Sunday, October 13, 2013
"Prison Accountability and Performance Measures"The title of this post is the title of this notable new paper by Alexander Volokh now available via SSRN. Here is the abstract:
A few decades of comparative studies of public vs. private performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven’t delivered spectacular results is unsurprising, since by and large market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.
This Article argues that performance measures should be implemented more widely in evaluating prisons. Implementing performance measures would advance our knowledge of which sector does a better job, facilitate a regime of competitive neutrality between the public and private sectors, promote greater clarity about the goals of prisons, and, perhaps most importantly, allow the use of performance-based contracts.
Performance measures and performance-based contracts have their critiques, for instance: (1) the theoretical impossibility of knowing the proper prices, (2) the ways they would change the composition of the industry, for instance by reducing public-interestedness or discouraging risk-averse providers, and (3) potentially undesirable strategic behavior that would result, for instance manipulation in the choice of goals, distortion of effort away from hard-to-measure dimensions or away from hard-to-serve inmates, or outright falsification of the numbers. I argue that these concerns are serious but aren’t so serious as to preclude substantial further experimentation.
Monday, October 07, 2013
"Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy"The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:
The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have.
The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques.
Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.
Wednesday, September 18, 2013
The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"
I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project. Here is the text of the email, which includes links to the publication as well as a summry of its key findings:
While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984. As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.
Key findings from the report include:
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.
- One of every nine individuals in prison is serving a life sentence.
- The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
- Approximately 10,000 lifers have been convicted of nonviolent offenses.
- Nearly half of lifers are African American and 1 in 6 are Latino.
- More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
- More than 5,300 (3.4%) of the life-sentenced inmates are female.
September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Thursday, September 12, 2013
US Sentencing Commission releases more documents in its great new "Quick Facts" seriesI am so very pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of documents as part of its terrific new series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.)
As I have said before, I think this is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these latest two publications in the series:
- Marijuana Trafficking Offenses (September 2013)
- Methamphetamine Trafficking Offenses (September 2013)
September 12, 2013 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack
Wednesday, September 04, 2013
How could and should folks view (or "spin") latest results from national survey on drug use and health?
Released today were the findings from the 2012 National Survey on Drug Use and Health by the U.S. Department of Health and Human Services. Helpfully, thanks to our modern digital world, everyone can look at the full reported results from HHS here and a collections of "highlights" at this link. Or one can look at these headlines from some early major media reports:
- From ABC News here, "Drug Use Drops for America's Youth, Rises in the Over 50 Crowd"
- From CBS News here, "New US drug survey: Marijuana and heroin increasing"
- From The Hill here, "Federal survey shows heroin use up significantly"
- From USA Today here, "More Americans are using marijuana"
As these headlines highlight, there are lots of ways to view the latest survey data. (Moreover, because the stigma associated with marijuana use has declined with evolving laws and policy perspectives, I cannot help but wonder if the measured increase in reported use of marijuana might, at least to some degree, reflect an increase in the willingness of persons to admit to marijuana use rather than an actual increase in use.)
Usefully, because the 2012 National Survey on Drug Use and Health also explores alcohol and tobacco use, as well as reported rates of "substantance dependence/abuse," there are a number of notable (though less reported) seemingly positive stories emerging from this latest government report concerning drug use and abuse over the last decade. Specifically (and quoting now directly from the HHS highlights):
- Between 2002 and 2012, past month use of any tobacco product among persons aged 12 or older decreased from 30.4 to 26.7 percent... [and] the rate of past month tobacco use among 12 to 17 year olds declined from 15.2 percent in 2002 to 8.6 percent in 2012.
- Between 2002 and 2012, the percentage of youths aged 12 to 17 with substance dependence or abuse declined from 8.9 to 6.1 percent.
- The number of past year cocaine initiates declined from 1.0 million in 2002 to 639,000 in 2012. The number of crack cocaine initiates declined from 337,000 to 84,000 during this period.
- The rate of current marijuana use among youths aged 12 to 17 decreased from 8.2 percent in 2002 to 6.7 percent in 2006, remained unchanged at 6.7 percent in 2007 and 2008, then increased to 7.9 percent in 2011. The rate declined to 7.2 percent in 2012.
- Past month, binge, and heavy drinking rates among underage persons declined between 2002 and 2012. Past month alcohol use declined from 28.8 to 24.3 percent, binge drinking declined from 19.3 to 15.3 percent, and heavy drinking declined from 6.2 to 4.3 percent.
