transition of people from prison back home to our communities. We’re closing the gap.”

The webpage announcing the launch of the new Safe Streets & Second Chances initiative provides this additional information:

Today, a new initiative is being launched to reduce the high rate of recidivism by effectively rehabilitating and equipping incarcerated individuals with the tools they need to return home and become productive members of our communities. Called Safe Streets & Second Chances, the new effort uses proven approaches underpinned by academic research to develop comprehensive reentry activities for those releasing from prison to ensure they are successful once home in our communities.

Nearly 700,000 Americans will be released from prison this year, yet close to 70 percent of them are expected to return to prison within five years. This alarmingly high rate of recidivism endangers America’s communities, traps individuals — many of them non-violent offenders — in a cycle of incarceration, and costs taxpayers billions of dollars each year. It’s a problem largely due to criminal justice policies that focus on punishment, but too often fail to implement effective interventions that correct people both in prison and upon release.

Safe Streets & Second Chances takes an evidence-driven approach to the chronic issues of recidivism. This initiative crafts individualized reentry approaches informed by the latest academic research to shift the outcome focus of our criminal justice system from whether individuals are punished to whether they are improved, rehabilitated, and capable of redemption.

Led by author and renowned scholar Dr. Carrie Pettus-Davis, the research component of the new effort will include a four-state, eight-site, randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities. The four states being examined include Florida, Texas, Pennsylvania and Louisiana.

DISCLOSURE: As detailed in this prior post, the new Drug Enforcement and Policy Center (DEPC) I am helping to get started at The Ohio State University Moritz College of Law was made possible by a gift from the Charles Koch Foundation.

January 24, 2018 in Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Sunday, January 21, 2018

"Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona"

The title of this post is the title of this new paper authored by John Lott available via SSRN that a helpful reader made sure I did not miss.  For a host of reasons, John Lott is a controversial empiricist, and this latest paper could surely stir up some new controversies.  Here is its abstract:

Using newly released detailed data on all prisoners who entered the Arizona state prison from January 1985 through June 2017, we are able to separate non-U.S. citizens by whether they are illegal or legal residents. Unlike other studies, these data do not rely on self-reporting of criminal backgrounds. Undocumented immigrants are at least 142% more likely to be convicted of a crime than other Arizonans. They also tend to commit more serious crimes and serve 10.5% longer sentences, more likely to be classified as dangerous, and 45% more likely to be gang members than U.S. citizens. Yet, there are several reasons that these numbers are likely to underestimate the share of crime committed by undocumented immigrants. There are dramatic differences between in the criminal histories of convicts who are U.S. citizens and undocumented immigrants.

Young convicts are especially likely to be undocumented immigrants. While undocumented immigrants from 15 to 35 years of age make up slightly over two percent of the Arizona population, they make up about eight percent of the prison population. Even after adjusting for the fact that young people commit crime at higher rates, young undocumented immigrants commit crime at twice the rate of young U.S. citizens. These undocumented immigrants also tend to commit more serious crimes.

If undocumented immigrants committed crime nationally as they do in Arizona, in 2016 they would have been responsible for over 1,000 more murders, 5,200 rapes, 8,900 robberies, 25,300 aggravated assaults, and 26,900 burglaries.

January 21, 2018 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (6)

Thursday, January 18, 2018

New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"

F1.mediumThis notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism."  Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

A few (of many) prior related posts on risk assessment tools:

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

"Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices"

The title of this post is the title of this notable new report recently released by the Stanford Criminal Justice Center and authored by Katherine Moy, Dennis Martin, and David Alan Sklansky. Here is its executive summary:

Local prosecutor elections can have uniquely consequential results for the American criminal justice system. Paradoxically, however, these elections attract much less voter engagement than other races, and incumbents are repeatedly re-elected.  As a result, activists seeking to convince prosecutors to pursue reforms, or to elect new reform-minded prosecutors, have a hard time communicating just how well a given office is performing.

A prosecutorial rating system is one approach to remedying this information gap. Much like indices used in other public policy areas, such a rating system could be a critical way of communicating to voters and potential electoral challengers whether a prosecutors’ office has effectively pursued the electorate’s policy priorities.

This report begins to chart a path toward building such a rating system.  Drawing on the expertise of experienced public policy index developers, the report outlines a procedure that developers can follow to design and build their own scorecard.  The process described in the report involves several stages, during which developers will need to grapple with key policy and logistical issues.

Although the contours of the process are flexible, the report lays out the following steps to developing a prosecutorial rating system:

1) Gather key personnel and experts and set project benchmarks.

2) Define the index’s goals and target audience, including any intermediaries that might be enlisted to convey the index’s message.

3) Select the variables the index will use to measure performance and decide how much weight to attribute to each variable.

4) Gather data for each variable, including any proxy measurements to use where direct data is unavailable.

5) Aggregate and normalize the data in a coherent, rigorous, digestible format.

6) Disseminate and build support for the index.

Each of these stages involves complex decisions, many of which may need to be revisited throughout the development process. But walking through each of the stages methodically can help highlight areas of dispute and place in a broader procedural context.  By keeping the index’s overall goals in mind as they work through the minute details of each stage, developers are more likely to be able to create a successful index to help meet their reform objectives. 

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, January 17, 2018

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Friday, January 12, 2018

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, January 10, 2018

BJS releases "Prisoners in 2016" reporting another drop in state and federal prison populations in 2016

As reported in this press release, the "number of prisoners in state and federal correctional facilities fell by 1 percent from year-end 2015 to 2016, the Bureau of Justice Statistics announced today. This was the third consecutive year that the U.S. prison population declined." here is more from the release:

State and federal prisons held an estimated 1,505,400 prisoners in 2016, 21,200 fewer than in 2015. The population of the Federal Bureau of Prisons (BOP) accounted for more than a third (34 percent) of the total change in the prison population, dropping by 7,300 prisoners, from 196,500 to 189,200 prisoners. Although the overall prison population decreased, the number of prisoners held in private facilities increased 2 percent in 2016

State and federal prisons admitted 2,300 fewer prisoners in 2016 than in 2015. The BOP accounted for the majority (96 percent) of the decline, down 2,200 admissions.

More than half (54 percent) of state prisoners were serving sentences for violent offenses at year-end 2015, the most recent year for which data were available. Nearly half (47 percent) of federal prisoners had been sentenced for drug offenses as of Sept. 30, 2016, the most recent date for which federal offense data were available. More than 99 percent of those drug sentences were for trafficking.

In 2016, the rate at which people were sentenced to more than one year in state or federal prison (imprisonment rate) was the lowest since 1997. There were 450 prisoners per 100,000 U.S. residents held in state and federal prisons in 2016, compared to 444 prisoners per 100,000 in 1997.

