Monday, July 11, 2016
Spotlighting that the death penalty, practically speaking, is now really dying
BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months." Here is the start of a piece that merits a full read:
It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.
This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.
The pause on executions — since it is state-specific — won’t last forever. The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned. It isn’t, however, only that there have been no executions in the past two months. This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past. It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.
There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country. The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.
Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992. Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season. Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.
In short, this is an unprecedented moment in the modern era of the death penalty. Why, in the absence of any overarching federal prohibition on executions, is this so?
Tuesday, July 05, 2016
Detailing how challenges go up for federal probation officers as the federal prison population does down
The Wall Street Journal has this interesting new article discussing one of many echo effects of a large number of federal prisoners being released early in recent years due to various federal sentencing developments. The article is headlined "Changes in Sentencing Policy Raise Pressure on Probation Officers: Wave of early inmate releases raises concerns over preventing relapses among high-risk population." Here is how it gets started:
Karrie Springstead tries not to stand directly in front of the ex-inmate’s apartment door as she knocks. The veteran probation officer doesn’t expect trouble, but she never knows who might be on the other side. “It’s the third party that makes me a little more leery,” says Ms. Springstead, 31 years old. “It’s the people you don’t know, and they don’t know me.”
Ms. Springstead is one of 5,500 federal probation officers who oversee roughly 180,000 people across the country. The current push for shorter prison sentences is putting more work on the force, federal officials say, and raising concerns that critical details might be missed that could prevent relapses among a high-risk population.
Overhauling the criminal-justice system, including shorter sentences, is a hot topic in Washington, with some Democrats and Republicans increasingly coalescing behind a view that incarceration times have gotten too long. Even before any major bills have passed, however, federal officials have begun chipping away at sentences. Since 2010, 14,100 people have been freed early because of changes in sentencing law and policies, according to the Administrative Office of the U.S. Courts, and the federal probation case load has increased 7% since 2010. In the same period, the budget of the U.S. Office of Probation and Pretrial Services Office rose 0.5%, to $902 million.
The proportion of federal ex-inmates whose probation has been revoked dropped to 27% in 2015 from 29% in 2010. That decline has been attributed in part to improved risk assessments that are more sophisticated than previous ones and include a wider array of factors, from an offender’s education levels to family makeup.
But probation officials say the drop is due chiefly to the fact there are fewer officers, relative to the number of ex-inmates, to spot violations, so more offenders are remaining free. “There is a tie between revocation rates going down and a shortage of officers in the community checking on people,” said Steve Skinner, chief of the federal probation office in Oklahoma City, where Ms. Springstead works....
A change in 2014 by the U.S. Sentencing Commission to the way drug sentences are calculated shows the potential impact. The federal probation office asked for a year to prepare for the change, and hired 388 new probation officers, though attrition cut the net gain to 150, said Matthew Rowland, who heads the office. As a result of the sentencing change, a service that usually gets about 1,130 new charges a week got about 5,000 in the space of a weekend around last Nov. 1. Another 26,000 will be released early in coming years due to the change, according to the U.S. Sentencing Commission.
Saturday, July 02, 2016
Can and will big data help reduce mass incarceration?
The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:
The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.
“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today. Taking a closer look at the data, she said, can help identify who those people are. In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early. That intervention led to a 40 percent reduction in the county jail population. “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”
Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help. As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America. The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”
Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.
In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier. Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly. Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors. As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.
Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country. After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?
Thursday, June 30, 2016
New report highlights huge role of a handful of local prosecutors on the size of death rows
This notable new report from Harvard Law School’s Fair Punishment Project highlights the consequential role of just a handful of local prosecutors on the modern US death penalty. The report, titled "America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive The Death Penalty," gets started this way (with footnotes removed):
Last year, a journalist asked Dale Cox, then the District Attorney of Caddo Parish, Louisiana, about the wisdom of the death penalty in light of the recent exoneration of Glenn Ford, a man who spent thirty years on death row for a crime that he did not commit. Cox told the reporter: “I think we need to kill more people.” “Revenge,” he said, “brings to us a visceral satisfaction.” Between 2010 and 2015, Cox alone secured one-third of Louisiana’s death sentences.
Cox’s disproportionate use of the death penalty illustrates a point that Justice Stephen Breyer recently made. “It is now unusual to find capital punishment in the United States,” Breyer wrote, because “capital prosecutions are being pursued in only a few isolated counties.” There are more than 3,100 counties, 2,400 head prosecutors, and thousands of line prosecutors in America — yet only a tiny handful of prosecutors are responsible for a vastly disproportionate number of death sentences. The question that this disparity prompts is: Why?
This report analyzes the records of five of America’s deadliest head prosecutors. Three of them personally obtained over 35 death sentences each: Joe Freeman Britt in North Carolina, Bob Macy in Oklahoma, and Donnie Myers in South Carolina. These men shared an obsession with winning death sentences at almost any cost. For example, Joe Freeman Britt, who committed misconduct in more than 36% of his death penalty prosecutions, said: “Within the breast of each of us burns a flame that constantly whispers in our ear ‘preserve life, preserve life, preserve life at any cost.’ It is the prosecutor’s job to extinguish that flame.” The remaining two prosecutors, Lynne Abraham (Philadelphia County, Pennsylvania) and Johnny Holmes (Harris County, Texas), did not personally prosecute as many death penalty cases as the three men above, but nonetheless oversaw the imposition of death sentences against a staggering 108 and 201 people, respectively, during their terms.
Of these five prosecutors, only one — Donnie Myers — remains in office, and he plans to retire at the end of the year. One of the most remarkable findings from our research is the fact that once these prosecutors and their protégés left their positions, death sentences dramatically declined in these jurisdictions — a pattern that has only become clear in the years since their departures.
We also highlight five additional prosecutors who came very close to becoming members of this notorious group. These runners-up have egregious records in their own states, and like the prosecutors above, the striking drop in new death sentences that has occurred in their respective jurisdictions since their departures illustrates their outsized impact on the death penalty.
Unfortunately, the problem of personality-driven capital sentencing has continued beyond the tenure of these prosecutors. Over the past fifteen years, prosecutors have pursued far fewer capital cases and juries have returned far fewer death sentences than in years past. Indeed, in 2015, juries returned just 49 death sentences, the fewest in recent history. This number represents an 84.4% drop from the 1996 high of 315 death verdicts. However, in the increasingly small number of the counties that still actively sentence people to death, a handful of prosecutors dominate death-sentencing statistics.
In the final section of this report, we offer a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America. Taken together, the profiles featured in this report demonstrate that the death penalty has been, and continues to be, a personality-driven system with very few safeguards against misconduct and frequent abuse of power, a fact that seriously undermines its legitimacy.