I am inclined to ultimately view the data emerging from 2012 National Survey on Drug Use and Health as evidence that, all things considered, Americans are somewhat healthier now than we were a year ago and a lot healthier now than we were a decade ago. But most of the headlines I see from the media seem to be emphasizing reported increases in the use of certain substantances rather than reported decreases in the use of other substances.
Tuesday, September 03, 2013
"Evidence-Based Sentencing and the Scientific Rationalization of Discrimination"The title of this post is the title of this provocative new paper by Sonja Starr now available via SSRN. Here is the abstract:
This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.
To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.
Tuesday, August 27, 2013
In praise of the US Sentencing Commission's new "Quick Facts" series
I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications. This posting from the USSC's webpage explains:
The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.
I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:
Sunday, August 11, 2013
New National Academy of Sciences effort seeking to unpack the crime declineAs reported via this helpful piece at The Crime Report, some really important and smart folks are now hard at work trying to understand fully the modern US crime decline. Here are the basics of the effort as explained in the start of this linked report:
The crime level has dropped in the United States over the past two decades, but definitive explanations are lacking. With funding from the Justice Department’s National Institute of Justice, the National Academy of Sciences has organized a project to address that important issue. In a chat with The Crime Report’s Washington Bureau Chief Ted Gest, criminologist Richard Rosenfeld of the University of Missouri-St. Louis — who heads the effort — explains the project’s aims, reports on the topics covered at the first sessions in Washington in June, and explains why it would be a “bad bet” to assume the crime drop will continue indefinitely.
The Crime Report: How is this project organized?
Richard Rosenfeld: It is a so-called “roundtable” on crime trends. The group met in June, and we plan to hold five more sessions over the next three years to hear from experts about various aspects of changes in crime rates over time, both in the United States and elsewhere. We’re primarily focusing on changes in the United States over the last several decades, but at our first meeting we also talked about centuries-long changes in Europe and the U.S., going back to colonial America. This is a broad and comprehensive look at changes over time in crime, and some of the factors connected with those changes.
TCR: Who is involved?
Rosenfeld: There are 16 members of the roundtable. Twelve are academics, including nine criminologists: myself, Eric Baumer of Florida State University, Shawn Bushway of the University at Albany (SUNY), Manuel Eisner of the University of Cambridge, Susan Herman of Pace University, Dan Isom of the University of Missouri-St. Louis (a former police chief); Janet Lauritsen of the University of Missouri-St. Louis, Maria Velez of the University of New Mexico, and David Weisburd of George Mason University and The Hebrew University. The other academics are public health expert David Hemenway of Harvard; historian Randolph Roth of Ohio State University, and economist Jose Scheinkman of Princeton University. Non-academics in the group are Jim Bueermann, a former police chief who now heads the Police Foundation, District Attorney George Gascon of San Francisco; Maxine Hayes, Washington State Health Officer, and Florida Circuit Judge Cindy Lederman.
TCR: Tell us about the first two sessions.
Rosenfeld: We met in Washington, D.C., for two days in June. The five public sessions covered these topics: U.S. crime trends in historical perspective, trends disaggregated by offense type, regional and local variations; gender, race and ethnicity of victims and offenders; and U.S. crime trends in international perspective. The content of the presentations, all of which were made by roundtable members, may be seen at this site.
At our next meeting, which will also be in Washington, at an early December date to be determined, we will focus on the “lead hypothesis,” that the removal of lead from paint and gasoline resulted in crime declines some years later and may largely explain the crime drop. We’ll hear from people who have researched that topic. We haven’t yet set the agendas for the four sessions that will follow that.
A few related posts on modern crime rates:
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Still more (and still puzzling) crime rate declines reported by FBI
- Is the great US crime decline now finally over?: BJS reports crime up in 2011
- FBI reports crime was down yet again in 2011 (though BJS said it was up)
- Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
- Some speculations about the great crime decline in Florida
Friday, August 02, 2013
Could prison perhaps be helping to cause serious recidivism in Delaware?The question in the title of this post is the first reaction I had upon seeing this lengthy local story, headlined "Study: 8 in 10 released inmates return to Del. prisons." Here are the details:
Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study. The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day....