The imprisonment rate decreased for non-Hispanic adult black, non-Hispanic adult white and adult Hispanic prisoners from 2015 to 2016. The rate of imprisonment decreased 4 percent for black adults (from 1,670 to 1,608 per 100,000), 2 percent for white adults (from 281 to 274 per 100,000) and 1 percent for adult Hispanic prisoners (from 862 to 856 per 100,000).

During the decade between 2006 and 2016, the rate of imprisonment decreased 29 percent for black adults, 15 percent for white adults and 20 percent for Hispanic adults.

The full 36-page BJS report, excitingly titled Prisoners in 2016 and full of data of all sorts, is available at this link.

January 10, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 07, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, January 03, 2018

Detailing increase in felony convictions nationwide in modern times

Stateline has this new piece, headlined "Felony Conviction Rates Have Risen Sharply, But Unevenly," with detailed data on how increases in the number of felony convictions has come to define the modern criminal justice era in the United States. Here are some details:

In recent decades, every state has seen a dramatic increase in the share of its population convicted of a felony, leaving more people facing hurdles in finding a job and a place to live and prompting some states to revisit how they classify crimes.

In Georgia, 15 percent of the adult population was a felon in 2010, up from around 4 percent in 1980. The rate was above 10 percent in Florida, Indiana, Louisiana and Texas. Less than 5 percent of the population in Maine, Nebraska, New Hampshire, New York, Utah and West Virginia were felons, but every state had a large increase between 1980 and 2010, when the felony population ranged from 1 to 5 percent, according to a University of Georgia study published in October....

Proponents of more lenient sentencing tend to focus on imprisonment, where Louisiana and Oklahoma have the highest rates, but probation is more common. There were 1.9 million people on felony probation in 2015, compared to 1.5 million in prison. In 2010, the two figures were about the same, at 1.6 million, according to the latest federal statistics.

Many view probation as a more humane alternative to imprisonment, said Michelle Phelps, an assistant professor of sociology at the University of Minnesota. But in some states probation has become a “net widener” that draws more nonviolent criminals into the stigma and harsh supervision of a felony conviction.

Phelps pointed to Minnesota, which has one of the lowest rates of imprisonment, but ranked 16th for felon population in 2010. That year felons were about 9 percent of Minnesota’s population, or nearly quadruple the rate in 1980. “Though it’s frequently dismissed as a slap on the wrist, probation can entail onerous requirements,” Phelps said. For instance, probation can require a job and good housing as a condition for staying out of prison, but the felony conviction itself can make it hard or impossible to get that job.

Gary Mohr, who heads Ohio’s Department of Rehabilitation and Correction, said a felony conviction can have lifelong consequences, no matter whether the punishment is imprisonment or probation. “Even probation or a six-month sentence is really a life sentence because it affects jobs, it affects housing, it affects everything in their lives,” Mohr said....

The findings may help put probation reform on the front burner in some states. In Georgia, a February 2017 report by a state commission called for shorter probation sentences and lighter caseloads for probation officers. (The Pew Charitable Trusts, which also funds Stateline, assisted with the paper.) Almost 3 percent of Georgia’s adult population was on felony probation as of 2015 — far more than any other state and a 12 percent increase from 2010, according to the latest federal figures from the Bureau of Justice Statistics....

When crime rates rose in the 1980s and early 1990s, local and state leaders hired more police and they made more arrests, including felony arrests, Phelps said. In addition, many states elevated nonviolent crimes like drug possession to felony status, and many district attorneys adopted a get-tough strategy, seeking felony charges whenever possible. Police focused drug enforcement on high-crime neighborhoods, which were often predominantly African-American, Phelps said. As a result, felony convictions rose much faster among blacks than among whites.

In 2010, about 23 percent of the black population had a felony conviction. The number of African-American felons increased more than fivefold between 1980 and 2010, while the number increased threefold for other felons. The University of Georgia study did not calculate separate rates for Hispanics or other minority groups.

In left-leaning states such as Massachusetts, Minnesota and Oregon, one contributor to the growing share of the population with a felony conviction was an increased awareness of new crimes like domestic violence, sexual abuse and animal abuse, said Josh Marquis, a district attorney in Oregon and a 20-year board member of the National District Attorneys Association.

When crime is a major concern in a community, elected district attorneys are especially sensitive to public pressure to file more felony charges, Marquis said. “We are not rewarded for the number of felonies filed,” Marquis said. “But we do face election and accountability to our neighbors who are also our bosses.”

January 3, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Friday, December 22, 2017

Noting executions uncompleted in 2017

This recent Houston Chronicle story, headlined "71 percent of scheduled executions not carried out in 2017," provides another perspective on US execution data for the year winding down. Here are some details:

Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country.  That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.

The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas....

"The process is better than it was a decade ago," said Robert Dunham of DPIC. "And there were some potentially wrongful executions that resulted in stays this year that would have resulted in executions a decade ago, but there are still significant and troubling failures."

Ohio and Texas both contributed significantly to the number of cancelled executions, Dunham said.  The Lone Star state saw nine prisoners' execution dates called off this year, many due to claims of false or misleading testimony or forensic evidence. San Antonio death row inmate Juan Castillo had three dates called off, including one delayed due to Hurricane Harvey and another cancelled in light of claims that his conviction was based on false testimony.

Prior recent related post:

December 22, 2017 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Sunday, December 17, 2017

Looking at latest notable Texas death penalty realities

Number_of_executions_between_2000-2017_the_united_states_texas_harris_county_chartbuilder_8a62cc520e6ffbae4480cedf31ee36ed.nbcnews-ux-600-480This new NBC News article, headlined "Why Texas’ ‘death penalty capital of the world’ stopped executing people," reviews how Texas has become fairly representative of the entire United States with a more limited use of capital punishment. Here are excerpts:

Since the Supreme Court legalized capital punishment in 1976, Harris County, Texas, has executed 126 people.  That's more executions than every individual state in the union, barring Texas itself.  Harris County's executions account for 23 percent of the 545 people Texas has executed. On the national level, the state alone is responsible for more than a third of the 1,465 people put to death in the United States since 1976.

In 2017, however, the county known as the "death penalty capital of the world" and the "buckle of the American death belt" executed and sentenced to death an astonishing number of people: zero. This is the first time since 1985 that Harris County did not execute any of its death row inmates, and the third year in a row it did not sentence anyone to capital punishment either.

The remarkable statistic reflects a shift the nation is seeing as a whole. The number of executions has been trending downward across the United States, but it's particularly noticeable in Texas and Harris County.

“The practices that the Harris County District Attorney’s Office is following are also significant because they reflect the growing movement in the United States toward reform prosecutors who have pledged to use the death penalty more sparingly if at all,” said Robert Dunham, the director of the Death Penalty Information Center.