Wednesday, June 29, 2016
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
Tuesday, June 28, 2016
"The Criminal Justice Black Box"
The title of this post is the title of this notable new paper authored by Samuel Wiseman and now available via SSRN. Here is the abstract:
“Big data” — the collection and statistical analysis of numerous digital data points — has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely-dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct.
But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, no lucrative market for the data (apart from that for background checks) exists to induce the private sector to step in to fill the gap. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box” by uniformly collecting and reporting basic, anonymized data from criminal cases — including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition — would have significant benefits. It would allow researchers, reformers, and government actors to both more effectively study the system as a whole and to more easily identify jurisdictions violating the Constitution by, for example, routinely denying counsel or pretrial release and imprisoning defendants for inability (rather than unwillingness) to pay a fine or fee.
This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. While participation in this uniform system is likely to be incremental, even partial data would improve our understanding of the system as a whole and aid efforts to enforce well established, but frequently violated, constitutional rights.
Tuesday, June 21, 2016
Bureau of Justice Statistics releases new detailed report on recidivism of federal offenders
This official press release reports on some of the interesting highlights of this interesting new report from the Bureau of Justice Statistics about recidivism rates and patterns for federal offenders. The report is formally titled "Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010." Here is the text of the BJS press release on the report:
Of the nearly 43,000 federal offenders who were placed on federal community supervision in fiscal year 2005, an estimated 43 percent were arrested at least once within five years of their placement, the Bureau of Justice Statistics (BJS) announced today. An estimated 18 percent of these offenders were arrested at least once within one year of placement on community supervision and 35 percent were arrested at least once within three years of placement.
An estimated 80 percent of offenders who were placed on federal community supervision in 2005 were male. More than a third (41 percent) were white and nearly a third (31 percent) were black. An estimated 28 percent were age 29 or younger and about 42 percent were age 40 or older.
The first arrest offense for federal offenders after placement on community supervision varied by federal and nonfederal offenses. Among federal offenses, public order offenses, such as probation violations, accounted for 90 percent of first arrests of federal offenders after placement on community supervision, compared to 33 percent of first arrests for nonfederal offenses.
In comparing federal and state prisoners placed on community supervision, almost half (47 percent) of federal prisoners were arrested within five years, compared to more than three-quarters (77 percent) of state prisoners. Nearly a third (32 percent) of federal prisoners returned to prison within five years of their release to community supervision, compared to more than half (59 percent) of the state prisoners.
Other findings include —
Nearly a quarter (23 percent) of federal offenders on community supervision were directly sentenced to probation, while more than three-quarters (77 percent) began a term of community supervision following release from prison.
An estimated 70 percent of federal offenders on community supervision had at least one prior nonfederal arrest, and more than a third (35 percent) had four or more prior nonfederal arrests.
Intriguing review of Georgia's intriguing modern history with capital punishment
Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty. And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention. Here is how the piece starts:
It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.
During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.
A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.
The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”
Thursday, June 16, 2016
"States of Incarceration: The Global Context 2016"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:
How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.
“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”
This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.
“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”
The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.
The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.
The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”
Friday, June 10, 2016
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Thursday, June 09, 2016
Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels
This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report:
Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).
Two overarching findings:
1. Many argue that increased incarceration is necessary to reduce crime. Yet the data shows the opposite. Over the last ten years, 27 states have decreased both crime and imprisonment. Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006. Crime continued its downward trend while incarceration also decreased.
2. In recent years, states in the South have seen some of the largest decreases in imprisonment. Yet, they also remain the largest incarcerators in the country. Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate. Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.
And here is a snippet from the Atlantic's discussion of the report:
Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.
The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...
In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....
In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.
As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.
Sunday, June 05, 2016
Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process. The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:
Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin. The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing. The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.
Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.
Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders. They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.
Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs. The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?” Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.
Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision. “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.
Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools. Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.
Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women. COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.
The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”
June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Tuesday, May 31, 2016
"Marijuana Enforcement Disparities In California: A Racial Injustice"
The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:
Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction. Subsequently, misdemeanor marijuana arrests plummeted by 86 percent. Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher. This can be a substantial burden for young and low-income people. According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....
Infraction data are hard to come by in California. The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys. In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.
These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough. There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys. While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.
Cross-posted at Marijuana Law, Policy & Reform
Friday, May 27, 2016
"The Story of Federal Probation"
The title of the post is the title of this notable new paper authored by Brent Newton now available via SSRN. Here is the abstract:
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission (“the Commission”), pursuant to the Sentencing Reform Act of 1984 (“SRA”), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission’s policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades. That rate has fallen from around half of all federal sentences in the decades before the guidelines went into effect in late 1987, to slightly less than a quarter of federal sentences shortly after the guidelines were first implemented nationwide in the early 1990s, and to one in ten federal sentences today.
This Article assesses those critics’ claims about federal probation sentences and, in the process, tells the story of federal probation — beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress’s directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much — or even more — responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
In particular, the current low rate of federal probationary sentences is in large part explained by: (1) significant changes in the types of federal offenses prosecuted during the past three decades (with two-thirds of federal cases today involving substantial drug-trafficking offenses, firearms offenses, or immigration offenses, which typically do not involve realistic candidates for probation); (2) a significant increase in the average federal defendant’s criminal history during the past three decades; (3) the enactment of several federal penal statutes either requiring a mandatory minimum term of imprisonment or otherwise prohibiting probation as a sentence; (4) the implementation of the Bail Reform Act of 1984, which today results in the pre-sentencing detention of three-quarters of federal offenders (and creates a strong incentive for detained defendants not to ask for probation); and (5) a significant increase in the percentage of non-citizen offenders in the federal criminal justice system (who are not eligible for probation as a practical matter).
May 27, 2016 in Booker in district courts, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)
Monday, May 23, 2016
ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:
[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.
Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.
In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.
We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.
When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.
We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
- The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
- White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”
Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)
May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Sunday, May 22, 2016
A bunch of timely and notable new Quick Facts from the US Sentencing Commission
The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site. Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")
In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:
Mandatory Minimum Penalties (May 2016)
Drug Trafficking (May 2016)
Illegal Reentry (April 2016)
Alien Smuggling (April 2016)
May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)
Thursday, May 19, 2016
Notable new BJS report on "Aging of the State Prison Population, 1993–2013"
As detailed in this official press release, the Bureau of Justice Statistics has just released this interesting new report with lots of data about the sentencing and incarceration of older offenders. Here are the statistical basics from the press release:
Prisoners age 55 or older sentenced to more than one year in state prison increased from 26,300 in 1993 to 131,500 in 2013, the Bureau of Justice Statistics (BJS) announced today. This represented a growth from 3 percent to 10 percent of the total state prison population during this period. From 1993 to 2013, the median age of state prisoners increased from 30 to 36 years.
Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased. Both the admission rate and year-end imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.