Conducted by the Delaware Criminal Justice Council, the report was a necessary initial step to evaluating the effectiveness of the state's justice system, including the programs available to prisoners while behind bars or after being freed. "These are people who have been sentenced to a year or more in prison, the more serious offenders, and we expected them to be the highest recidivists," said Drewry N. Fennell, the criminal justice council's executive director.
"It really gives us a baseline against which to measure our successes in the future. And our failures. And to know whether we are spending our time and money well in ways that really do enhance communities that people are going back to, as well as enhancing the lives of people who have been incarcerated. We don't want to invest in things that don't do that."
Delaware Gov. Jack Markell said the information should be used to develop better strategies to prevent crime and reduce the number of criminals who re-offend. "Too many people released from our prisons go on to commit more crimes. We need to change that," he said in a statement.
Delaware officials haven't studied how effective the corrections system is in keeping offenders from returning to prison since 2000, and that study was limited to a one-time snapshot of prisoners returning after their release in the 1980s and early 1990s.
Delaware Public Defender Brendan O'Neill, whose taxpayer-funded agency represents about 85% of the state's defendants, said he was surprised the rates included in the new report are so high. "It raises more questions than it answers now," O'Neill said, while applauding officials for finally conducting the long-needed study....
Delaware Attorney General Beau Biden said in a written statement that the report "highlights an alarming rate of recidivism that needs to be addressed by the criminal justice system." Biden said its findings underscore problems his office has been trying to address, such as prison sentences that don't "adequately reflect the seriousness of the crime" or deter future crimes, and the failure of judges to order pre-sentence reports for most serious felony cases.
Delaware embarked on the study on the orders of the General Assembly, which passed a bill in 2012 that required an annual report from the Criminal Justice Council's Statistical Analysis Center. The law, part of the Justice Reinvestment Initiative that looks to spend corrections dollars more wisely, requires one-year, two-year and three-year rates of re-arrest, reconviction and recommitment of released offenders....
Researchers studied 1,167 prisoners released in 2008 and 1,091 freed in 2009. About 91% were men. Fifty-nine percent were black, and 41% white. Those released in 2008 had slightly higher rates of going back into the criminal justice system than those freed in 2009. Of the 2008 group, 56% got arrested for a "serious offense" within one year, compared to 53% in 2009. Fennell said serious crimes include all felonies and Class A and B misdemeanors. Class B misdemeanors include crimes such as marijuana possession, prostitution and criminal contempt....
Perry Phelps, head of the Bureau of Prisons, cautioned, however, that the deck is often stacked against former inmates because they have trouble getting public assistance, college financial aid or jobs. Lawmakers, educators and employers need to face that reality and remove some of the barriers for those who truly want to reform to help prevent them from returning to their criminal ways, he said.
"We tell people in this country we forgive and forget. You go to jail and do your time and you are set free. But that's not the reality of it," Phelps said. "Some people are ostracized as criminals for so long when they go back to society."
A press release concerning this recidivism report is available at this link, and the full report is available at this link. Among the notable findings from the detailed report is that property offenders serving significant prison terms the first time around still have the highest recidivism rate, which leads me to worry (as my post title suggests) that property offenders may be folks most likely to learn about new and improved ways to commit new offenses while inside prison.
Tuesday, July 30, 2013
New USSC data on implimentation and impact of retroactive crack guidelines after FSA
I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act." This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.
Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive. Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.
For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.
As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.
July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Friday, July 26, 2013
New BJS data show continued 2012 decline in state prison populations (and continued federal increase)As detailed in this official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Prison Population Declined for Third Consecutive Year During 2012," the impact of tight budgets and state reforms continues to impact national prison populations in important and significant ways. Here are the basic details:
The U.S. prison population declined 1.7 percent (or by 27,770 inmates) from 2011 to 2012, falling to an estimated 1,571,013 prisoners.... Nine states had a decrease of over 1,000 prisoners in 2012: California, Texas, North Carolina, Colorado, Arkansas, New York, Florida, Virginia and Maryland.
This is the third consecutive year of a decline in the number of state prisoners, which represents a shift in the direction of incarceration practice in the states over the past 30 years. The prison population grew every year between 1978 and 2009, from 307,276 prisoners in 1978 to a high of 1,615,487 prisoners in 2009....
California accounted for the majority (51 percent) of the decline in state prisoners with 15,035 fewer inmates in 2012 than 2011. The decline in California was due in part to its Public Safety Realignment policy, which was designed to reduce overcrowding in the state prisons by diverting new admissions of “nonserious, nonsex, nonviolent offenders” from state prisons to local jails.