The city of Houston lies within the confines of Harris County, making it one of the most populous counties in the country — and recently it became one of the most diverse, with a 2012 Rice University report concluded that Houston has become the most diverse city in the country. Under these new conditions, Kim Ogg ran in 2016 to become the county’s district attorney as a reformist candidate who pledged to use the death penalty in a more judicious manner than her predecessors, though the longtime prosecutor didn’t say she would abandon it altogether.  Rather, Ogg said she would save it for the “worst of the worst” — such as serial killer Anthony Shore, who was rescheduled for execution next month.

But this year, Ogg appears to have held true to her promise of only pursuing the death penalty in what she deems the most extreme cases.  It represents a break from a long pattern of Harris County prosecutors who pushed for the death penalty in nearly all capital cases. “The overall idea of what makes us safer is changing,” Ogg said. “We’re reframing the issues.  It’s no longer the number of convictions or scalps on the wall. It’s making sure the punishment meets the crime....”

But Ogg said she cannot alone take credit for the recent drop in executions.  The trend precedes her slightly and can also be connected to better educated and more diverse jury pools, as well as Texas’ new sentencing option of life without parole.  The state also has a more skilled group of indigent defense lawyers who build up mitigating circumstances — such as an abusive childhood or mental illness — for an alleged murderer’s crime.

Even a state like Texas might stop sentencing alleged killers to death in the near future. And that trend could well extend nationwide. “We’ve seen a deepening decline in the death penalty since the year 2000, and some states fell faster than others,” said University of Virginia law professor Brandon Garrett, who wrote “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” He added that the declines are steepest in counties that had sentenced the most people to death.

December 17, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, December 15, 2017

Looking at the changing demographics of modern mass incarceration

The Marshall Project has this notable new piece headlined "A Mass Incarceration Mystery: Why are black imprisonment rates going down? Four theories." Here is the start of the extended analysis along with the basics of the propounded "four theories":

One of the most damning features of the U.S. criminal justice system is its vast racial inequity. Black people in this country are imprisoned at more than 5 times the rate of whites; one in 10 black children has a parent behind bars, compared with about one in 60 white kids, according to the Stanford Center on Poverty & Inequality.  The crisis has persisted for so long that it has nearly become an accepted norm.

So it may come as a surprise to learn that for the last 15 years, racial disparities in the American prison system have actually been on the decline, according to a Marshall Project analysis of yearly reports by the federal Bureau of Justice Statistics and the FBI’s Uniform Crime Reporting system.  Between 2000 and 2015, the imprisonment rate of black men dropped by more than 24 percent. At the same time, the white male rate increased slightly, the BJS numbers indicate.

Among women, the trend is even more dramatic. From 2000 to 2015, the black female imprisonment rate dropped by nearly 50 percent; during the same period, the white female rate shot upward by 53 percent. As the nonprofit Sentencing Project has pointed out, the racial disparity between black and white women’s incarceration was once 6 to 1. Now it’s 2 to 1.

Similar patterns appear to hold for local jails, although the data are less reliable given the “churn” of inmates into and out of those facilities. Since 2000, the total number of black people in local detention has decreased from 256,300 to 243,400, according to BJS; meanwhile, the number of whites rose from 260,500 to 335,100. The charts below from the Vera Institute of Justicealso reveal significant drops in the jailing of blacks from New York to Los Angeles, coinciding with little change for whites.  (In both the prison and jail data, the total number of incarcerated Latinos has increased, but their actual incarceration rate has remained steady or also fallen, attributable to their increasing numbers in the U.S. population generally.)

Taken together, these statistics change the narrative of mass incarceration, and that may be one reason why the data has been widely overlooked in policy debates. The narrowing of the gap between white and black incarceration rates is “definitely optimistic news," said John Pfaff, a law professor at Fordham University and an expert on trends in prison statistics. "But the racial disparity remains so vast that it’s pretty hard to celebrate.  How exactly do you talk about ‘less horrific?'”

According to Pfaff, “Our inability to explain it suggests how poorly we understand the mechanics behind incarceration in general.”  In other words, how much of any shift in the imprisonment rate can be attributed to changes in demographics, crime rates, policing, prosecutors, sentencing laws and jail admissions versus lengths of stay? And is it even possible to know, empirically, whether specific reforms, such as implicit bias training, are having an effect on the trend line?....

[H]ere are four (not mutually exclusive or exhaustive) theories, compiled from our research and interviews with prison system experts, to explain the nearly two-decades-long narrowing of the racial gap in incarceration.

1) Crime, arrests and incarceration are declining overall....

2) The war on drugs has shifted its focus from crack and marijuana to meth and opioids....

3) White people have also faced declining socioeconomic prospects, leading to more criminal justice involvement....

4) Criminal justice reform has been happening in cities, where more black people live, but not in rural areas....

Even with all of these factors at work, the racial inequity of the American prison system remains vast and continues to wreak devastation on black and Latino communities nationwide. At the current rate, the disparities would not fully disappear for many decades.

I think a lot of other possible factors may be at least marginally contributing to the changing demographics of prison populations between 2000 and 2015, factors ranging from more diversity in the ranks of police, prosecutors and the judiciary to greater concerns with sentencing decision-making (and advocacy) by courts (and lawyers).  And perhaps readers have some additional (sensible?) theories on this front that could be shared in the comments.

December 15, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Thursday, December 14, 2017

"Second Chance Reforms in 2017: Roundup of new expungement and restoration laws"

2017-Report-Cover-Image-791x1024The title of this post is the title of this notable new publication from the Collateral Consequences Resource Center documenting how states are, in various ways, expanding opportunities to avoid or mitigate the adverse effects of a criminal record. Here is the report's executive summary following the start of its "overview" section:

The national trend toward expanding opportunities for restoration of rights and status after conviction, first documented in Four Years of Second Chance Reforms, 2013 – 2016, has accelerated in 2017. In the past year, 23 states broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing law.

The most frequent type of reform involved limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records -- all making it easier for more individuals to get relief at an earlier date.  However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods.  Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing. To date there has been very little empirical research into the relative effectiveness of different forms of relief, so it is perhaps not surprising that experimentation seems to be the order of the day.

This report documents changes in state restoration laws in 2017, many of which are quite significant.  It is based on research from the Restoration of Rights Project (RRP), an online resource maintained by the CCRC that catalogs and analyzes the restoration laws of all fifty states, the District of Columbia, and the federal system.  Following an overview of 2017 reforms, specific changes to the law in each state are briefly described along with relevant citations. More detailed information about each state’s laws is available in the RRP state profiles.

• In 2017, 23 states enacted laws aimed at reducing barriers faced by people with criminal records in the workplace and elsewhere.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing laws.

