Tuesday, March 14, 2017

Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"

Pie2017The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.

All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.

And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

March 14, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, March 13, 2017

US Sentencing Commission releases 2016 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email I received this cursory report on the publication of lots of federal sentencing data that is anything but cursory:

The United States Sentencing Commission’s 2016 Annual Report and 2016 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2016.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2016. The Commission collected and analyzed data from approximately 315,000 court documents for nearly 68,000 federal criminal cases in the production of this year’s Sourcebook.

I am hoping to find time to churn over a lot of the data in these reports, but already from the start of the 2016 Annual Report these data items jumped out:

March 13, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

Friday, March 10, 2017

More interesting new Quick Facts on fraud sentencing from the US Sentencing Commission

I noted in this post earlier this week that the US Sentencing Commission had released the first of a new series of Quick Facts covering federal fraud sentencing with a focus on health care fraud cases. (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.")  I have now just noticed that the USSC released a number of other fraud-focused Quick Facts this week, and here are links to them:

Hard-core federal sentencing fans might make a parlor game of trying to guess which type of fraud has the most and which has the least sentences imposed within the calculated guideline ranges.

March 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (4)

Thursday, March 09, 2017

US Sentencing Commission releases another big recidivism report on federal offenders

The United States Sentencing Commission is continuing to publish important new data report about the recidivism rates and patterns of federal offenders.  This latest 44-page report is titled "The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders."  This page on the USSC's website provides this summary and highlights:

The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders examines a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005.  Information about the components of Chapter Four of the Guidelines Manual — including total criminal history score, criminal history category, and point assignments for types of past convictions — and their association with recidivism are contained in this report. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report.

Report Highlights

  • Consistent with its previous work in this area, the Commission found that recidivism rates are closely correlated with total criminal history points and resulting Criminal History Category classification, as offenders with lower criminal history scores have lower recidivism rates than offenders with higher criminal history scores.

  • The Commission found substantial differences in recidivism rates among Criminal History Category I offenders (which includes offenders with a criminal history score of zero or one point).  Less than one-third (30.2%) of Criminal History Category I offenders with zero points were rearrested while nearly half (46.9%) of offenders with one point were rearrested.

  • The Commission also found differences in recidivism rates among offenders with zero criminal history points. Offenders with zero points and no prior contact with the criminal justice system have a lower recidivism rate (25.7%) than offenders with zero points but some prior contact with the criminal justice system (37.4%).

  • Offenders who have less serious prior convictions (assigned one point) have a lower recidivism rate (53.4%) than offenders who have prior convictions assigned two or three points (71.3% for offenders with at least one two-point offense and 70.5% for offenders with at least one three-point offense).

March 9, 2017 in Data on sentencing, Detailed sentencing data, National and State Crime Data | Permalink | Comments (3)

Tuesday, March 07, 2017

Detailing how common a very long wait on death row has become

Slate has this notable short piece on the long wait many condemned have before execution.  The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual."  Here are excerpts:

In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama.  Nearly 40 years later, he is still waiting to be executed.  His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.

Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50.  (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)

According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers.  In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone.  These delays suggest that executions must be sped up significantly.... 

With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.

California is a prime example.  In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.”  The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.”  That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....

In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.

March 7, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Monday, March 06, 2017

Interesting new Quick Facts on federal health care fraud sentencing from the US Sentencing Commission

The US Sentencing Commission has released this notable new Quick Facts covering federal sentencing in health care fraud cases. (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.")  Here are a few of the intriguing data details from the the publication highlighting that within-guideline sentencing is actually the exception rather than the norm in these cases:

During the past three years, the rate of within range sentences for health care fraud offenders has decreased from 43.6% in fiscal year 2013 to 32.9% in fiscal year 2015.

In each of the past three years, approximately one-fifth to one-third of health care fraud offenders received a sentence below the applicable guideline range because the government sponsored the below range sentence....

In each of the past three years, approximately 34 percent of health care fraud offenders received a non-government sponsored below range sentence.

March 6, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (0)

Thursday, March 02, 2017

Remembering that many crimes go unreported to police and that those reported often go unsolved

FT_17.02.28_reportedCrime_310px3John Gramlich writing for the Pew Reseach Center has this new data brief reviewing basic data on crime reporting and resolution. The piece is headlined "Most violent and property crimes in the U.S. go unsolved," and here is how it gets started and concludes:

Only about half of the violent crimes and a third of the property crimes that occur in the United States each year are reported to police. And most of the crimes that are reported don’t result in the arrest, charging and prosecution of a suspect, according to government statistics.

In 2015, the most recent year for which data are available, 47% of the violent crimes and 35% of the property crimes tracked by the Bureau of Justice Statistics were reported to police. Those figures come from an annual BJS survey of 90,000 households, which asks Americans ages 12 and older whether they were victims of a crime in the past six months and, if so, whether they reported that crime to law enforcement or not.

Even when violent and property crimes are reported to police, they’re often not solved – at least based on a measure known as the clearance rate. That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution. In 2015, 46% of the violent crimes and 19% of the property crimes reported to police in the U.S. were cleared, according to FBI data.

Reporting and clearance rates for violent and property crimes have held relatively steady over the past two decades, even as overall crime rates in both categories have declined sharply. Between 1995 and 2015, the share of violent crimes reported to police each year ranged from 40% to 51%; for property crimes, the share ranged from 32% to 40%. During the same period, the share of violent crimes cleared by police ranged from 44% to 50%; for property crimes, annual clearance rates ranged from 16% to 20%.