The decline in the state prison population was offset by an increase in the number of federal inmates. The federal prison population grew by 0.7 percent (or 1,453 inmates) during 2012, a slower rate than the average annual increase of 3.2 percent each year over the past 10 years.
The U.S. imprisonment rate dropped to 480 sentenced prisoners per 100,000 residents in 2012, continuing a decline since 2007. The national imprisonment rate for males (910 sentenced prisoners per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (63 sentenced prisoners per 100,000 female U.S. residents). The female imprisonment rate decreased 2.9 percent in 2012 from 65 per 100,000 female U.S. residents in 2011.
In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 per 100,000 state residents).
Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).
In 2011 (the most recent data available), the majority (53 percent) of sentenced state prisoners were serving time for a violent offense, including robbery (14 percent), murder or nonnegligent manslaughter (12 percent), rape or sexual assault (12 percent) and aggravated or simple assault (10 percent). About 18 percent were serving time for property offenses, 17 percent for drug crimes and 11 percent for public order offenses, such as weapon violations, drunk driving, commercialized vice and court offenses.
White prisoners comprised 35 percent of the 2011 state prison population, while black prisoners were 38 percent and Hispanics were 21 percent. The percentage of Hispanic inmates sentenced for violent offenses (58 percent) during 2011 exceeded that of non-Hispanic black (56 percent) and non-Hispanic white (49 percent) inmates, while the number of black inmates imprisoned for violent crimes (284,631) surpassed that of white (228,782) or Hispanic (162,489) inmates.
The number of white inmates sentenced for property crime (108,560) was larger than the number of black (78,197) and Hispanic (38,264) inmates sentenced for property crime, while more black inmates were sentenced for drug offenses than inmates of other races or Hispanic origin.
All of this data, and lots more of note, can be found via this 17-page BJS report, which carries the thrilling title "Prisoners in 2012 - Advance Counts." Effective media coverage of this notable new prisoner data can be found via this New York Times article headlined "U.S. Prison Populations Decline, Reflecting New Approach to Crime."
Monday, July 08, 2013
Effective review of modern state clemency procedures as Kentucky's is challengedThis recent AP article, headlined "Kentucky Alone In Lack of Formal Clemency Procedure," provides an effective review of different states' different approaches to the clemency process. Here are excerpts:
The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.
A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators. "The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."
Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.
Two death row inmates are challenging that power and the way the clemency system itself is set up. Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.
The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made. "What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.
Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri....
Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.
Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.
Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.
Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.
Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.
The president has almost unlimited discretion to grant clemency under the federal system. "When all is said and done, Kentucky leans toward the federal model," Ruckman said.
Wednesday, July 03, 2013
"Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies"The title of this post is the title of this important new report emerging from a group of researchers working at Yale Law School. The report provides a soberly fitting and depressing way to launching into a holiday weekend celebration American freedoms. Here is the abstract:
This report provides an overview of state and federal policies related to long-term isolation of inmates, a practice common in the United States and one that has drawn attention in recent years from many sectors. All jurisdictions in the United States provide for some form of separation of inmates from the general population. Prison administrators see the ability to separate inmates as central to protecting the safety of both inmates and staff. Yet many correctional systems are reviewing their use of segregated confinement; as controversy surrounds this form of control, its duration, and its effects.
The debates about these practices are reflected in the terms used, with different audiences taking exceptions to each. Much of the recent public discussion calls the practice “solitary confinement” or “isolation.” In contrast, correctional facility policies use terms such as “segregation,” “restricted housing,” or “special management,” and some corrections leaders prefer the term “separation.”
All agree that the practice entails separating inmates from the general population and restricting their participation in everyday activities; such as recreation, shared meals, and religious, educational, and other programs. The degree of contact permitted — with staff, other inmates, or volunteers — varies. Some jurisdictions provide single cells and others double; in some settings, inmates find ways to communicate with each other. The length of time spent in isolation can vary from a few days to many years.
This report provides a window into these practices. This overview describes rules promulgated by prison officials to structure decisions on the placement of persons in “administrative segregation,” which is one form of separation of inmates from the general population. Working with the Association of State Correctional Administrators (ASCA), the Arthur Liman Program at Yale Law School launched an effort to review the written policies related to administrative segregation promulgated by correctional systems in the United States. With ASCA’s assistance, we obtained policies from 47 jurisdictions, including 46 states and the Federal Bureau of Prisons.