• Most of the new laws involved either restrictions on public access to records or limits on employer inquiries into criminal history.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

• Important new record-sealing schemes were enacted in Illinois, Montana and New York, and nine other states either relaxed eligibility requirements or otherwise supplemented their existing sealing or expungement authorities to make relief more broadly available at an earlier date.  Of these nine, the most ambitious reforms were enacted by Nevada, which was one of several states that created a presumption in favor of relief for eligible persons.

• Seven states enacted substantial revisions to their juvenile expungement and sealing laws in 2017, some of which require courts to order relief automatically after a brief waiting period.

• Ten states enacted state-wide “ban-the-box” laws limiting inquiries into criminal record by public employers at preliminary stages of the hiring process.  California, Connecticut and Vermont extended these limits to private employers as well.

• In California and Nevada, restrictions on application-stage inquiries are part of a broader nondiscrimination scheme that prohibits consideration of certain kinds of criminal records, and establishes standards for individualized determinations in all other cases.  Both states provide additional procedural protections.

• While reforms are moving at a fast pace, there is no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record, and very little relevant empirical research.

December 14, 2017 in Collateral consequences, Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

DPIC releases 2017 year-end report noting "second lowest" executions and death sentences in a quarter century

SentencingTrendsThis press release from the Death Penalty Information Center, titled "U.S. Sees Second Fewest Death Sentences and Executions in 25 Years," provides a summary of the DPIC's 2017 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:

Executions and death sentences remained near historically low levels in 2017, as public support for the death penalty fell to its lowest level in 45 years, according to a report released today by the Death Penalty Information Center (DPIC).  Eight states carried out 23 executions, half the number of seven years ago, and the second lowest total since 1991.  Only the 20 executions in 2016 were lower.  Fourteen states and the federal government are projected to impose 39 new death sentences in 2017, the second lowest annual total since the U.S. Supreme Court declared the death penalty unconstitutional in 1972.  It was the seventh year in a row that fewer than 100 death sentences were imposed nationwide.

“Perhaps more than any place else, the changes in Harris County, Texas are symbolic of the long-term change in capital punishment in the United States.  For the first time since 1974, the county that has carried out more executions than any other did not execute any prisoner or sentence any defendant to death,” said Robert Dunham, DPIC’s Executive Director.

“Across the political spectrum, more people are coming to the view that there are better ways to keep us safe than executing a handful of offenders selected from a random death-penalty lottery.  There will be times when numbers fluctuate — particularly following historic highs or lows – but the steady long-term decline in the death penalty since the 1990s suggests that in most of the country, the death penalty is becoming obsolete,” Dunham said.  DPIC provides information and analysis and tracks data on the death penalty, but does not take a position for or against capital punishment.

The new death sentences imposed in 2017 highlight the increasing geographic isolation and arbitrary nature of the death penalty, Dunham said.  “By themselves, three outlier counties  — Riverside, CA; Clark, NV; and Maricopa, AZ —  were responsible for more than 30% of all the death sentences imposed nationwide. The other 3,140 counties and parishes imposed fewer new death sentences than even last year’s record low.”  Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two.  It was the second time in three years that Riverside sentenced more people to death than any other county.

States scheduled 81 executions in 2017, but 58 of them — more than 70 percent — were never carried out.  Nearly 75 percent of executions took place in four states: Texas (7); Arkansas (4); Florida (3); and Alabama (3).  But Texas’s state courts stayed seven other executions using new laws to permit those prisoners to obtain judicial review of false or misleading evidence, and its execution total tied 2016 for the fewest conducted by the state since 1996.

December 14, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Saturday, December 09, 2017

"Make or Buy? The Provision of Indigent Defense Services in the U.S"

I blogged here in August 2016 about an interesting draft paper authored by Yotam Shem-Tov then titled "Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems."  The draft sought to empirically examine different outcomes for defendants assigned different types of counsel.  The authored of that draft emailed me today to report that the paper is now "much more complete" compared to the prior noted draft.  The revised paper, available here via SSRN, is now going by the title that is the title of this post, and here is the new abstract:

U.S. courts provide constitutionally mandated legal services to indigent defendants via private court-appointed attorneys and public defenders' organizations.  I investigate the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned either a public defender or a private court-appointed attorney within the same case. Using data from San Francisco and federal district courts, I argue and show empirically that in multiple defendant cases public defender assignment is as good as random. Estimates show that public defenders reduce the probability of any prison sentence by 22%, as well as the length of prison by 10%.

Interestingly, as noted in a prior post, the early draft's abstract indicated a finding that "defendants assigned a public defender in co-defendant cases had slightly worse outcomes."  But then, as blogged here in January 2017, the author can to the inverse conclusion after checking his data and receiving feedback about his draft analysis.  And now it seems that, after finalizing the numbers, the author has seemingly concluded once-and-for-all that his data show that public defendants generally producing better outcomes than private court-appointed attorneys.

Prior related posts:

December 9, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, December 07, 2017

"The Effects of Aging on Recidivism Among Federal Offenders"

The title of this post is the title of this notable new report released today by the US Sentencing Commission. Here is how the USSC describes the report and its highlights on this webpage:

The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...

Report Highlights

Older offenders were substantially less likely than younger offenders to recidivate following release.  Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release.  The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.

For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge.  By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.

Age and criminal history exerted a strong influence on recidivism.  For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older.  For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.

Education level influenced recidivism across almost all categories.  For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%).  Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).

Age exerted a strong influence on recidivism across all sentence length categories.  Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.  In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.

For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups.  For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders.  For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud).  Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).

At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics.  For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners.  Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.

December 7, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (2)

Saturday, December 02, 2017

Lies, damn lies, and executions statistics for the first year of recent presidential terms

This recent story, reporting that Texas' last scheduled execution of the year was canceled, suggests it is not too early to start taking stock of 2017 with respect to the application of the death penalty.  This DPIC upcoming execution page reports that no more executions are slated to go forward in 2017, meaning that Ohio closed the books on 2017 executions with its failed efforts to kill Alva Campbell (details here) and that Texas and Florida were the last states to actually complete executions with their separate executions on November 8th (details here).  Notably, the AP has this new accounting headlined "US executions increase slightly in 2017," which includes these details:

The year-end numbers also show that Texas will regain its standing as the nation’s most active state in carrying out capital punishment....

Texas put to death seven prisoners this year, matching the state total from 2016. They were among the 23 inmates — up from 20 last year — put to death in eight states in 2017. Arkansas carried out four executions, followed by Alabama and Florida with three each, and Ohio and Virginia with two each. Georgia, which topped the nation in 2016 with nine, executed one prisoner this year, as did Missouri.