The imprisonment rate for prisoners age 55 or older sentenced to more than one year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013. Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60 percent turned age 55 while serving time in prison. Additionally, 40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993.
Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013. People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013.
In 2013, two-thirds (66 percent) of state prisoners age 55 or older were serving time for a violent offense, compared to a maximum of 58 percent of other age groups. In 2013, nearly half (48 percent) of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 and more than a quarter (27 percent) of those ages 35 to 44. In 2013, 30 percent of state prisoners age 55 or older were imprisoned for sexual assault, which was more than double the percentage of prisoners age 44 or younger.
The mean sentence length for prisoners age 55 or older admitted on new court commitments was consistently higher than other age groups. Their mean sentence length was 82 months in 2013. In comparison, prisoners ages 18 to 39 had a mean sentence length of 69 months, and the mean sentence length for new inmates ages 40 to 54 was 71 months.
Prisoners age 55 or older convicted of new violent crimes received longer sentences and were expected to serve a higher proportion of their sentences than younger offenders. Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost 5 years) for those ages 18 to 39.
Monday, May 16, 2016
"13 Important Questions About Criminal Justice We Can’t Answer. And the government can’t either."
The title of this post is the title of this notable new Marshall Project piece by Tom Meagher. Here are excerpts:
The open secret is that we know very little about much of how the criminal justice system operates in America. These aren’t things the government knows and won’t tell us (though there are plenty of those, too). It’s because state, local and federal governments, which ought to rely on data to inform the policies they enact, just don’t know.
In some cases, the federal government commissions criminal justice surveys that offer national estimates, often years after the fact. But the kind of granular, local, real-time data that powers most industries is all but absent. The number of times police use force or shoot someone in the line of duty are just the most obvious examples in our current national conversation.
Among the things we don’t know about our criminal justice system:
◾ how many people have a criminal record
◾ how many people have served time in prison or jail
◾ how many children are on some type of supervision or probation
◾ how many juvenile offenders graduate to become adult offenders
◾ how often people reoffend after being released from prison
◾ how many shootings there are in America
◾ how many police are investigated or prosecuted for misconduct
◾ how many people in America own guns
◾ how often police stop pedestrians or motorists
◾ how many incidents of domestic violence are reported to police
◾ what percentage of those eligible for parole are granted release from prison
◾ how many corrections officers are disciplined or prosecuted for abusing prisoners
◾ how many criminal cases are referred to prosecutors and how they decide which to pursue
The excuses for why we don’t have better data about our police, our courts and our prisons may sound familiar to anyone who has worked in corporate America: there isn’t enough money to hire analysts; the IT department says it can’t be done; the chief is moving on to another department.
Local autonomy has not been helpful for good criminal justice data. The fraction of the country’s 18,000 police departments that do collect figures on officers’ use of force have no consistent definition of what constitutes force. Adam Gelb, director of the Pew Charitable Trusts’ Public Safety Performance Project, cites similar issues in other parts of the system, like probation. There are thousands of probation agencies, but they are either run at the state or local level. In one place, probation is part of the executive branch; In another, it’s part of the judiciary. The lack of consistency makes contacting all the agencies a daunting prospect, much less moving them toward timely and uniform reporting of statistics....
There is one part of the Department of Justice tasked with collecting and publishing data: The Bureau of Justice Statistics. But no one argues that the bureau, which is a clearinghouse for all kinds of data on police staffing, prison rape, crime figures and more, should be doing it all by itself.... “I don’t think the BJS can do it,” said John Pfaff, a professor at Fordham Law School in New York. "Every year, Congress asks them to do more and more already. I don't think they have the capacity to do any more. They do amazing stuff, but I don't think they can."
When it comes to bad data, police aren’t even the worst offenders. While there is data on policing and corrections and some on the courts themselves, the biggest piece missing is information on how local prosecutors operate. "We have really no data whatsoever on what prosecutors do, almost none,” Pfaff said, adding, “We don't know what they're doing, why they're doing it and what drives their decision process."
And that ignorance has an impact on efforts to reduce incarceration levels and lower sentences. Because we don’t have data on how prosecutors work, we don’t focus on them when we talk about reforms, Pfaff said. Gelb called prosecutors “the biggest and most significant black box to be opened in the system.”
The problem with a lack of data on the criminal justice system is more than just budgetary. It’s a cultural issue that gets to the heart of why criminal justice reform is so very difficult. “For some [police] departments there may be cultural resistance to looking too closely,” Katz said. “Police departments can be very insular, very closed off. Within the closed system they may not even perceive that this may be a best practice.”
This aversion to transparency has rubbed off on lawmakers, who may find the numbers mildly interesting, but not really necessary to guiding policy for a system that largely runs itself, according to Gelb. “If that's the approach and the attitude, why would you need to have real time, actionable data for policy decisions? Policy makers have not seen the need for it,” he said. And what we — and policy makers — don’t know about criminal justice could fill a prison.
Tuesday, May 10, 2016
New study suggests California's prison population reduction via realignment has been generally successful
This new entry at The Crime Report, headlined "California's Prison Downsizing Offers a Model for Other States, Study Says," reports on notable new research suggesting that crime has not increased dramatically after California was force in the wake of the Plata ruling to reduce its prison population. Here is the start of the entry describing the research:
The success of California's Public Safety Realignment Act in reducing state prison populations without a corresponding increase in crime suggests that other jurisdictions around the country can enact similar reforms without endangering public safety, according to a study published in the latest issue of Criminology & Public Policy, an American Society of Criminology journal.
The study, entitled “Is Downsizing Prisons Dangerous? The Effect of California’s Realignment Act on Public Safety” [available here], cites already published data showing that the 17 percent reduction in the size of California’s prison population over a 15-month period, beginning with the Act's implementation in 2011, did not have an effect on aggregate rates of violent crime or property crime.
"Moreover, 3 years after the passage of Realignment, California crime rates remain at levels comparable to what we would predict if the prison population had remained at 2010 levels," write authors Jody Sundt of Indiana University, Emily J. Salisbury of University of Nevada, Las Vegas, and Mark G. Harmon of Portland State University.
The California results demonstrate that "we make a mistake...when we assume that prisons are the only meaningful or viable response to crime,” the authors add.
According to the data referenced in the study, the California Realignment Act reduced the size of the state’s prison population by 27, 527 inmates within 15 months. Many of the inmates were transferred to local jails or released into the community. Critics of the Act linked the policy to recorded increases in offenses such as auto theft. But the authors argued that the slight uptick in such offenses leveled off over time--and was not necessarily linked to realignment.
These results should serve as an object lesson for other jurisdictions, said the authors. "For the first time in decades it appears that a 'window of opportunity' for justice reform is opening to allow for a reevaluation of the effectiveness and wisdom of policies that have created the largest prison population in the world," they wrote, citing a phrase used by criminologist Michael Tonry.