This overview provides a national portrait of policies governing administrative segregation for individuals in prisons, outlines the commonalities and variations among jurisdictions, facilitates comparisons across jurisdictions, and enables consideration of how and when administrative segregation is and should be used. Because this review is of written policies, it raises many questions for research – about whether the policies are implemented as written, achieve the goals for which they are crafted, and at what costs. Information is needed on the demographic data on the populations held in various forms of segregated custody, the reasons for placement of individuals in and the duration of such confinement, the views of inmates, of staff on site, and of central office personnel; and the long-term effects of administrative segregation on prison management and on individuals. Without such insights, one cannot assess the experiences of segregation from the perspectives of those who run, those who work in, and those who live in these institutions.
Saturday, June 29, 2013
The great NYC homicide decline continuesAs reported in this New York Times article, the "number of homicides on record in New York City has dropped significantly during the first half of the year — to 154 from 202 in the same period last year — surprising even police officials who have long been accustomed to trumpeting declining crime rates in the city." Here is more:
Police Commissioner Raymond W. Kelly attributed much of the drop to a new antigang strategy meant to suppress retaliatory violence among neighborhood gangs. Police officials also credited their efforts at identifying and monitoring abusive husbands whose behavior seemed poised to turn lethal.
The recent decrease in violence is all the more striking because last year the department recorded the fewest homicides since it began a reliable method of compiling crime statistics half a century ago. The police recorded 419 murders in 2012.
“By far, it was the lowest, and guess what?” Commissioner Kelly said Friday morning before going on to announce that the number of murders this year was running about 25 percent below even that record year. “In my business, in our business, this is miraculous. These are lives that are being saved.”
The relationship between the drop in murders and the department’s controversial policy of stopping, questioning and sometimes frisking people on the street was hard to immediately divine.
On the one hand, Mayor Michael R. Bloomberg and Mr. Kelly have cited the declining murder rate as a vindication of their policing strategies, which rely heavily on the stop-and-frisk tactic. On the other, stop-and-frisks have dropped off considerably in the last 15 months, suggesting that the drop in murders might have been a result of other factors.
In the first three months of 2012, police records indicate, there were 203,500 stops. But in the first three months of this year, the police recorded fewer than 100,000 stops.
Over the last two decades, the decline in murders in New York has been greater than in other parts of the country. (In the early 1990s, when Mr. Kelly spent a little more than a year as police commissioner, the first of his two stints in the job, the city was coping with about 2,000 murders annually.)...
Noting how the latest reduction of violence coincided with a diminishing number of street stops, some civil rights lawyers have grown more vocal in questioning not only the legality but also the effectiveness of stop-and-frisk tactics.
But police commanders point to what they say is the long half-life of the deterrent effect of stop-and-frisk, saying that criminals may decide to leave their guns at home because they have been stopped in the past, even if the odds of a stop have decreased in recent months. And the police say the decrease in violence has most likely led to a corresponding decrease in suspicious behavior, which results in fewer stops.
Sunday, June 23, 2013
Notable condemned and notable execution milestone in Texas this weekAs reported in this international news piece from AFP, headlined "Texas prepares to execute 500th prisoner," a scheduled execution in Texas this coming week is drawing more than the usual attention for a number of reasons. Here is some context:
The US state of Texas is preparing to execute its 500th convict since the death penalty was restored in 1976, a record in a country where capital punishment is in decline elsewhere.
On Wednesday, in the absence of a last minute pardon, 52-year-old Kimberly McCarthy will receive a lethal injection in Huntsville Penitentiary for the 1997 murder of 71-year-old retired college professor Dorothy Booth. "What we do is we carry out court orders," said Jason Clark, spokesman for the Texas Department of Criminal Justice. "It's our obligation to carry this execution out."
Activists opposed to the death penalty are due to gather at the red brick state prison, known as the "Walls Unit," to mark the milestone with a protest against a punishment they regard as a holdover from another age.
In 1976, the US Supreme Court lifted a moratorium on the use of the death penalty and since that date 1,336 have been executed across the country, more than a third of them in Texas alone. "It is obviously still the leader of executions in the nation, but it is limited to a handful of counties," said Steve Hall of the StandDown Texas Project, which has campaigns for a new moratorium....