Oklahoma, which typically has one of the busiest execution chambers in the country, went another year without putting any inmates to death as the state struggles with implementing a new execution protocol. Oklahoma put all executions on hold two years ago after several mishaps, including a botched lethal injection in 2014 and drug mix-ups in 2015, and the state’s attorney general’s office has said it won’t request any execution dates until at least 150 days after new protocols are released....

Executions in the U.S. peaked in 1999, when 98 inmates were put to death. The following year, Texas alone carried out a record 40 executions. As recently as 2010, the national total was 46, but it has been declining steadily. “Partly it’s because of impediments to execution, like the embargo of the optimum drugs,” said Kent Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, which advocates for capital punishment.  “Although Texas seems to have found ways to get them, many states have not.” Scheidegger also attributed the decline to a “dramatically lower” homicide rate compared with the 1990s and “greater selectivity in which defendants are sentenced to death, by both prosecutors and juries.”...

At least eight inmates — five from Texas and one each from Missouri, Alabama and Ohio — are set to die in the first quarter of 2018. The first, scheduled for Jan. 18 in Texas, is Anthony Allen Shore, who confessed to killing multiple people and is known in the Houston area as the “Tourniquet Killer.”

As the title of this post hints, one (distorting?) way to look at this year's execution numbers is to reflect on the impact (or lack of impact) from a change in presidential leadership in 2017. Because executions take place almost exclusively at the state level — there has not been a federal execution in nearly 15 years — arguably the politics and actions of the person in the Oval Office has little or no impact on yearly execution realities. But I actually think a President (and an Attorney General) can and historically have, at least in subtle ways, an impact on capital policies and practices nationwide. And, as the accounting below suggests, the raw first-year-of-term US execution numbers (drawn from DPIC here) are just intriguing:

Jimmy Carter only term: 1 execution in 1977

 

Ronald Reagan first term: 1 execution in 1981

Ronald Reagan second term: 18 executions in 1985

 

George H.W. Bush only term: 16 executions in 1989

 

Bill Clinton first term: 38 executions in 1993

Bill Clinton second term: 74 executions in 1997

 

George W. Bush first term: 66 executions in 2001

George W. Bush second term: 60 executions in 2005

 

Barack Obama first term: 52 executions in 2009

Barack Obama second term: 39 executions in 2013

 

Donald Trump first term: 23 executions in 2017

 

So, in last four decades we have had: five Democratic Prez first terms with a total of 204 executions (40.8/year); six Republican Prez first terms with a total of 184 executions (30.7/year). 

This fact that there have been, in modern times, an average of 10 more executions in the year starting Democratic terms than in the year starting Republican terms is itself perhaps proof that who is in the Oval Office is of no matter to state execution practices. But I still find even this facile sort of number crunching interesting, as will be watching whether Prez Trump and his Department of Justice gives any attention to these matters in the years ahead.

December 2, 2017 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)

Wednesday, November 29, 2017

Might we soon see Top 10 rankings of state criminal justice systems emerging from the Bureau of Justice Statistics?

The question in the title of this post is my slightly tongue-in-cheek reaction to the news reported here by The Crime Report

President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. He’s Jeffrey H. Anderson, a former senior fellow at the conservative Hudson Institute who is described by the White House as a “constitutional scholar” and a “leader in formulating domestic policy proposals.”... 

This year, the Trump administration named him to direct the Office of Health Reform at the U.S. Department of Health and Human Services, where the White House said he led efforts “to reduce insurance premiums, regulatory burdens, and opioid abuse.”

The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.

The Crime Report article goes on to explain why this really is not a laughing matter:

BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.

In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, [be given] “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”

The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.

Anderson does not appear to have any of those qualifications.

The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.”  The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”

“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”

As of this writing, the current Anderson and Hester Computer Rankings has Wisconsin ranked #1, University of Central Florida #2, Clemson #3, Georgia #4 and Alabama #5.  What this might portend fore the future of the Bureau of Justice Statistics is anyone's guess?

November 29, 2017 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Who Sentences? | Permalink | Comments (2)

Tuesday, November 14, 2017

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:

Summary

Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, October 23, 2017

New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation

This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State.  Here are the details as reported by the AP:

A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black.  The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent.  When the victim is black, the chances are 6 percent lower.

“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.

Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.

The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...

Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic.  Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.

In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.

Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths."  Here is how it starts:

A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.

“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”

The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”

October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

"In Defense of Risk-Assessment Tools"

The title of this post is the headline of this notable new Marshall Project commentary authored by Adam Neufeld. its subheadline highlights its main theme: " Algorithms can help the criminal justice system, but only alongside thoughtful humans." And here is an excerpt:

It may seem weird to rely on an impersonal algorithm to predict a person’s behavior given the enormous stakes.  But the gravity of the outcome — in cost, crime, and wasted human potential — is exactly why we should use an algorithm.

Studies suggest that well-designed algorithms may be far more accurate than a judge alone.  For example, a recent study of New York City’s pretrial decisions found that an algorithm’s assessment of risk would far outperform judges’ track record.  If the city relied on the algorithm, an estimated 42 percent of detainees could be set free without any increase in people skipping trial or committing crimes pretrial, the study found.

But we are far from where we need to be in the use of these algorithms in the criminal justice system.  Most jurisdictions don’t use any algorithms, relying instead on each individual judge or decisionmaker to make critical decisions based on their personal experience, intuition, and whatever they decide is relevant. Jurisdictions that do use algorithms only use them in a few areas, in some instances with algorithms that have not been critically evaluated and implemented.

Used appropriately, algorithms could help in many more areas, from predicting who needs confinement in a maximum security prison to who needs support resources after release from prison.

However, with great (algorithmic) power comes great (human) responsibility.  First, before racing to adopt an algorithm, jurisdictions need to have the foundational conversation with relevant stakeholders about what their goals are in adopting an algorithm.  Certain goals will be consistent across jurisdictions, such as reducing the number of people who skip trial, but other goals will be specific to a jurisdiction and cannot just be delegated to the algorithm’s creator....

Many criticisms of algorithms to date point out where they fall short.  However, an algorithm should be evaluated not just against some perfect ideal, but also against the very imperfect status quo.  Preliminary studies suggest these tools improve accuracy, but the research base must be expanded.  Only well-designed evaluations will tell us when algorithms will improve fairness and accuracy in the criminal justice system.

Public officials have a social responsibility to pursue the opportunities that algorithms present, but to do so thoughtfully and rigorously.  That is a hard balance, but the stakes are too high not to try.