Monday, May 02, 2016
The title of this post is the title of this interesting-looking new article by Jason Kreag now avaible via SSRN. Here is the abstract:
The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates. The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision-making.
We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function. This tool has revolutionized crime-fighting. Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system. This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.
Friday, April 29, 2016
"Louisiana Death Sentenced Cases and Their Reversals, 1976-2015"
The title of htis post is the title of this new reseach paper by Frank Baumgartner and Tim Lyman now available via SSRN. Here is the abstract:
Since 1976, Louisiana’s experience with capital punishment has been deeply dysfunctional, with a significantly higher case reversal rate than the national average, and marked disparities in sentencing, reversals, and executions depending on the race and gender of the victim and accused. Our comprehensive analysis of each of 241 death-sentence cases in the post-Gregg period suggests that the “modern” death penalty has not resolved the issues of arbitrariness and bias that concerned the US Supreme Court in the 1972 Furman decision, which invalidated previous death penalty statutes throughout the country.
Among 155 resolved death-sentence cases, there have been 127 reversals (of which nine were exonerations) and 28 executions. Since 2000, Louisiana has seen 50 reversals of previous death sentences, including seven exonerations, and only two executions.
Not only are these reversal rates extremely high, but the racial discrepancies are shocking as well. Death sentences are imposed in 0.52% of cases with black male offenders and black male victims, but in 15.56% of cases with black male offenders and white female victims — 30 times more likely. No matter the race of the offender, killers of whites are more than six times more likely to receive a death penalty than killers of blacks, and 14 times more likely to be executed. The racial disparities even extend into the appeals process, where cases of killers of whites are clearly less likely to be reversed. No white person has been executed in Louisiana for a crime against a black victim since 1752.
Wednesday, April 13, 2016
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)
Monday, April 11, 2016
Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?
The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama. The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.
Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea. (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.) But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial. Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.
Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial. Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.
Friday, April 08, 2016
Latest USSC retroctivity data suggest prison savings approaching $2 billion from drugs-2 guideline amendment retroactivity
The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."
The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $1.9 billion dollars.
As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.
Saturday, April 02, 2016
"Racial Disparities in Youth Commitments and Arrests"
The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:
Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half. Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years. Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.
Both white youth and youth of color attained substantially lower commitment rates over these 10 years. For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000). The combined effect was to increase the commitment disparity over the decade. The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).
As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely. Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.
Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent. Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.
Thursday, March 24, 2016
Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels
Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:
Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.
A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.
Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....
The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.
Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.
Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:
We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days. “The incredible databases of what we have for sports just blow away anything there is in criminal justice. It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”
Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short. One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons. So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.
Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison. The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system. To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year. After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.
While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be. The punishment rate depends on the number of crimes reported by the FBI. But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft. It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations. Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.
“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said. “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”
The other trouble with the punishment rate is in the lag between crime and judgment. Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes. It also doesn't look at what crimes those in prison were convicted of. So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011. That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.” But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”
I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.
Tuesday, March 22, 2016
DOJ bragging about Smart on Crime initiative focusing on "more significant drug cases"
Yesterday the Department of Justice issued this official press release titled "New Smart on Crime Data Reveals Federal Prosecutors Are Focused on More Significant Drug Cases and Fewer Mandatory Minimums for Drug Defendants." Here is how the release gets started:
The Justice Department today revealed new data from its innovative Smart on Crime Initiative that show charging decisions by federal prosecutors in fiscal year 2015 resulted in prosecutors' focusing on more serious drug cases and fewer indictments carrying a mandatory minimum. Meanwhile, prosecutions of high-level drug defendants have risen and cooperation and plea rates remained effectively the same.
“The promise of Smart on Crime is showing impressive results,” said Deputy Attorney General Sally Q. Yates. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders. By ensuring fair and proportional sentencing, these policies engender greater trust in our criminal justice system, save federal resources and make our communities more safe. "
As part of the department’s Smart on Crime Initiative — announced in August 2013 — federal prosecutors were instructed to ensure the department’s finite resources are devoted to the most important law enforcement priorities implicating substantial federal interests and to promote fair enforcement of our laws, especially for low-level, non-violent drug offenders.
Since that announcement, prosecutions of serious drug defendants — such as those involving a weapon or leaders of a conspiracy — have increased, and there has been virtually no change in the rates at which defendants cooperate with the government or plead guilty. During the same time, the department has seen steady reductions in charges that trigger mandatory minimums and fewer federal drug charges for low-level, non-violent offenders.
Notably, this Politico article reports that not everyone may think these developments represent good news:
Some lawmakers have sounded skeptical that lowering the number of federal drug prosecutions is something the Obama administration should be celebrating. "I've heard that argument that 'we're always focusing on higher people that's why the numbers are down' for over 25 years. I do not believe that," Sen. Jeff Sessions (R-Ala.) said at a Senate Judiciary Committee hearing earlier this month. "
Sessions acknowledged that the federal prisons are saving money as a result of fewer convicts coming their way, but he questioned the wisdom of that approach as heroin use has picked up dramatically across the country. "The prison population is declining at a rapid rate. It was 5,000 down last year. The budget for the prisons is being reduced as a result of a substantial decline in population. And at the same time, the drug use is surging and death are occurring. And on my opinion, it's going to get worse," Sessions said.
However, Yates said Monday she remains hopeful that Congress will pass criminal justice reform legislation that will give federal prosecutors and judges even more discretion in drug cases. "At the risk of sounding maybe naïve and overly optimistic, I really believe we have a very good chance of getting sentencing reform because it’s one of the few things out there for which there really is bipartisan support," the deputy attorney general said. "We have people on both ends of the spectrum that actually agree that this needs to happen, so you got to hope that when you have that, that we can actually bring this over the finish line.”
Tuesday, March 15, 2016
"Is Proposition 47 to Blame for California's 2015 Increase in Urban Crime?"
The question in the title of this post is a question a lot of persons who are following the broader national debate over sentencing reform are asking (as highlighted via this post by Bill Otis over at Crime & Consequences). It is also the title of this new research report authored by a researcher at the Center on Juvenile and Criminal Justice. Here is the full textual of the introduction to the eight-page CJCJ report:
In November 2014, nearly 60 percent of California’s electorate voted to pass Proposition 47. This proposition made substantial sentencing reforms by reducing certain nonviolent, non-serious offenses, such as minor drug possession and shoplifting, from felonies to misdemeanors (CJCJ, 2014). Because the changes made by the new law applied retroactively, incarcerated people serving felony sentences for offenses affected by Proposition 47 were eligible to apply for resentencing to shorten their sentences or to be released outright. Those who already completed felony sentences for Proposition 47 offenses could also apply to change their criminal records to reflect the reforms.