Richard Dieter of the Death Penalty Information Center, an academic watchdog, agreed. "Despite this major milestone, we expect the total number of executions to be less than last year and a new drop in death sentences," he said.
According to DPIC's figures, there are 3,125 convicts on death row in the United States and, if Wednesday's execution goes ahead, McCarthy will be the 17th prisoner put to death in the first six months of 2013.... American juries are also imposing capital punishment in fewer cases, with only 78 death sentences last year, down by around three-quarters since the 1990s -- although violent crime is also down.
And, while 32 of the 50 US states still have the death penalty on the books, many have imposed a de facto moratorium, with few or none of the executions carried out and convicts languishing on death row....
"By measurements like the number of executions, death sentences and states, the death penalty is in decline," admitted Robert Blecker, a professor at New York Law School. "But, in terms of the popular support, that is fairly constant. It is not in decline," he said, noting that the proportion of voters backing execution always increases in the wake of "egregious" crimes.
Opinion polls consistently show that between 60 and 65 percent of Americans back the death penalty, indicating that support goes beyond the roughly 50-50 left-right divide in US electoral politics.
This local piece from the Austin Chronicle discusses the specifics of the notable defendant now poised to be number 500 in Texas. Here is how it begins:
With the execution of Kimberly McCarthy slated for June 26, Texas is on the eve of a historic first: The first state to have executed 500 individuals since reinstatement of the death penalty — an event that also extends Gov. Rick Perry's record as the U.S. governor presiding over the most executions ever carried out. McCarthy is slated not only to be tagged with the infamous fate of 500, but will also become only the fifth woman — and the third black woman — executed in Texas since 1854.
McCarthy, who was previously married to New Black Panther Party founder Aaron Michaels, was sentenced to die for the 1997 robbery-murder of her 71-year-old neighbor, retired professor Dorothy Booth. According to the state, McCarthy's crack cocaine addiction led her to employ a ruse — she needed to borrow sugar, she told Booth — in order to get into Booth's house. Booth was repeatedly stabbed, and her finger, with ring on it, was cut off. Booth's car and credit cards were also stolen; McCarthy told police she pawned the items to get money for drugs.
Friday, April 26, 2013
A data-based exploration of prison growth and the drug war
I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story. Here are his first three posts in a series that is a must-read for a number of reasons:
- Hunting Zombies: The War on Drugs and Prison Growth
- Setting the Stage: The Explosion in Prison Populations
- Some More Evidence Against the War on Drugs Hypothesis
Friday, April 19, 2013
"How can a member of the US Sentencing Commission promote federalism?"The question in the title of this post is one astute query by a commentor in response to my recent post here highlighting that Eleventh Circuit Judge William Pryor, whom President Obama nominated to the US Sentencing Commission earlier this week, has written about the need for the federal criminal justice system to be more attentive to federalism concerns. There are lots of possible answer to this question, but the following passage from the article in the Ohio State Journal of Criminal Law, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011), provides an answer in Judge Pryor's own words:
One answer to the current challenges to sentencing reform is to add federalism to our national conversation. A comprehensive report on sentencing by the U.S. Sentencing Commission, as the Department of Justice suggests, is a good idea, but one of the subjects of the report should be the balance of federal and state power. The Commission should consider and evaluate to what extent the problems of disparities, complexity, and unpopularity of the post-Booker guidelines are related to the federalization of crime. The Commission should evaluate to what extent federal prosecutions of certain types occur more frequently in states with failed indeterminate systems and less frequently in states with successful guideline systems. It should ask to what extent federal judges disrespect guidelines where the underlying crimes are more local in nature and differences of opinion about punishment vary more by region. It should consider whether sentencing disparities occur under the advisory guidelines either on a regional basis from one district to another or within districts from one judge to another, and should consider what those disparities mean with respect to federalism. The Commission is in a better position than most institutions to ask what federal sentencing policies and practices tell us about the balance of federal and state powers.
Disappointingly, the US Sentencing Commission's recently released reports about post-Booker sentencing practices and about federal child porn sentencing, despite being massive and dense with data about all sorts of federal sentencing realities, included no focused exploration of the relationship between federal sentencing practices and state and local sentencing developments. Perhaps if (and I hope when) Judge Pryor is confirmed to join the USSC, he can and will champion an effort to produce follow-up reports focused specifically on these kinds of federalism concerns.