A few (of many) prior related posts:

October 23, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (3)

Thursday, October 19, 2017

"Women’s Mass Incarceration: The Whole Pie 2017"

Women_pie_2017The title of this post is the title of this great new report authored by Aleks Kajstura and released by the Prison Policy Initiative jointly with the ACLU’s Campaign for Smart Justice. In the tradition of other great "whole pie" efforts (see, e.g., here), this latest report details the number of women who are locked up by various correctional systems and why.  Here is part of the text of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control.  Since 2014, the Prison Policy Initiative has quantified the number of people incarcerated in the United States, and calculated the breakdown of people held by each correctional system by offense in an annual Whole Pie: Mass Incarceration report.  This report, done in collaboration with the ACLU’s Campaign for Smart Justice, finally provides similar data on women incarcerated in the Unites States....

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are nearly evenly split between state prisons and local jails.

The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger picture of men’s incarceration. The disaggregated numbers presented here are an important first step to ensuring that women are not left behind in the effort to end mass incarceration.

A staggering number of women who are incarcerated are not even convicted: more than a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women in jail have not been convicted of a crime and are awaiting trial.

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  A previous study found that women who could not make bail had an annual median income of just $11,071.  And among those women, Black women had a median annual income of only $9,083 (just 20% that of a white non-incarcerated man). When the typical $10,000 bail amounts to a full year’s income, it’s no wonder that women are stuck in jail awaiting trial.

Even once convicted, the system funnels women into jails: About a quarter of convicted incarcerated women are held in jails, compared to about 10% of all people incarcerated with a conviction.

So what does it mean that large numbers of women are held in jail - for them, and for their families? While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted - some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women.  Women in jails are also more likely to suffer from mental health problems and experience serious psychological distress than either women in prisons or men in either correctional setting.

The numbers revealed by this report enable a national conversation about the policies that impact incarcerated women held in various facilities, and also serve as the foundation for discussions to change the policies that lead to incarcerating women in the first place.  All too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses, including violent offenses that account for roughly a quarter of all incarcerated women, must be considered in the effort to reduce the number of incarcerated women in this country.  This new data on women underlines the need for reform discussions to focus not just on the easier choices but on choices that can lead to impactful policy changes.

October 19, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, October 16, 2017

"Racial Disparity in U.S. Imprisonment Across States and over Time"

The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto.  Here is the abstract:

The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014.  This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.

For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic.  Many states experienced a downturn in the black-white ratio starting in the 1990s.  Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, October 12, 2017

Texas carries out 20th execution in US in 2017

With only 20 executions carried out in the United States in 2016, last year saw the fewest total nationwide executions in a quarter century.  The national execution pace in 2017 is not much quicker, but an execution completed tonight in Texas means the US will not in 2017 see a decline in total executions for the first time in a number of years.   The Texas execution is number 20 for the US in 2017, and this AP article reports on its particulars:

A Texas inmate convicted in the death of a prison guard has been put to death after the U.S. Supreme Court rejected his lawyer's attempts to halt the execution.

Robert Pruett was given a lethal injection Thursday evening for the December 1999 death of corrections officer Daniel Nagle at a prison southeast of San Antonio. Nagle was repeatedly stabbed with a tape-wrapped metal rod, though an autopsy showed he died from a heart attack that the assault caused. Prosecutors have said the attack stemmed from a dispute over a peanut butter sandwich that Pruett wanted to take into a recreation yard against prison rules.

The 38-year-old Pruett was already serving a 99-year sentence for a neighbor's killing near Houston when he was convicted in Nagle's death. Pruett's execution is the sixth this year in Texas.

This Death Penalty Information Center page indicates that there are nine more serious execution dates in 2017. Even if all these executions are completed (which seems a bit unlikely), there would still be fewer executions in the US in 2017 than in every single year between 1992 and 2014.

October 12, 2017 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (18)

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 25, 2017

Official FBI crime data confirms that 2016 saw another notable increase in violent crime and further reductions in property crime

Early markers suggested that violent crime was increasing in 2016 in the United States, after having increased in 2015 following record low violent crime rates in 2014.  This official FBI press release provides these basics:

The estimated number of violent crimes in the nation increased for the second straight year, rising 4.1 percent in 2016 when compared with 2015 data, according to FBI figures released today. Property crimes dropped 1.3 percent, marking the 14th consecutive year the collective estimates for these offenses declined.

The 2016 statistics show the estimated rate of violent crime was 386.3 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,450.7 offenses per 100,000 inhabitants.  The violent crime rate rose 3.4 percent compared with the 2015 rate, and the property crime rate declined 2.0 percent.

These and additional data are presented in the 2016 edition of the FBI’s annual report Crime in the United States.  This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.  The UCR Program streamlined the 2016 edition by reducing the number of tables from 81 to 29, but still presented the major topics, such as offenses known, clearances, and persons arrested.  Limited federal crime, human trafficking, and cargo theft data are also included....

Of the 18,481 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,782 submitted

  • In 2016, there were an estimated 1,248,185 violent crimes. Murder and nonnegligent manslaughter offenses increased 8.6 percent when compared with estimates from 2015.  Aggravated assault and rape (legacy definition) offenses increased 5.1 percent and 4.9 percent, respectively, and robbery increased 1.2 percent.
  • Nationwide, there were an estimated 7,919,035 property crimes. The estimated numbers for two of the three property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 4.6 percent, larceny-thefts declined 1.5 percent, but motor vehicle thefts rose 7.4 percent.
As readers surely know, rising crime rates always provide fodder for politicians and others to championing tougher sentencing regimes, and we have heard both Prez Trump and Attorney General Sessions stress rising violent crime as a justification for certain policies. I suspect we may soon see these new FBI data appearing in speeches by DOJ officials and others, though folks eager to push back on concerns about a modern new crime wave have already been talking up the recent Brennan Center analysis discussed here suggesting crime rates may be stabilizing or declining in 2017.

At the risk of seeming a bit too Pollyannaish, I think the FBI report that property crimes in 2016 dropped for the 14th consecutive year is a big piece of the national crime story very much worth celebrating. Though violent crimes rates understandably get the most attention, property crimes impact the most people — there are, roughly speaking, more than five property crimes for every violent crime — so drops property crimes can end up meaning a lot more persons and families experienced a crime-free year even when there are spikes in violent crime.

I expect various policy folks will be mining this latest FBI data for crime-specific and region-specific stories. I will try to cover some of the coming coverage and analysis in coming posts.

September 25, 2017 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (6)

Saturday, September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

The title of this post is the title of this notable new paper authored by Carlos Berdejó available via SSRN. Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

September 16, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, September 11, 2017

Notable accounting and review of federal collateral consequences facing nonviolent drug offenders

RId15_image2Last week the Government Accountability Office released this interesting new report titled "Nonviolent Drug Convictions: Stakeholders' Views on Potential Actions to Address Collateral Consequences." The 47-page report is worth a full read, and this highlights page provides these highlights (and the graphic reprinted here):

Collateral consequences are the penalties and disadvantages that can be imposed upon an individual with a criminal conviction, in addition to those directly associated with a sentence (such as a fine, prison, or community service). GAO’s review of the American Bar Association’s (ABA) National Inventory of the Collateral Consequences of Conviction (NICCC) found that, in federal laws and regulations, there are 641 collateral consequences that can be triggered by nonviolent drug convictions (NVDC).  For example, individuals with NVDC may be ineligible for certain professional licenses and federal housing assistance.  The NICCC data that GAO reviewed indicate that these 641 collateral consequences can limit many aspects of an individual’s life, such as employment, business licenses, education, and government benefits.  In addition, GAO also found that the NICCC identified that 497 (78 percent) of the 641 collateral consequences can potentially last a lifetime.