Critics of Proposition 47 contended it would increase crime by releasing those convicted of dangerous or violent felonies early (see “Arguments Against Proposition 47,” 2014). Opponents also suggested that reducing the severity of sentences for certain felonies would fail to deter people from committing crimes or completing court-ordered probation requirements.
In the initial months following the passage of Proposition 47, California’s jail population dropped by about 9,000 between November 2014 and March 2015 (the most recent date for which county jail figures are available at this time) (BSCC, 2016). State prisons reported over 4,500 releases attributed to Proposition 47 (CDCR, 2016), for a total incarcerated population decline of more than 6 percent — a substantial decrease. Similar to the initial year after Public Safety Realignment took effect, January-June 2015 saw general increases in both violent and property crime in California’s cities with populations of 100,000 or more (Table 1). During this period, homicide and burglary showed slight declines, while other Part I violent and property offenses experienced increases.
Is Proposition 47 to blame for the increases in reported urban crimes? This report tests this question by comparing changes in crime rates, from January–June 2014 and January–June 2015, in California’s 68 largest cities to changes in: (a) county jail populations and (b) Proposition 47-related discharges and releases from prison to resentencing counties.
March 15, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, National and State Crime Data, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (4)
Wednesday, March 09, 2016
US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"
I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:
Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.
The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.
The Commission also found that:
- Most offenders who recidivated did so within the first two years of the follow up period;
- Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
- An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
- An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).
I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.
Sunday, March 06, 2016
In praise of (impossible?) request tasking Government Accountability Office with accounting for "the cost of crime in the United States"
I was quite pleased to discover this notable press release from the House Judiciary Committee reporting on a notable letter sent by two Representatives to the Comptroller General. Here is the substantive heart of both the press release and the letter:
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Congressman Steve King (R-Iowa) have requested that the Government Accountability Office (GAO) study the cost of crime in the United States to better inform members of the House Judiciary Committee as it continues its bipartisan criminal justice reform initiative. In 2014, there were nearly 1.2 million violent crimes and 8.3 million property crimes in the United States, generating substantial costs for Americans, communities, and the country. In a letter to Comptroller General Gene Dodaro, Goodlatte and King request that the GAO study this issue and breakdown the cost of crime for federal, state, and local governments.
Below is the text of the letter....
Dear Comptroller General Dodaro:
In June of last year, the House Judiciary Committee launched a criminal justice reform initiative. Over the ensuing months, the Committee has addressed a variety of criminal justice issues through legislation. In order to assist our efforts in this endeavor, we are writing to you regarding our concerns about the cost of crime in the United States. According to the Federal Bureau of Investigation, there were an estimated 1,165,383 violent crimes and an estimated 8,277,829 property crimes in 2014. Undoubtedly, these and other crimes generate substantial costs to society at individual, community, and national levels.
Accordingly, we seek the assistance of the Government Accountability Office in fully investigating the cost of crime in the United States. Specifically, we are interested in:
- The cost of Federal and State crimes to victims of crime:
- Total cost
- Cost by state
- The cost of crime to the United States economy and to state economies
- The cost of crime to Federal, State, and local governments
- The cost of crime, per year:
- Per type of criminal offense
- Average cost per criminal
- Average cost per victim
- The rate of recidivism of offenders who are released from terms of imprisonment, and the costs described under #1 through #3 for crimes committed by such offenders subsequent to their release
We look forward to working with you so that GAO can expeditiously complete this important task.
I am already very excited to see what the GAO comes up with as it takes up this request to "study the cost of crime in the United States." Indeed, upon seeing this press release, I started thinking it was quite notable and somewhat curious that there apparently has not been any prior requests for the GAO to engaging in what I agree is an "important task."
That said, I think this task has to start with important and challenging questions that are integral to defining what kinds of "Crimes" and what kinds of "costs" are to be included in this study and its efforts at accounting. Notably, this letter references the "nearly 1.2 million violent crimes and 8.3 million property crimes in the United States" as reported by the FBI, but this accounting leaves out what would seem to be some of the most wide-spread significant crimes in America according to various measures of nationwide illegal behaviors each year, namely drunk driving (with over 100 million estimated yearly incidents) and marijuana trafficking (over 50 million estimated incidents). Should the GAO leave out drunk driving incidents unless one includes a physical harm to persons or property? Should the GAO leave out marijuana offenses altogether in its accounting even though roughly half of all drug arrests nationwide are for these offenses and those arrests have various obvious economic costs to governments?
Ultimately, though, the challenge of defining what "crimes" to consider pales in comparison to defining what "costs" to consider in this kind of study. The majority of violent crimes recorded by the FBI are aggravated assaults, which are "an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury." And these kinds of assaults seem to come in all shapes and sizes in 2014 according to FBI data: Of those reported to law enforcement, "26.9 percent were committed with personal weapons, such as hands, fists, or feet. Firearms were used in 22.5 percent of aggravated assaults, and knives or cutting instruments were used in 18.8 percent. Other weapons were used in 31.9 percent of aggravated assaults." Can GAO reasonably guess that the "costs" to a victim of being severely beaten by fists are less (or perhaps more) than the costs of being shot? Do these costs turn significantly on the nature of the victim based on their age, health, gender or professional activities? If such an assault requires a person to say in bed for a week to recover, should we say the "costs" of missed acitivities are the same or are different for, say, a sales clerk or a student or an unemployed person?
Critically, as the image reprinted here highlights, doing these calculations is possible if you make a lot of assumptions. Indeed, the Rand Corporation has run these numbers in the past, although many questions and concerns could obviously be raised about its accounting decisions.
Thursday, March 03, 2016
"This Morning’s Breakfast, Last Night’s Game: Detecting Extraneous Influences on Judging"
The title of this post is the title of this notable new empirical article on SSRN authred by Daniel Chen, which actually has some encouraging federal sentencing findings. Here is the abstract (with the sentencing story highlighted):
We detect intra-judge variation in judicial decisions driven by factors completely unrelated to the merits of the case, or to any case characteristics for that matter. Concretely, we show that asylum grant rates in US immigration courts differ by the success of the court city’s NFL team on the night before, and by the city’s weather on the day of, the decision. Our data including half a million decisions spanning two decades allows us to exclude confounding factors, such as scheduling and seasonal effects. Most importantly, our design holds the identity of the judge constant.
On average, US immigration judges grant an additional 1.5% of asylum petitions on the day after their city’s NFL team won, relative to days after the team lost. Bad weather on the day of the decision has approximately the opposite effect. By way of comparison, the average grant rate is 39%. We do not find comparable effects in sentencing decisions of US district courts, and speculate that this may be due to higher quality of the federal judges, more time for deliberation, or the constraining effect of the federal sentencing guidelines.
Thursday, February 25, 2016
"Does Smarter Sentencing Equal Lower Prison Numbers?"