Recent related posts:
- Prez Obama makes three great new nominations to the US Sentencing Commission
- If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
Monday, March 25, 2013
New report assails Massachusetts sentencing and corrections policies and practicesThis lengthy article from the Boston Globe discusses a big new forthcoming report highlighing failings in the sentencing and punishment systems in Massachusetts. The article is headlined "Report slams state for lack of corrections reform: Crime down, prison costs up as study urges shorter sentences, focus on parole," and it gets started this way:
Despite steeply declining violent crime rates, the percentage of Massachusetts residents behind bars has tripled since the early 1980s, as the Commonwealth has clung to tough-on-crime laws that many other states have abandoned as ineffective, according to a study being released this week.
The 40-page report — endorsed by a coalition of prominent former prosecutors, defense attorneys, and justice officials — slams the state for focusing too much on prolonged incarceration, through measures such as mandatory minimum sentences, and for paying too little attention to successfully integrating prisoners back into society.
This is not just a social justice issue, the coalition argues, but a serious budgetary problem. The report estimated that policies that have led to more Draconian sentences and fewer paroles have extended prison stays by a third since 1990, costing the state an extra $150 million a year.
“It’s an odd set of numbers: crime going down while prison populations are still going up,” said Greg Torres, president of MassINC, the nonpartisan research group that commissioned the study. “What the report shows is that it’s a problem with the corrections systems front and back doors — sentencing and release.”
The study says Massachusetts, with its rising prison population, is heading in the opposite direction of several more traditionally law-and-order states — many of which have changed sentencing requirements, closed prisons, and cut costs. While other states have seen drops in incarceration in conjunction with falling crime rates, Massachusetts has seen the opposite.
In addition to the longer prison stays, Torres said, a reduction in post-release supervision has left Massachusetts with a recidivism rate higher than many other states, which in turn has sent more offenders back to prison. New data in the report show that six of every 10 inmates released from state and county prisons commit new crimes within six years. If the recidivism rate was cut by 5 percent, the report says, Massachusetts could cut $150 million from its more than $1 billion corrections budget.
Released in partnership with the newly formed grouping of law-enforcement officials, which is called Criminal Justice Reform Coalition, and Community Resources for Justice, a social justice nonprofit group, the report issues include a moratorium on the expansion of state prisons, reexamining sentencing guidelines, and expanding prerelease programs. “In the last 10 years we’ve learned a lot about what doesn’t work,” said John Larivee, chief executive of Community Resources for Justice and coauthor of the report.
One key to changing the state’s corrections system, the report’s authors stress, is building bipartisan consensus so neither side can later be accused of being soft on crime. “There’s more bipartisan common ground than you might expect,” said Wayne Budd, a Republican who is one of the reform coalition’s three co-chairmen.
In addition to Budd, the coalition is led by Kevin M. Burke, former state secretary of public safety, and Max D. Stern, president of the Massachusetts Association of Criminal Defense Lawyers.
UPDATE: The full 40-page report, which is titled "Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?," is now available via this link.
March 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack
Saturday, March 16, 2013
"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencingThe title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism." Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:
Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.
The downward variance rate is at its most extreme with a very controversial crime: child pornography offending. The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position. A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.
The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued. Bivariate measures showed statistically significant correlations among relevant measures. The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits. A multivariate logistic regression analysis was employed using downward variances as the dependent variable. Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.
The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference. It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline. Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.
Some recent related posts:
- US Sentencing Commission releases big new report on federal child porn sentencing
- Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?
- The many (impossible?) challenges of federal child pornography sentencing
- DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken
- Notable debate in Wisconsin over new state child porn sentencing law
March 16, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, March 06, 2013
Ohio completes its 50th execution in modern eraAs reported in this new AP report, headlined "Ohio executes man who fatally shot security guard," my own great state of Ohio has this morning reach a notable modern death penalty milestone. Here are the basics:
A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed on Wednesday.
Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994.
Treesh, in a last statement, apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I've never been tried, I've never been charged," he said. After a few more comments he said, "If you want me murdered, just say it."
Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.
Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and his co-defendant "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said.
Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.
Just a decade ago, Ohio was among a number of large industrial and western states with a fairly large death row but few actual executions. States still in that category include California, Nevada and Pennsylvania and used to include Illinois.
But now Ohio in among the ranks of mostly southern states that have completed more than 50 executions in the post-Furman modern death penalty era. Via this page at the Death Penalty Information Center, here is a list of the states that Ohio has now joined (with their total modern executions in parentheses):