Of the 641 federal collateral consequences for NVDC, GAO found that the NICCC identified 131 (20 percent) as having a relief mechanism in a related law or regulation that prescribed how an individual could potentially obtain relief from the consequence.  For example, individuals may be relieved if they successfully complete a drug rehabilitation program or receive a pardon.

Thirteen of the 14 stakeholders GAO interviewed said the federal government should consider taking action to reduce the severity of (i.e., mitigate) federal collateral consequences for NVDC, such as conducting a comprehensive review of these collateral consequences and implementing a new relief mechanism.  Additional mitigation could, according to some stakeholders, help individuals with NVDC obtain employment, housing, or education; and almost all the stakeholders said mitigation could potentially reduce the likelihood of reoffending.  At the same time, federal collateral consequences can serve public safety functions and protect government interests.  Some stakeholders cautioned that federal action should strike the appropriate balance between preserving collateral consequences that provide a public safety benefit, and addressing consequences that can cause unnecessary burdens and potentially increase the likelihood that individuals with NVDC reoffend.

September 11, 2017 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing | Permalink | Comments (1)

Sunday, September 10, 2017

Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?

The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission.  These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017."  The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year.  So, it can be a mistake to see trends or assert causal links based on just a little bit of data.  Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence.  That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences.  But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.

Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo.  But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.

September 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Tuesday, September 05, 2017

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, August 28, 2017

Helpful new Sentencing Project fact sheet on "Private Prisons in the United States"

The fine folks at The Sentencing Project have this fine new two-page fact sheet providing state-by-state data on the use of private prisons.  Here is some of the text that accompanies the charts in the publication:

Private prisons in the United States incarcerated 126,272 people in 2015, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 45%.

States show significant variation in their use of private correctional facilities.  For example, New Mexico and Montana incarcerate over 40% of their prison populations in private facilities, while states such as Illinois and New York do not employ for-profit prisons.

Data compiled by the Bureau of Justice Statistics (BJS) show that in 2015, 28 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation.

According to BJS data, 21 of the states with private prison contracts incarcerate more than 500 people in for-profit prisons.  Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 14,293.

Since 2000, the number of people in private prisons has increased 45%, compared to an overall rise in the prison population of 10%. In five states, the private prison population has increased 100% or more during this period.  The federal prison system experienced a 125% increase in use of private prisons since 2000 reaching 34,934 people in private facilities in 2015.

Despite the significant growth in private prisons since 2000, the number of people housed in these facilities has declined 8% since reaching a national peak population of 137,220 in 2012.  Since 2000 six states — Arkansas, Kentucky, Maine, Michigan, Utah and Wisconsin — have eliminated their use of private prisons due to concerns about safety and cost-cutting.  An additional six states saw reductions of 40% or more in the use of private prisons during this period.

August 28, 2017 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, August 09, 2017

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, July 30, 2017

Should an uptick in federal gun prosecutions garner bipartisan praise?

The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo."  Here is the full text of the press release:

Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).

“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions.  “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers.  Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent.  That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable.  I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”

In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety.  The Task Force has provided Sessions with recommendations on a rolling basis.  In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.

In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016.  The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.

Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924.  EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes.  That would be the most federal firearms cases since 2005.  It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.

Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)

Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.

July 30, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, July 27, 2017

Reviewing data and lessons of recent Urban Institute report on rising prison time

German Lopez has this new Vox piece that effectively reviews the data and lessons on the recent Urban Institute big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." (This prior post covered that report when it was first released a few weeks ago.)  The full title of this piece captures its primary themes: "Liberals often blame mass incarceration on the war on drugs.  That’s not quite right. A new report shows that the real increase in prison sentences has come from violent offenses, not lower-level crimes."  Here are excerpts:

“Longer sentences are stacking up,” Ryan King, the lead researcher for the Urban report, told me.  “And in many states, the data suggest that they’re stacking up at a rate significant enough that it can offset reforms for the less serious offenses.”

The report includes various other findings.  It found there are vast racial disparities in the top 10 percent of prison sentences, just as there are for lower-level offenses.  The people locked up also tend to be fairly young, which robs communities — particularly black neighborhoods — of people who could grow up to be productive citizens instead of serving out disproportionately harsh sentences. It also told the stories of a few people who suffered through some of these long sentences.  You should really read the whole thing.

But I want to home in on the big finding because it shows what the traditional story about mass incarceration has gotten wrong.  Much of the attention has gone to harsh mandatory minimum sentences for drug offenses, but they seem to have had a fairly small impact on overall incarceration rates.  What seemed to change, instead, is that the system enforced longer prison sentences for some of the worst offenses — and that led to a lot more imprisonment....

To really address the problem of mass incarceration, then, it’s not enough to just focus on drug crimes; it’s also important to focus on violent offenses. It’s also not enough to just focus on the laws guiding prison sentences; it’s also necessary to look at how those laws are enforced in the real world. And addressing all of these issues will require a truly systemic effort — from addressing what the local prosecutor is doing to what laws state policymakers pass to what the president and his attorney general are asking the US Department of Justice to do.

It will be a long, arduous effort.  After years of lawmakers building up incarceration at every level of government, it will likely take years of more policymaking at every level of government to unwind what previous generations of leaders have done.  “This is a long-term project,” King of Urban said. “But we do see it as one that’s ringing a bell saying, look, we’re going to have to deal with this.”

July 27, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Helpful summary of USSC's recent overview of mandatory minimums in federal system

As reported in this prior post, the US Sentencing Commission earlier this month released a lengthy new publication titled "An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System" reviewing the use of federal mandatory minimum penalties and their impact on the federal prison population. Now the USSC has released this two-page publication with the big report's highlights. Here are highlights of these highlights:

July 27, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Thursday, July 20, 2017

"The Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases"

The title of this post is the title of this interesting empirical paper authored by Stephanie Holmes Didwania that was recently posted on SSRN. Here is the abstract:

This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence — when one is charged — by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence.

To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.