There are several caveats to keep in mind when considering statistics like these. Like all surveys, the BJS survey has a margin of error, which means that the share of violent and property crimes reported to police might be higher or lower than estimated. The FBI clearance rate data, for their part, rely on information voluntarily reported by local law enforcement agencies around the country, and not all departments participate.

The FBI’s clearance rates also don’t account for the fact that crimes reported in one year might be cleared in a future year. In addition, they count some cases that weren’t closed through arrest, but through “exceptional means,” such as when a suspect dies or a victim declines to cooperate with a prosecution....

When it comes to deadly crimes, Chicago has drawn widespread attention recently for its historically low murder clearance rate in 2016. But murder is actually the crime that’s most likely to be solved, at least when looking at national statistics. In 2015, 62% of murders and non-negligent homicides in the U.S. were cleared. That rate hasn’t changed much since 1995, but it’s far lower than in 1965, when more than 90% of murders in the U.S. were solved.

March 2, 2017 in Data on sentencing, National and State Crime Data | Permalink | Comments (4)

Wednesday, March 01, 2017

Is anyone tracking comprehensively data on resentencings (and release and recidivism) of those aided by Graham and Miller?

The question in the title of the post was recently posed to me, and I did not have a good answer. But this seems like a timely question now that it has been nearly a full seven years since Graham v. Florida declared LWOP unconstitutional for juvenile non-homicide offenders and five years since Miller v. Alabama declared mandatory LWOP unconstitutional for juvenile homicide offenders. (Of course, it has only been a year since SCOTUS in Montgomery v. Louisiana declared Miller fully retroactive and thereby required a number of states to start dealing with Miller's impact on prior offenders.)

I know that the Campaign for the Fair Sentencing of Youth a few months ago produced this publication about legal reforms in the wake of Graham and Miller under the title "Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children."   But that report has more stories than numbers.  Similarly, two 2015 reports from the public interest firm Phillip Black, titled "Juvenile Life Without Parole After Miller" and "No Hope: Re-examining Lifetime Sentences for Juvenile Offenders," look mainly at state litigation and legislative responses to Graham and Miller.  The Fair Punishment Project has also done some significant work on juve LWOP, including some notable locality-specific analysis of post-Miller litigation, but I do not see any comprehensive or detailed data runs on its site.  The Juvenile Law Center, which has played an integral role in a lot of post-Miller state-court litigation, helped produced this thoughtful and detailed report on the import and impact of Graham and Miller under the title "The Supreme Court and the Transformation of Juvenile Sentencing."  But that report, which is already nearly two years old, also lacks any detailed empirics.

I have seen estimates of the population of juve LWOPers with sentences impacted by Graham and Miller to be around 2500, and I am hopeful and somewhat confident that someone somewhere is at least trying to track comprehensively data on how this population is being resentenced.  But I have not yet seen such data published, and perhaps I am wrong to assume that it is being systematically collected.

March 1, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Sentences Reconsidered | Permalink | Comments (2)

Tuesday, February 21, 2017

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Monday, February 20, 2017

Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?

I just came across this pair of notable papers exploring empirically whether and how less sleep might mean more punishment from federal judges:

"Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences" by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara

Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation.  Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions.  We propose that sleep deprivation in judges increases the severity of their sentences.  We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.

"Are Sleepy Punishers Really Harsh Punishers?: Comment" by Holger Spamann

Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.'s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.'s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.

February 20, 2017 in Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (3)

Tuesday, February 14, 2017

"The American Death Penalty Decline"

The title of this post is the title of this new paper recently posted to SSRN and authored by Brandon Garrett, Alexander Jakubow and Ankur Desai. Here is the abstract:

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.”  That decline has become more dramatic.  Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties.  In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year.

While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it.  This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016.  This analysis of death sentencing data from 1990 to 2016, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences.  We examine state and county-level changes in murder rates, population, victim race, demography, and other characteristics that might explain shifting death sentencing patterns.

We find that death sentences are strongly associated with urban, densely populous counties.  Second, we find that death sentences are strongly associated with counties that have large black populations.  Third, we find homicide rates are related to death sentencing in three ways: contemporaneously within and between death sentencing counties, lagged within and between death sentencing counties. and that counties with more white victims of homicide have more death sentencing.  Fourth, we find that death sentencing is associated with inertia or the number of prior death sentences within a county.  These results suggest what remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences.  We conclude by discussing the practical and legal implications of these trends for the much-diminished death penalty and for criminal justice more broadly.

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

Sunday, February 12, 2017

Is big data "reinforcing racial bias in the criminal justice system"?

The question in this post is prompted by this Washington Post commentary headlined "Big data may be reinforcing racial bias in the criminal justice system." The piece is authored by Laurel Eckhouse, a researcher with the Human Rights Data Analysis Group’s Policing Project at UC Berkeley, and here are excerpts:

Big data has expanded to the criminal justice system. In Los Angeles, police use computerized “predictive policing” to anticipate crimes and allocate officers. In Fort Lauderdale, Fla., machine-learning algorithms are used to set bond amounts. In states across the country, data-driven estimates of the risk of recidivism are being used to set jail sentences.