The title of this post is the headline of this lengthy new piece by Adam Wisnieski at The Crime Report, which is largely a report on what various experts are saying about the impact of modern sentencing reforms on prison populations. I recommend the piece in full, and here are some excerpts (with a few of the original's links preserved):
Most analysts agree that states have been much further ahead than the feds on these issues. For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level. The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support — but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.
There’s no shortage of voices about what type of impact that bill would have. But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.” Have states been successful? Experts contacted by The Crime Report had different views.
Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation. “We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”
Other researchers disagree, saying there is more smoke than fire in state efforts. Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem. “Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”
Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing. In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem. “What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”...
About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.
That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago. From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.
That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008. Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress. The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111. “The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.
Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded. “While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”
Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system. “The problem with tweaking things is they have to be implemented by somebody,” he said....
One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia. In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes. Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.
If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity. The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.
So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done. “Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”
Wednesday, February 24, 2016
"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"
The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki. Here is the abstract:
White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups. In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications. This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.
The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences. It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress. This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant. We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range. The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president. Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.
The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.
February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)
Monday, February 22, 2016
"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing
The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story. The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:
This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others. Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions). In both instances, the government must make a motion for a lower sentence.
This publication discusses the history and current use of Fed. R. Crim. P. 35(b). It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions. The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures.
A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:
Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions. There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.
Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range. This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.
Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.
Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures. This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence. The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.
Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.
Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.
February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Friday, February 19, 2016
"Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction"
The title of this post is the title of this new paper by Heather Garretson now available via SSRN. Here is the abstract:
Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record.
States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism — often a certificate of some kind — that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has — until now — been assumed, but not examined.
New York State has the oldest and most robust certificate system, and is a model for much of the recent certificate legislation. This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work — and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox.
Thursday, February 18, 2016
"U.S. Prison Population Trends 1999-2014: Broad Variation Among States in Recent Years"
The title of this post is the title of this notable short "fact sheet" from The Sentencing Project. Here is the text that goes with the graphical state-by-state data in the document
The number of people in prison in the United States has stabilized in recent years, but incarceration trends among the states have varied significantly. While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest. In addition, 11 states have had continuing rises in imprisonment.
Twelve states have produced double-digit declines within this period. Four states have reduced their prison populations by over 20%: New Jersey (31% since 1999), New York (28% since 1999), Rhode Island (25% since 2008), and California (22% since 2006, though partly offset by increasing jail use). Southern states including Mississippi and South Carolina, which have historically had high rates of incarceration, have also significantly downsized their prison populations. These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. Moreover, the states with the most substantial reductions have had no adverse effect on public safety.
The overall pace of change, though, is quite modest given the scale of incarceration. The total U.S. prison population declined by 2.9% since its peak in 2009. Of those states with declining prison populations, 20 have had less than a 5% decline since their peak years. The reduction in the federal prison population has been of this magnitude as well, 2.9% since 2011. And of the states with rising prison populations, four have experienced double-digit increases in the last five years, led by Nebraska (22%) and Arkansas (18%). While sharing in the national crime drop, these states have resisted the trend toward decarceration.
Just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, so too have declines reflected changes in both policy and practice. These have included such measures as drug policy sentencing reforms, reduced admissions of technical parole violators to prison, and diversion options for persons convicted of lower-level property and drug crimes.
Thursday, February 11, 2016
Notable data on racial and gender dynamics of recent changes in incarceration rates
This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:
After decades of growth, the U.S. imprisonment rate has been declining for the past six years. Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.
The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent. These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.
A similar pattern emerges for men, who compose a much larger share of the prison population. The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000. As a result, the racial disparity has shrunk by nearly one quarter.
In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.” Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."
Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.” Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.
Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.” Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....
Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.
Saturday, February 06, 2016
"Was there a Ferguson Effect on crime rates in large U.S. cities?"
The question in the title of this post is the title of this notable new research paper authored by a quartet of sociologists and criminologists and available now via ResearchGate. Here is the abstract:
Purpose: There has been widespread speculation that the events surrounding the shooting death of an unarmed young black man by a white police officer in Ferguson, Missouri — and a string of similar incidents across the country — have led to increases in crime in the United States. This study tested for the “Ferguson Effect” on crime rates in large U.S. cities.
Methods: Aggregate and disaggregate monthly Part I criminal offense data were gathered 12 months before and after August 2014 from police department data requests and websites in 81 large U.S. cities. The exogenous shock of Ferguson was examined using a discontinuous growth model to determine if there was a redirection in seasonality-adjusted crime trends in the months following the Ferguson shooting.
Results: No evidence was found to support a systematic post-Ferguson change in overall, violent, and property crime trends; however, the disaggregated analyses revealed that robbery rates, declining before Ferguson, increased in the months after Ferguson. Also, there was much greater variation in crime trends in the post-Ferguson era, and select cities did experience increases in homicide. Overall, any Ferguson Effect is constrained largely to cities with historically high levels of violence, a large composition of black residents, and socioeconomic disadvantages.
Conclusions: The national discourse surrounding the “Ferguson Effect” is long on anecdotes and short on data, leaving criminologists largely on the sidelines of a conversation concerning one of the most prominent contemporary issues in criminal justice. Our findings are largely consistent with longstanding criminological knowledge that changes in crime trends are slow and rarely a product of random shocks.
Thursday, February 04, 2016
"Obey All Laws and Be Good: Probation and the Meaning of Recidivism"
The title of this post is the title of this timely new article authored by Fiona Doherty and now available via SSRN. Here is the abstract:
Probation is the most commonly imposed criminal sentence in the United States, with nearly four million adults currently under supervision. Yet the law of probation has not been the focus of sustained research or analysis. This Article examines the standard conditions of probation in the sixteen jurisdictions that use probation most expansively. A detailed analysis of these conditions is important, because the extent of the state’s authority to control and punish probationers depends on the substance of the conditions imposed.
Based on the results of my analysis, I argue that the standard conditions of probation, which make a wide variety of noncriminal conduct punishable with criminal sanctions, construct a definition of recidivism that contributes to overcriminalization. At the same time, probationary systems concentrate adjudicative and legislative power in probation officers, often to the detriment of the socially disadvantaged. Although probation is frequently invoked as a potential solution to the problem of overincarceration, I argue that it instead should be analyzed as part of the continuum of excessive penal control.
Monday, February 01, 2016
Notable new parallel studies on comparable execution patterns in two notable states
Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:
There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing. For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions." These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.
Thursday, January 28, 2016
"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"
The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:
Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.
Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
Tuesday, January 19, 2016
New FBI data indicates violent crime up, property crime down in first half of 2015
This new official FBI press release reports on preliminary crime data for the first six months on 2015, and the basic story is not encouraging. Here are the details via the parts of the release:
Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall declines in the number of property crimes reported and overall increases in the number of violent crimes reported for the first six months of 2015 when compared with figures for the first six months of 2014. The report is based on information from 12,879 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2014 and 2015.