July 20, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, July 13, 2017

Urban Institute releases "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons"

Logo-simpleThis morning the Urban Institute released online here a big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." As explained in an email I received, this "online feature examines the causes and consequences of rising time served in America’s prisons [t]hrough visualizations, analysis of trends and demographics, and stories told by people who have served long prison terms." An executive summary can be found at this link, and here are excerpts from it:

People are spending more time in prison, and the longest prison terms are getting longer.  Since 2000, average time served has risen in all 44 states that reported complete data to the National Corrections Reporting Program.  In states with more extensive data, we can trace the rise back to the 1980s and 1990s. In nearly half the states we looked at, the average length of the top 10 percent of prison terms increased by more than five years between 2000 and 2014.

The increase in time served has been sharpest among people convicted of violent offenses.  These changes have an outsized effect on prison populations because people convicted of violent offenses make up more than half the people in state prisons and the majority of people with long terms.

Longer terms are growing in number and as a share of the prison population.  In 35 states, at least 1 in 10 people in prison have been there for a decade or more.  This is even higher — nearly 1 in 4 people — in states like California and Michigan.  In at least 11 states, the number of people who have served at least a decade has more than doubled since 2000.

These trends aren’t accidental, and that they vary so much across states suggests that the growth in time served is driven by state-level decisionmaking.  States grappling with expanding prison populations must include those serving the longest prison terms in their efforts to curb mass incarceration.

Incarceration affects some people and communities more than others, and these patterns are often more pronounced among those who spend the most time in prison.  In 35 of the 44 states we looked at, racial disparities in prisons were starkest among people serving the longest 10 percent of terms.  In recent years, racial disparities have decreased among people serving less than 10 years, but 18 states actually saw an increase in disparities among people serving longer terms.

Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.  Thousands have been in prison for more than half their lives.  One in five people in prison for at least 10 years is a black man incarcerated before age 25.

A growing share of women in prison have served more than 10 years.  In Michigan, for example, 8 percent of women in prison had served at least a decade as of 2000; by 2013, that number was 13 percent.  In Wisconsin, this figure rose from 1.8 to 6.5 percent over the same period.  In light of this trend, more research is needed to understand how women are uniquely affected by long-term incarceration.

More than one in three people serving the longest prison terms is at least 55 years old.  More people serving longer terms means that more people are growing old in prison, yet prisons are typically ill-equipped to address the needs of the elderly and disabled.

July 13, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, July 11, 2017

US Sentencing Commission releases new overview of mandatory minimums in federal system

As reported in this official press release, the "United States Sentencing Commission today released a new publication — An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview) — that examines the use of federal mandatory minimum penalties and the impact of those penalties on the federal prison population." Here is more from the press release about this new publication and its findings:

The new publication updates much of the data contained in its 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System and compiles data through 2016, the most recent full fiscal year for which federal sentencing data is available.

Judge William H. Pryor, Jr., Acting Chair of the Commission stated, "This publication examines the latest data about the use of mandatory minimum sentences in the federal criminal justice system.  When Congress created the Commission, Congress empowered it to serve 'as a clearinghouse and information center' about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies.  See 28 U.S.C. § 995(a)(12)(A). The Commission has published this report to fulfill that Congressional mandate."

Among the key data findings in the publication are:

  • The average sentence length for federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 was 110 months of prison, nearly four times the average sentence (28 months) for offenders whose offense did not carry a mandatory minimum.

  • Slightly more than half (55.7%) of federal inmates in custody as of September 30, 2016 were convicted of an offense carrying a mandatory minimum.

  • Over one-third (38.7%) of federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 received relief from the mandatory minimum at sentencing, which is a decrease from 46.7 percent in fiscal year 2010.

  • Hispanic offenders continued to represent the largest group of federal offenders (40.4%) convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016.

  • White offenders had the longest average sentence (127 months) among federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016, which is a shift from fiscal year 2010 when Black offenders convicted of an offense carrying a mandatory minimum penalty had the longest average sentence (127 months).

  • While Black offenders convicted of an offense carrying a mandatory minimum penalty continued to receive relief from the mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed from a difference of 11.6 percent in fiscal year 2010 to 3.2 percent in fiscal year 2016.

The 2017 Overview is part of a multi-year study included in the Commission’s policy priorities over the past several amendment cycles and is intended to be the first in a series of reports on mandatory minimum penalties.  Continuation of the study is listed as a tentative policy priority for the amendment year ending May 1, 2018.  The Commission will accept public comment on proposed priorities through July 31, 2017.

The full USSC report, which runs 89 pages, is available at this link. I hope to find some time in the coming weeks to highlights some additional data from this latest review of the latest mandatory minimum realities.

July 11, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (2)

Sunday, July 09, 2017

DPIC provides mid-year review of of 2017 death penalty developments

I just noticed that the Death Penalty Information Center recently provided this effective review of 2017 death penalty developments to date. Here are the details with links from the original:

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States.  As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled.  By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued.

Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low.  However, even with the spate of four executions carried out in Arkansas from April 20-27 — that state's first executions since 2005 — there will likely be fewer executions in 2017 than in any other year since 1990.  

New death sentences also remain near historically low levels.  DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional.

Three people have been exonerated from death row in 2017 — Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida — bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness.  A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases.  In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

Other states that have carried out executions so far in 2017 are Texas (4), Alabama (2), Georgia (1), Missouri (1), and Virginia (1).

July 9, 2017 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (30)

Thursday, June 22, 2017

Are federal judges already getting a little tougher at sentencing in the Trump era?

The question in the title of this post was my first thought after looking through this new federal sentencing data released by the US Sentencing Commission today.  The data that really caught my eye is on Table 12, which shows that in the most recent quarter (running from January 1 to March 31), less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range (19.9% to be exact), and 2.9% of cases involved a judge-initiated departure/variance above the guideline range.  The last time that less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range was in the fourth quarter of 2013, and I do not believe there has ever been a quarter in which so many cases involved an above-guideline sentence.

Because federal sentencing data moves always around a bit from quarter-to-quarter, and because case-load mixes can vary from quarter-to-quarter, these small statistical changes I have noticed here may just be a coincidental blip rather than a reflection of the impact of tough-on-crime talk from the Trump Administration and its Department of Justice.  (Nevertheless, because the federal system currently sentences over 16,000 cases per quarter, even small statistical changes represent hundreds of defendants.)  We will have to see in subsequent USSC data runs whether this new pattern of fewer below-guideline sentences and more above-guideline sentences persists.

Critically, the period covered by this USSC federal sentencing data predates the May issuance by Attorney General Jeff Sessions of new charging and sentencing guidance for federal prosecutors.   I find it notable and interesting that federal judges may have already been responding in some (small) sentencing ways to the tough-on-crime talk from the Trump Administration even before AG Sessions formally toughened up federal prosecutorial policies and practices.

June 22, 2017 in Criminal justice in the Trump Administration, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)