Advocates say these data-driven tools remove human bias from the system, making it more fair as well as more effective. But even as they have become widespread, we have little information about exactly how they work. Few of the organizations producing them have released the data and algorithms they use to determine risk.

We need to know more, because it’s clear that such systems face a fundamental problem: The data they rely on are collected by a criminal justice system in which race makes a big difference in the probability of arrest — even for people who behave identically. Inputs derived from biased policing will inevitably make black and Latino defendants look riskier than white defendants to a computer. As a result, data-driven decision-making risks exacerbating, rather than eliminating, racial bias in criminal justice....

We know that a black person and a white person are not equally likely to be stopped by police: Evidence on New York’s stop-and-frisk policy, investigatory stops, vehicle searches and drug arrests show that black and Latino civilians are more likely to be stopped, searched and arrested than whites. In 2012, a white attorney spent days trying to get himself arrested in Brooklyn for carrying graffiti stencils and spray paint, a Class B misdemeanor. Even when police saw him tagging the City Hall gateposts, they sped past him, ignoring a crime for which 3,598 people were arrested by the New York Police Department the following year.

Before adopting risk-assessment tools in the judicial decision-making process, jurisdictions should demand that any tool being implemented undergo a thorough and independent peer-review process. We need more transparency and better data to learn whether these risk assessments have disparate impacts on defendants of different races. Foundations and organizations developing risk-assessment tools should be willing to release the data used to build these tools to researchers to evaluate their techniques for internal racial bias and problems of statistical interpretation. Even better, with multiple sources of data, researchers could identify biases in data generated by the criminal justice system before the data is used to make decisions about liberty. Unfortunately, producers of risk-assessment tools — even nonprofit organizations — have not voluntarily released anonymized data and computational details to other researchers, as is now standard in quantitative social science research.

For these tools to make racially unbiased predictions, they must use racially unbiased data. We cannot trust the current risk-assessment tools to make important decisions about our neighbors’ liberty unless we believe — contrary to social science research — that data on arrests offer an accurate and unbiased representation of behavior. Rather than telling us something new, these tools risk laundering bias: using biased history to predict a biased future.

February 12, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, February 08, 2017

New report details stability of California crime rates during period of huge sentencing reform

UntitledThis new Fact Sheet produced by the Center on Juvenile and Criminal Justice tells and interesting and important story about crime in California.  The main prose of the report provides the data highlights:

Newly released Federal Bureau of Investigation (FBI) statistics for the first six months of 2016 show California’s reported urban crime rate remained stable from 2010 through 2016, despite the implementation of large-scale criminal justice reforms during that period.

Total urban crime fell in the first half of 2016 compared to the first half of 2015.

The first six months of 2016 saw a decline in California’s urban crime rate compared to the first six months of 2015, though trends in specific crime categories were wide-ranging. During this period, reported crime declined 3 percent overall, driven by a 4 percent reduction in property offenses.  Burglary, arson, and theft decreased, while vehicle theft increased, resulting in approximately 7,400 fewer property offenses in early 2016.  At the same time, violent crime rose 4 percent, with total violent offenses increasing by approximately 2,800 from early 2015 to early 2016.1

The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.

Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A).  Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent (see Table 1).

• Historically low urban crime rates have persisted through an era of justice reform.

Crime rates have remained low and stable through several major criminal justice reforms, particularly Public Safety Realignment and Proposition 47.  Realignment, which was enacted in 2011 through Assembly Bill 109, shifted responsibility for those with nonviolent, non-sexual, and non-serious convictions from the state to the county in an attempt to reduce prison populations.  In 2014, California voters passed Prop 47, which reduced six minor drug and property felonies to misdemeanors, prompting the resentencing and release of thousands from jails and prisons across the state. Though each policy was met with some initial concerns over public safety, a seven-year view of the data suggests that no visible change in crime resulted from Realignment (CJCJ, 2015). More data are needed before drawing conclusions about Prop 47’s effect on crime (CJCJ, 2016).

February 8, 2017 in Data on sentencing, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, January 31, 2017

"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"

The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:

Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences.  This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.

Most people serving life sentences were convicted of serious crimes.  Their incarceration was intended to protect society and to provide appropriate punishment.  But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.

Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety.  Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.  Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.

Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population.  Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%.  By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences.  Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO

January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, January 19, 2017

A revised empirical look at outcomes achieved by federal public defenders and court-appointed attorneys

In this post from this past summer I noted an intriguing empirical paper posted on SSRN by Yotam Shem-Tov in which the authored, after taking a deep dive into "data from all multiple defendant cases in federal courts between 2001-2014," reached the finding that "that defendants assigned a public defender in co-defendant cases had slightly worse outcomes."  A few federal public defenders let me know that the author was checking his data after receiving feedback, and the revised paper now, available here, carries a slightly different title and a significantly different key finding in its abstract:

"An Investigation of Indigent Defense Systems: Public Defenders vs. Court-Appointed Attorneys" by Yotam Shem-Tov

Abstract: To provide essential, constitutionally mandated legal services for defendants without financial means, US courts employ indigent defense systems composed of private court-appointed attorneys and public defenders’ organizations. I investigate the public defender’s causal effect on defendant sentencing outcomes relative to private court-appointed attorneys using a new “twins design” identification strategy. I argue and show empirically that in multiple defendant cases the decision of who is assigned to the public defender organization in jurisdiction X, a large urban locality, can be treated as close to a randomized experiment, which can be utilized to measure the effectiveness of court-appointed private attorneys relative to public defenders. I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes. Employing a similar identification strategy in federal courts finds that public defenders perform at least as well if not better then court-appointed attorneys in multiple defendant cases. I provide strong evidence of selection in the assignment of attorney types to defendants in both jurisdiction X and federal courts, which makes a naıve comparison invalid and misleading.