All of the offenses in the violent crime category — murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery — showed increases when data from the first six months of 2015 were compared with data from the first six months of 2014. The number of rapes (legacy definition) increased 9.6 percent, the number of murders increased 6.2 percent, aggravated assaults increased 2.3 percent, the number of rapes (revised definition) rose 1.1 percent, and robbery offenses were up 0.3 percent.
Violent crime increased in all but two city groupings. In cities with populations from 50,000 to 99,999 inhabitants, violent crime was down 0.3 percent, and in cities with 500,000 to 999,999 in population, violent crime decreased 0.1 percent. The largest increase in violent crime, 5.3 percent, was noted in cities with 250,000 to 499,999 in population.
Violent crime decreased 3.3 percent in non-metropolitan counties but rose slightly, 0.1 percent, in metropolitan counties.
Violent crime increased in all but one of the nation’s four regions. These crimes were down 3.2 percent in the Northeast but increased 5.6 percent in the West, followed by rises of 1.6 percent in the South and 1.4 percent in the Midwest.
In the property crime category, burglary offenses dropped 9.8 percent, and larceny-theft offenses decreased 3.2 percent in the first six months of 2015 compared with the same months from 2014. Only motor vehicle theft showed an increase (1.0 percent).
Each of the city population groups had decreases in the overall number of property crimes. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 7.1 percent.
Property crime decreased 12.3 percent in non-metropolitan counties and 6.0 percent in metropolitan counties.
The West was the only region to show an increase (2.4 percent) in property crime. Reports of these offenses declined 8.0 percent in the Northeast, 7.0 percent in the Midwest, and 6.4 percent in the South.
Thursday, January 14, 2016
"More Prison, Less Probation for Federal Offenders"
The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years. Here is the heart of the text of the document (with my emphasis added):
Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.
Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.
Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.
In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.
Friday, January 08, 2016
Is mass incarceration contributing to the dumbing down of America?
The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education." As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:
According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending. Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.
According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States. Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.
That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....
The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....
Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.
In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”
Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”
The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link. The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).
Thursday, January 07, 2016
"The Fog Around Cost-Benefit Studies of Crime and Punishment May Finally Be Clearing: Prisoners and Their Kids Suffer Too"
The title of this post is the title of this new essay authored by Michael Tonry and available via SSRN. Here is the abstract:
Cost-benefit and cost-effectiveness studies of crime control and punishment have proliferated since the late-1980s. Especially in relation to crime prevention programs and punishment policies they have been hugely, and regrettably, influential. “Regrettable” because many have relied on exaggerated estimates of “intangible costs” of victimization so unrealistically high that that almost any sanctioning policy no matter how severe could be shown to be effective.
Likewise, almost any prevention program estimated to have prevented rapes or robberies could be shown to generate benefits in excess of costs. Estimates for rape and homicide were greatly exaggerated because they were initially based on jury damage awards in civil law suits, the right hand tale of any crime distribution because a successful lawsuit depends on the presence of an egregious crime and one or both of a highly sympathetic victim and a wealthy or well-insured defendant. The latter are not common characteristics of rape and homicide defendants.
More recent studies have relied on statistical life valuations ranging from $0.7 to 26.4 million, a range so wide that any number chosen is inherently arbitrary. Recent work, however, has shown that studies relying on estimates of intangible victim costs are fundamentally flawed for the reasons described and others.
Are there any clear data patterns linking marijuana reforms and broader criminal justice developments?
The somewhat cumbersome question in the title of this post is prompted by the number crunching appearing in this interesting data-focused new piece by Jon Gettman via High Times titled ""Pot Matters: Marijuana in the Larger Context of Criminal Justice Reform." Here are excerpts:
The Bureau of Justice Statistics has recently release their annual data on correctional populations in the United States, comparing the latest data (from 2014) with prior years. This data on people under correctional supervision consists of totals of people incarcerated in either jail or prison, those on probation, or released on parole. This data does not include information on the offenses committed by people under correctional supervision. The big headline is that the total population of people under the watchful eye of the correctional supervision is declining.
In 2014, there were 6,851,000 people in the system, a decline of 52,200 offenders from 2013. The overall rate of 2.8 percent of adults in the United States being under some form of correctional supervision is the lowest since 1996. The correction population has been declining by an annual average of one percent since 2007. The incarcerated population increased slightly (by 1,900) in 2014, and most of the decrease over time has been in the area of community supervision (probation and parole). Reducing the number of marijuana arrests in a jurisdiction is an easy way to reduce the burden on probation officers given that many marijuana possession offenses result in probation....
From 2005 to 2014, the total correctional population in the United States fell by 241,000 from 7,055,600 to 6,814,600. Actually, the federal population increased by 33,500 in this period, but the state population fell by 274,500. However, the correction population increased in 26 states by a total of 283,100. It fell in 24 states and the District of Columbia by 557,300.
So which states are increasing their correctional populations? The biggest increases from 2005 to 2014 were in Georgia (48,000), Pennsylvania (47,500), Kentucky (30,700), Colorado (25,500) and Tennessee (20,600). The other states rounding out the top 10 were Alabama, Mississippi, Virginia, Arizona and Iowa.
The biggest decreases in correctional populations were in California (-160,700), Massachusetts (-101,800), Florida (-49,300), New York (-38,400) and Texas (-34,500). The rest of the top 10 in reduced correctional populations were New Jersey, Illinois, Minnesota, Connecticut and North Carolina.
There is no clear pattern here with respect of state marijuana laws, but there is an interesting trend worth noting. States that rely more on community supervision than incarceration often have reformed their marijuana laws....
Of the 15 jurisdictions with the highest levels of community supervision, in addition to Georgia, seven of them have decriminalized or legalized marijuana (Washington D.C., Minnesota, Ohio, Massachusetts, Washington, Oregon and Maryland). Increasing the list to 16 adds Colorado. Other states in this group of 16 have medical marijuana laws (Rhode Island, Hawaii, New Jersey, Vermont and Michigan).
Marijuana law reform and legalization are sound policies with great merit, but they are also part of a larger issue in the United States, the reform of the criminal justice system in ways that reduce the number of people under correctional supervision. This has always been part of the argument for legalizing cannabis — the justice system should stop wasting resources on marijuana users and divert them to violent offenders.
The recent trends in correctional supervision data present good news and bad news when it comes to the legalization of cannabis. The good news is that many states are receptive to criminal justice reform, particularly ones that have already made a commitment to community supervision as an alternative to incarceration. These states, and states that are reducing their correctional populations, may be the most receptive to ending arrests for marijuana offenses.
The bad news is that other states remain committed to increasing arrests and increasing correctional populations. These states, their criminal justice professionals and their political leaders will present the greatest challenges to the legalization of cannabis throughout the United States.