My understanding is that the new empirical analysis now more properly accounts for the fact that public defenders typically will represent the lead defendant (and thus the one usually most culpable defendant) in multiple defendant cases, and thus a proper analysis needs to account for this critical variable.

January 19, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, January 10, 2017

Interesting new report on impact of Prop 47 on drug arrests in California

Via email I received notice of this notable new research report, titled "Declinining Drug Enforcement After Proposition 47," coming from the Center on Juvenile and Criminal Justice and the Drug Policy Alliance. This executive summary provides the report's highlights:

In November 2014, California took a significant step toward reforming mass criminalization and over-incarceration by passing Proposition 47, a law that changed certain low-level crimes from potential felonies to misdemeanors, prioritizing drug treatment over punishment. Prop 47 reclassified three drug possession offenses (possession of a narcotic, concentrated cannabis, or a non-narcotic) and reinvested state savings in direct services. In 2015, the first full year after Prop 47, felony drug arrests fell by over 92,000 while misdemeanor drug arrests increased by only 70,000. Taken together, these shifts produced a 10 percent decline in total drug arrests.

In response to Prop 47’s reclassification statute, some law enforcement departments began redirecting drug enforcement resources to community policing or the enforcement of other, more serious, offenses. Critics of the policy, however, claim that it limits police authority and constrains the effectiveness of drug control, a contention that has led some law enforcement agencies to deemphasize the enforcement of Proposition 47-related offenses.

This report seeks to understand how enforcement and prosecution of drug possession offenses have changed after Prop 47 by analyzing arrests and citations made by Los Angeles and San Diego law enforcement, and charges filed by county prosecutors. Some of the findings include:

Prop 47 reduced inconsistencies in the classification of drug possession offenses as felonies or misdemeanors.  Prior to Prop 47, qualifying drug possession offenses could be prosecuted as misdemeanors, felonies, or “wobblers.” After the passage of Prop 47, these offenses are filed as misdemeanors, eliminating prosecutorial discretion and the presence of “justice-by-geography,” which can disproportionately impact low income communities and communities of color.

Drug arrests and citations were increasing in the years immediately preceding Prop 47.  From 2010-2014, arrests and citations for Prop 47 drug possession offenses increased in 72 percent of law enforcement agencies in Los Angeles and San Diego counties. Between 2014-2015, 58 percent of agencies reported declines.

Arrests and citations declined after Prop 47, but varied by county, city, and substance.  For example, while both San Diego and Los Angeles counties experienced declines in arrests and citations, Los Angles reported a decrease of 45 percent while San Diego reported 7 percent decline.

January 10, 2017 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, December 29, 2016

BJS releases three big reports on correctional populations throughout the United States

Via email today I received news of and links to a bunch of big data reports from the Bureau of Justice Statistics (which is part of the Office of Justice Programs at the U.S. Department of Justice). Here are the titles, links and descriptions of these notable new publications:

Correctional Populations in the United States, 2015

This report presents statistics on persons supervised by adult correctional systems in the United States at yearend 2015, including persons 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 2015. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for selected years.

Prisoners in 2015

This report presents final counts of prisoners under the jurisdiction of state and federal correctional authorities at yearend 2015, including admissions, releases, noncitizen inmates, and inmates age 17 or younger. The report describes prisoner populations by—

  • jurisdiction
  • most serious offense
  • demographic characteristics.

Selected findings on prison capacity and prisoners held in private prisons, local jails, and the U.S. military and territories are also included. Findings are based on data from BJS's National Prisoner Statistics program, which collects data from state departments of correction and the Federal Bureau of Prisons.

Jail Inmates in 2015

This report presents information on changes in the jail inmate population between 2000 and 2015 by—

  • demographic characteristics
  • conviction status
  • average daily population
  • rated capacity of local jails
  • percent of capacity occupied.

It also includes statistics, by jurisdiction size, on changes in the number of inmates, admissions, and weekly turnover rate from 2014 to 2015. Estimates and standard errors were based on BJS's Annual Survey of Jails.

December 29, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, December 26, 2016

The latest data from BJS on parole and probation populations throughout the United States

Not long ago, the Bureau of Justice Statistics released this report, titled "Probation and Parole in the United States, 2015," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the report:

December 26, 2016 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (1)

Wednesday, December 21, 2016

DPIC releases year-end report highlighting "historic declines" in use of the death penalty in 2016

NewDeathSentences1973-2016This press release from the Death Penalty Information Center, titled "Death Sentences, Executions Drop to Historic Lows in 2016," provides a summary of the DPIC's 2016 year-end report on the administration of the death penalty in the United States. Here is the text of the press release:

Death sentences, executions, and public support for capital punishment all continued historic declines in 2016.  American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972.  The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.

“America is in the midst of a major climate change concerning capital punishment.  While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report.  “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”

For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2).  Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.

This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions.  Only five states conducted executions this year, the fewest number of states to do so since 1983.  Two states -- Georgia, which had the most executions (9), and Texas, which had the second highest number (7) -- accounted for 80 percent of all executions in the U.S.  Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.

State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed.  The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states.  And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.

America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment.  At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices.  In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.

DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning.  This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.

I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because, as I have said before, I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.

December 21, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, December 16, 2016

Noticing that other states are now messing with Texas for being capital punishment's capital

This new Vice article, headlined "Texas Is No Longer America's Death Penalty Capital," reports on the unique features of 2016 in the modern history of the death penalty in the United States. Here are highlights:

Texas has long been the heartland of the death penalty in America. Since capital punishment was reinstated by the Supreme Court in 1976, the Lone Star State has executed 538 people — more than the next top six states combined. But 2016 saw a precipitous drop in the number of executions in the state. Thanks in part to new judicial scrutiny of death sentences, just seven Texans were executed this year, the fewest since 1996.

For the first time since 2001, Texas is not the most execution-happy state in the country — that grisly title belongs to Georgia, which executed nine people. This is the first year since 1984 that Texas didn't execute a single black person. And juries sentenced just three new Texas defendants to death for the second year in a row. The data was highlighted in a report released Thursday by the Texas Coalition to Abolish the Death Penalty [available here]....

One way to understand the decline is by looking at the people on death row who weren't executed. The Court of Criminal Appeals — the highest criminal court in the state — granted stays of execution to seven people who were scheduled to die this year, a higher number than normal: From 2012 through 2014, the court only granted three stays, according to the coalition. "The rising number of stays suggests that the Court of Criminal Appeals is registering the concerns about the fairness and accuracy of our state's capital punishment system," Kathryn Kase, executive director of the nonprofit criminal justice legal group Texas Defender Service, told me in an email. "These stays give the court opportunities to remedy the failures of past death penalty practices for which Texas has been roundly criticized."

In several of the cases where inmates received stays, the court leaned on a 2013 state law that gives inmates whose convictions were based on discredited science the opportunity for a new trial. Reformers say the law is among the most progressive in the country at fighting junk science in the courtroom.... Gregory Gardner, an attorney who represented two Texas death row defendants who received stays of execution this year — and a third client who was executed — believes the junk science law to be a powerful tool for defendants. "It shows how many convictions in the late 90s and the turn of the century were based on this crappy science that's been discredited," he said. "It's scary because we know people in Texas have been executed because of it in the past."

Of course, just because executions are down doesn't mean the ones taking place aren't still controversial. According to the anti-death penalty coalition's report, almost half of the people executed in the state in the last two years had a significant mental impairment. Similarly, the fact that Texas didn't execute any black people this year doesn't mean the death penalty is suddenly race-blind. All three of the Texas defendants sentenced to death in 2016 were black, and 80 percent of new death sentences in the state over the last five years have been imposed on people of color. Research has also consistently shown that murders of white victims are more likely to result in a death sentence than murders of minority victims....

And it's possible that Texas's slump in executions won't last. The state has already scheduled nine executions in the first six months of 2017. Even so, the reduction in new death sentences may augur a future where seven executions a year isn't celebrated as a noteworthy dip, but questioned as a macabre reality. "The courts are finally being more careful with these cases," Gardner told me. "We've seen the number of death sentences plummet, and I think that trend will continue."

December 16, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, December 06, 2016

"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."

The title of this post is the full headline of this new Atlantic piece.  Here is how it gets started (with links from the original):

Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.

“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”

The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement.  In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater.  Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population.  Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.

The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.

By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.  

For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.

December 6, 2016 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, November 29, 2016

Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?

Washington_terry1The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning.  The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:

Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.

Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities.  I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC.  I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.

Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas.  As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69.  But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence.  In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).

I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation.  Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled.  (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.)  Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.

Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.  My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins.  But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess.  For Bobby James Moore, this is obviously now a matter of life and death.  But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?

November 29, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, November 27, 2016

"Oregon Death Penalty: A Cost Analysis"

The title of this post is the title of this notable research report released earlier this month.  This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:

A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.

Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.

Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.

The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.

Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.

According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”

Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.

November 27, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, November 03, 2016

Notable new analysis of marijuana arrest rates and patterns acorss the nation

This new post at Marijuana.com, under the headline "Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows," appears to be reporting and analyzing some important new data on the impact of marijuana reform on some key criminal justice metrics.  Here are excerpts from the lengthy entry:

Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers. The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.

Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.

The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.

Among the key findings of the new Marijuana.com analysis are:

  • In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
  • Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
  • States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
  • The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.

In all, data were received from 25 states; 12 states provided arrest numbers for local and state police — many not filtered by agency — while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.....

The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization. Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.

While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.

Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law....

Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.

I find this report and its data quite interesting, but it is a bit opaque and ultimately further convinces me that one of the first (and non-controversial?) priorities for the new federal administration should be to try to collect and analyze data on modern marijuana enforcement nationwide . Of course, I think a priority for everyone interested in the marijuana reform space must include checking out my other blog where you can find these recent posts on various related topics:

November 3, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0)

Wednesday, November 02, 2016

How should Californians, as taxpayers, think about the state's competing death penalty initiatives?

The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Will ending the death penalty save California more money than speeding up executions?". Here are excerpts:

Past efforts to repeal the death penalty in California have centered on moral or ethical objections.  This year, proponents of Proposition 62, which would replace the punishment with life in prison without parole, are focusing on economics. Prominent supporters of the measure have repeatedly pointed out that the state’s taxpayers have spent $5 billion on the executions of only 13 people in almost 40 years. Online ads have urged voters to end a costly system that “wastes” $150 million a year.