I would be very eager for readers to point me to any other research or data sets starting to look at whether and how a state's approach to marijuana reform may (or may not) be incfluencing other criminal justice developments in the state. And, of course, anyone just generally interested in marijuana reform ought to be regularly checking out my Marijuana Law, Policy & Reform blog. Here are links to a few recent posts from that locale:
- Should we expect any major federal marijuana reform developments in 2016?
- Two different prespectives on the coming marijuana reform future
- Gearing up for historic 2016 in the arena of marijuana law, policy and reform
- MPP Director provides Top 10 accounting of marijuana reform achievements in 2015
- SAM Prez provides Top 10 accounting of marijuana reform difficulties in 2015
Tuesday, January 05, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
Friday, January 01, 2016
Federal criminal caseload highlights from Chief Justice's "2015 Year-End Report on the Federal Judiciary"
The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary. The 2015 version from Chief Justice John G. Roberts is available here, and it includes an Appendix on the Workload of the Courts with some notable federal criminal justice details. Here are those details:
In the 12-month period ending September 30, 2015, caseloads decreased in the Supreme Court, the regional appellate courts, the district courts, the bankruptcy courts, and the pretrial services system. Growth occurred, however, in the number of persons under post-conviction supervision....
In the regional courts of appeals, filings dropped four percent to 52,698. Appeals involving pro se litigants, which amounted to 51 percent of filings, fell four percent. Total civil appeals decreased seven percent. Criminal appeals rose three percent, as did appeals of administrative agency decisions, and bankruptcy appeals grew seven percent....
Cases with the United States as defendant dropped seven percent in response to fewer filings of prisoner petitions and Social Security cases. Cases with the United States as plaintiff went down 10 percent as filings of forfeiture and penalty cases and contract cases decreased.
Filings for criminal defendants (including those transferred from other districts) held relatively steady, declining one percent to 80,069. Defendants accused of immigration violations dropped five percent, with the southwestern border districts receiving 79 percent of national immigration defendant filings. Defendants charged with property offenses (including 15 fraud) fell six percent. Other reductions were reported for filings involving traffic offenses, general offenses, regulatory offenses, and justice system offenses. Drug crime defendants, who accounted for 32 percent of total filings, rose two percent. Increases also occurred in filings related to firearms and explosives, sex offenses, and violent crimes....
A total of 135,468 persons were under post-conviction supervision on September 30, 2015, an increase of two percent over the total one year earlier. Of that number, 114,961 persons were serving terms of supervised 16 release after leaving correctional institutions, a three percent increase from the prior year. Cases activated in the pretrial services system, including pretrial diversion cases, fell five percent to 95,013.
Tuesday, December 29, 2015
New BJS data show continued (very) slow decline in correctional populations in US
One of the many joys of the holiday season for data junkies is new releases of new official reports from the Bureau of Justice Statistics. This latest one, excitingly titled "Correctional Populations in the United States, 2014," was released today at this BJS webpage where one can also find this summary of the report's basic coverage main findings:
Presents statistics on persons supervised by adult correctional systems in the United States at yearend 2014, including offenders supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2014. It details the downward trend in the correctional population and correctional supervision rate since 2007. It also examines the impact of changes in the community supervision and incarcerated populations on the total correctional population in recent years. Findings cover the variation in the size and composition of the total correctional population by jurisdiction at yearend 2014. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for select years.
- Adult correctional systems supervised an estimated 6,851,000 persons at yearend 2014, about 52,200 fewer offenders than at yearend 2013.
- About 1 in 36 adults (or 2.8% of adults in the United States) was under some form of correctional supervision at yearend 2014, the lowest rate since 1996.
- The correctional population has declined by an annual average of 1.0% since 2007.
- The community supervision population (down 1.0%) continued to decline during 2014, accounting for all of the decrease in the correctional population.
- The incarcerated population (up 1,900) slightly increased during 2014.
Monday, December 28, 2015
Notable (lack of) big crime news emerging from the Big Apple
Sentencing and police reform opponents on the right and gun control advocates on the left have been making much of what appears to be a notable uptick in violent crimes using firearms in many cities. But even if there was strong and consistent data showing widespread increases in violent gun crimes throughout the US throughout 2015, I would be somewhat chary about using short-term crime data alone as the basis for drawing long-term conclusions about the pros and cons of various criminal justice reforms.
Ever the consequentialist, I do view serious violent crime rates as the single most important criminal justice metric for would-be criminal justice analysts and reformers. But I also believe lots of (hard-to-assess in real-time) social and practical factors can have a major short-term impact on how much crime is committed and reported. Consequently, I think it can be problematic and even dangerous for political and legal actors to over-react (positively or negatively) to any seemingly major short-term crime data changes.
That all said, this new New York Times article suggests that, at least in one major city, there may not be any major short-term crime data changes for political and legal actors to over-react to. The article, headlined "Anxiety Aside, New York Sees Drop in Crime," gets started this way:
Homeless encampments proliferated. Two officers, confronting armed men, were shot and killed. And many New Yorkers said they felt less safe. But fears that New York City was slipping back to a more dangerous time contrasted with reality.
As reflected in the reported levels of the most serious types of crime, the city in 2015 was as safe as it had been in its modern history. A modest decrease in reported crime is expected by year’s end.
The Police Department is reporting a 2 percent decline, as measured by seven major felonies that are tracked by the Federal Bureau of Investigation: murder, rape, robbery, serious assault, burglary, grand larceny and car theft. At the same time, arrests recorded by officers fell steeply, to 333,115 through Dec. 20, down 13 percent from 384,770 over the same period the year before. The number of criminal summonses dropped to 292,372 from 358,948.
There was a small rise in murders, to 339 as of Dec. 25, already more than last year’s historic low of 333. Still, the number is well below the 536 murders recorded five years ago. And despite an early increase in gun violence, the final tally of shootings for the year is set to come in slightly lower than last year’s figure.
“As we end this year, the City of New York will record the safest year in its history, its modern history, as it relates to crime,” said Commissioner William J. Bratton, summing up 2015 in an address to officers at a Dec. 17 promotion ceremony. But, he added, the past 12 months had also been “terrible” for the department because of the loss of four officers in the line of duty since late last December. “It has been a year of great contradictions,” he said, struggling for words.
The overall crime statistics, of course, do not capture the increasing presence of homeless people on the streets and in shelters that has bedeviled the administration of Mayor Bill de Blasio, while contributing to a creeping unease among New Yorkers.
But the disconnect may run deeper. Since summer 2014, the country has seen one protest after another over fairness in the criminal justice system, prompted by the deaths of Eric Garner, Freddie Gray and other black people in confrontations with the police. The outcry, and the occasional outbreaks of protestrelated violence, have led some to argue that criticism of the police has undermined law enforcement, empowering criminals and sowing urban disorder.