“Sometimes, something is so broken it just can’t be fixed,” a voiceover says in one commercial, as a blue-and-white china vase shatters to the ground. “Let’s spend that money on programs that are proven to make us safer,” a crime victim pleads in another.  

But as voters weigh two dueling death penalty measures on the Nov. 8 ballot — one to eliminate executions, another to speed them up — researchers are at odds over the actual costs and potential savings of each. Independent legislative analysts, meanwhile, believe Proposition 62 could save taxpayers millions, while concluding that the fiscal impact of Proposition 66’s attempt to expedite death sentences is unknown.

Death penalty cases are often the most expensive in the criminal justice system because the costs associated with capital punishment trials and the incarceration of death row offenders are vastly higher. The expenses begin to accrue at the county level. Capital cases require two trials, one to decide the verdict and another the punishment. They require more attorneys, more investigators, more time and experts and a larger jury pool.

The costs grow as the state must pay to incarcerate inmates during a lengthy appeals process: The average cost of imprisoning an offender was about $47,000 per year in 2008-09, according to the nonpartisan state legislative analyst’s office. But housing a death row inmate can lead to an additional $50,000 to $90,000 per year, studies have found.

Paula Mitchell, a professor at Loyola Law School who is against the death penalty and has advised the Yes on Prop. 62 campaign, puts the cost of the entire death penalty system since 1978 at about $5 billion. That figure, updated from data compiled in a 2011 report, includes 13 executions since the death penalty was reinstated through a 1978 ballot measure and suspended in 2006 due legal challenges over its injection protocols. It also includes the cost of trials, lengthy appeals and the housing of nearly 750 inmates on California’s death row. The initial study estimated taxpayers spent $70 million per year on incarceration costs, $775 million on federal legal challenges to convictions, known as habeas corpus petitions, and $925 million on automatic appeals and initial legal challenges to death row cases.

Mitchell and other researchers said Proposition 62, which would retroactively apply life sentences to all death row defendants, would save the state most of that money. “It is sort of a fantasy that this system is ever going to be cost efficient,” said Mitchell, who has been named the university’s executive director of the Project for the Innocent.

But proponents of Proposition 66 argue the system can be reformed. The ballot measure would designate trial courts to take on initial challenges to convictions and limit successive appeals to within five years of a death sentence. It also would require lawyers who don’t take capital cases to represent death row inmates in an attempt to expand the pool of available lawyers.

In an analysis for its proponents, Michael Genest, a former budget director for Gov. Arnold Schwarzenegger, contends such changes would save taxpayers $30 million annually in the long run. Proposition 62, in comparison, would cost taxpayers more than $100 million due to this “lost opportunity” over a 10-year period.

But independent researchers with the legislative analyst’s office found plenty of factors could increase or reduce the chances of either ballot measure saving taxpayers money. Overall, they found Proposition 62 was likely to reduce net state and county costs by roughly $150 million within a few years.

The actual number could be partially offset if, without the death penalty, offenders are less inclined to plead guilty in exchange for a lesser sentence in some murder cases. That could lead to more cases going to trial and higher court costs, according the legislative office. Yet over time, the state could see lower prison expenses, even with a larger and older prison population, since the costs of housing and supervising death row inmates is much higher than paying for their medical bills, analysts said.

“If Prop. 62 goes into effect, they can be housed like life-without-parole inmates, some in single and some double cells,” legislative analyst Anita Lee said. “It would fall to [the California Department of Corrections and Rehabilitation] to do an evaluation of risks.”

Calculating the fiscal impact of Proposition 66 is much more complicated, the office found, as the measure leaves more open questions on implementation, such as how the state will staff up with additional private attorneys. Legislative analysts said the costs in the short term are likely to be higher, as the state would have to process hundreds of pending legal challenges within the new time limits. Just how much is unknown, but the actual number could be in the tens of millions of dollars annually for many years.

Also unknown, analysts said, is the proposition’s effect on the cost of each legal challenge. The limits on appeals and new deadlines could cut the expenses if they result in fewer, shorter legal filings that take less time and state resources to process. But they could increase costs if additional layers of review are required for habeas corpus petitions, the initial legal challenges in criminal cases, and if more lawyers are needed....

Mitchell said it was “pretty much delusional” to expect Proposition 66 to ever save the state money. For that to happen, she said, California would have to execute “one person every week, 52 people a year for the next 15 years, assuming they are all guilty.” But Kent Scheidegger, author of the proposition and legal director of the Criminal Justice Legal Foundation, argued the legislative office’s numbers were skewed, while security costs for dangerous inmates would likely have to remain just as high. “They don’t become any less dangerous if you change their sentence from death row to life without parole,” he said.

UPDATE: The article excerpted here has generate this series of notable posts (by a number of authors) at Crime & Consequences:

November 2, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

Monday, October 31, 2016

Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"

Sent_yearI am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology.  The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.  Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:

The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?"  Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue.  This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States.  Attendees will be eligible for up to 5 CLE credits, and no registration is necessary.  Please direct any questions to our Symposium Director, Erica Stern, who can be reached at ebstern@nlaw.northwestern.edu.

Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.

Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).

Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.

As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide.  Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year.  And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year.  The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.

For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS.  At that time, states throughout our nation were imposing, on average, five or six death sentences every week.  Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week.  I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.

October 31, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 27, 2016

Significant new report calls for closing all traditional youth prisons due to their inefficacy

This recent item from the Harvard Gazette, headlined "Youth justice study finds prison counterproductive: New report documents urgent need to replace youth prisons with rehabilitation-focused alternatives," spotlights a significant new report concerning the way juvenile offenders are punished. Here are excerpts:

A new report, published by Harvard Kennedy School’s Program in Criminal Justice Policy and Management (PCJ) and the National Institute of Justice (NIJ), documents ineffectiveness, endemic abuses, and high costs in youth prisons throughout the country.  The report systematically reviews recent research in developmental psychology and widespread reports of abuse to conclude that the youth prison model should be replaced with a continuum of community-based programs and, for the few youth who require secure confinement, smaller homelike facilities that prioritize age-appropriate rehabilitation.

The authors, who are leading youth justice researchers and former youth correctional administrators, find that the current youth prison model, which emphasizes confinement and control, often exacerbates youth trauma and inhibits positive growth while failing to address public safety.  Rather, the paper argues, programs work best when youths are in their home communities with rehabilitative programs or in smaller, homelike facilities that promote opportunities for healthy decision-making and development. Corrections agencies should provide a range of options depending on the individual’s needs, from smaller secure facilities to noncustodial programs.

Annual youth imprisonment costs are approximately $150,000 per individual, yet recidivism rates remain close to 70 percent. The report examines the experiences of several states that have pursued alternative models and finds community-based approaches can reduce recidivism, control costs, and promote public safety.

“Youth in trouble need guidance, education, and support, not incarceration in harmful and ineffective youth prisons,” said PCJ Senior Fellow Vincent Schiraldi, a co-author of the report. Previously, Schiraldi directed juvenile corrections in Washington, D.C., and served as commissioner of probation in New York City.  “We now know from research and on-the-ground experience that youth prisons are not designed to best promote youth rehabilitation.  This report offers concrete alternatives for policymakers across the country to maintain public safety, hold young people accountable, and turn their lives around.”

“Juvenile-justice systems must have the clear purpose of giving each youth the tools he or she needs to get on the right path to a successful adulthood and to reintegrate into the community,” said Patrick McCarthy, president and chief executive officer of the Annie E. Casey Foundation and a co-author of the report.  Like Schiraldi, McCarthy is a former director of youth corrections — in his case, in Delaware.  “By closing traditional youth prisons and leveraging increased political will to reform our country’s dependence on incarceration, states can use the savings to begin implementing a new, more effective approach to serving young people.”

This report, titled “The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model,” is available in full at this link.  And here is a key paragraph from its opening pages:

Whether the benefits and costs of youth prisons are weighed on a scale of public dollars, community safety, or young people’s futures, they are damaging the very people they are supposed to help and have been for generations. It is difficult to find an area of U.S. policy where the benefits and costs are more out of balance, where the evidence of failure is clearer, or where we know with more clarity what we should be doing differently.

October 27, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, October 20, 2016

BJS reports encouraging crime reductions based on its National Crime Victimization Survey

Some more interesting and important (and perhaps confusing) official crime data was reported earlier today via this notable new report from DOJ's Bureau of Justice Statistics excitingly titled "Criminal Victimization, 2015."  Though the title of the report is not so thrilling, the data contained therein is largely a cause for celebration.  This first page of overview/highlights explains why (with my emphasis added):

In 2015, U.S. residents age 12 or older experienced an estimated 5.0 million violent victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS). There was no statistically significant change in the rate of overall violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2014 (20.1 victimizations per 1,000 persons age 12 and older) to 2015 (18.6 per 1,000) (figure 1).  However, the rate of violent crime in 2015 was lower than in 2013 (23.2 per 1,000). From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1,000 persons age 12 or older.

The rates of violent and property crime largely followed similar trends over time. Households in the U.S. experienced an estimated 14.6 million property victimizations in 2015. The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 victimizations per 1,000 in 2015. A decline in theft accounted for most of the decrease in property crime.

„No statistically significant change occurred in the rate of violent crime from 2014 (20.1 victimizations per 1,000) to 2015 (18.6 per 1,000). „

No statistically significant change was detected in the percentage of violent crime reported to police from 2014 (46%) to 2015 (47%). „

No measureable change was detected in the percentage of violent crime victimizations in which victim services were received from 2014 (10.5%) to 2015 (9.1%).

The rate of property crime decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 per 1,000 in 2015.

In 2015, 0.98% of all persons age 12 or older (2.7 million persons) experienced at least one violent victimization. „

The prevalence rate of violent victimization declined from 1.11% of all persons age 12 or older in 2014 to 0.98% in 2015. „

In 2015, 7.60% of all households (10 million households) experienced one or more property victimizations. „

The prevalence rate of property victimization declined from 7.99% of all households in 2014 to 7.60% in 2015.

In other words, in 2015 according to this distinctive victim-based accounting of crime in the United States (which, critically, excludes any homicide measures), crime remained steady at modern record-low levels or even declined a bit across most types of crime.

October 20, 2016 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Monday, October 17, 2016

Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.

Some (of many) prior related posts on use of risk-assessment technologies:

October 17, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (0)

Tuesday, September 27, 2016

When someone focused on criminal justice empirics calls this the "Greatest. Graph. Ever."...

via this tweet, I feel compelled to reprint it:

CtYe_SeW8AABV59

Those who are familiar with Professor John Pfaff's work on Twitter or elsewhere will surely understand why he views this graph as reflecting so much greatness, and those not familiar with Professor John Pfaff's work should see this post as my recommendation that you take the time to figure out why he things this graph is so great.

Also, to add my two cents (and also throw in another useful discussion point), I think the graph would be even better is it also noted that December 1972 also marked the end of conscription for the military (i.e., "the draft") in the United States.

September 27, 2016 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (16)

Monday, September 26, 2016

FBI releases "official" 2015 US crime statistics showing increase in violent crime (especially murderes) and decreased property crime

As reported in this official FBI press release, "[a]fter two years of decline, the estimated number of violent crimes in the nation increased 3.9 percent in 2015 when compared with 2014 data, according to FBI figures released today. Property crimes dropped 2.6 percent, marking the 13th straight year the collective estimates for these offenses declined." This short FBI report on its latest data provides these additional particulars and helpful context:

Today, the FBI released its annual compilation of crimes reported to its Uniform Crime Reporting (UCR) Program by law enforcement agencies from around the nation. Crime in the United States, 2015 reveals a 3.9 percent increase in the estimated number of violent crimes and a 2.6 percent decrease in the estimated number of property crimes last year when compared to 2014 data.

According to the report, there were an estimated 1,197,704 violent crimes committed around the nation.  While that was an increase from 2014 figures, the 2015 violent crime total was 0.7 percent lower than the 2011 level and 16.5 percent below the 2006 level.

Among some of the other statistics contained in Crime in the United States, 2015:

  • The estimated number of murders in the nation was 15,696. [This is a roughly 11% increase from 2014.]

  • During the year, there were an estimated 90,185 rapes. (This figure currently reflects UCR’s legacy definition.....) [This is a roughly 6% increase from 2014.]

  • There were an estimated 327,374 robberies nationwide, which accounted for an estimated $390 million in losses (average dollar value of stolen property per reported robbery was $1,190).

  • Firearms were used in 71.5 percent of the nation’s murders, 40.8 percent of robberies, and 24.2 percent of aggravated assaults.

  • Property crimes resulted in losses estimated at $14.3 billion. The total value of reported stolen property (i.e., currency, jewelry, motor vehicles, electronics, firearms) was $12,420,364,454.

Like all detailed and intricate numbers about crime and punishment, these latest data can (and surely will) be spun in all sorts of ways.  For some early examples of the spin, here are some early commentaries about the data:

From Crime & Consequences here, "Complacency Mongers, Start Your Engines!"

From the Daily Beast here, "Violent Crime Is Up, but Trump Is Still Wrong"

From the Huffington Post here, "2015 Was One Of The Safest Years In The Past 2 Decades, According To FBI Crime Stats"

September 26, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data | Permalink | Comments (5)

Friday, September 23, 2016

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Saturday, September 17, 2016

Interesting accounting of "The Economic Burden of Incarceration in the U.S." as approaching 6% of GDP

Via the always helpful Marshall Project, I just came across this interesting study produced this summer by folks at Washington University in St. Louis.  The study is titled "The Economic Burden of Incarceration in the U.S."  Here is the abstract:

This study estimates the annual economic burden of incarceration in the United States. While prior research has estimated the cost of crime, no study has calculated the cost of incarceration.  The $80 billion spent annually on corrections is frequently cited as the cost of incarceration, but this figure considerably underestimates the true cost of incarceration by ignoring important social costs.  These include costs to incarcerated persons, families, children, and communities.

This study draws on a burgeoning area of scholarship to assign monetary values to twenty-two different costs, which yield an aggregate burden of one trillion dollars.  This approaches 6% of gross domestic product and dwarfs the amount spent on corrections. For every dollar in corrections costs, incarceration generates an additional ten dollars in social costs. More than half of the costs are borne by families, children, and community members who have committed no crime.  Even if one were to exclude the cost of jail, the aggregate burden of incarceration would still exceed $500 million annually [I think the authors mean $500 billion here based on the report that follows].

September 17, 2016 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, September 15, 2016

Interesting (and already dated) census of problem-solving courts from BJS

The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS": „„

September 15, 2016 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, September 05, 2016

A not-so-deadly summer: only one US execution from Memorial Day to Labor Day

I have been fascinated to see Texas courts, as detailed here by the Death Penalty Information Center, intervene to stay roughly a half-dozen scheduled executions in the state in the summer months.  Consequently, as detailed on this DPIC executions page, on this Labor Day as we mark the unofficial end to the summer, throughout the United States there was only one completed execution in the months of June, July and August.

A quick review of yearly execution lists leads me to think that it has been more than three decades since the US had a year in which so few murderers had their death sentences carried out in the summer months.  Thus, for those rooting for the death of the death penalty, I think this Labor Day there is a notable milestone to celebrate.

September 5, 2016 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (12)

Monday, August 29, 2016

As Donald Trump falsely claims inner-city crime "is reaching record levels," will those truly concerned about public safety address new spike in roadway deaths?

GOP Prez candidate Donald Trump took to twitter this morning to propagate false information about modern crime rates by saying in this tweet that "Inner-city crime is reaching record levels."   This Wall Street Journal article, headlined "Trump Says Crime Near Records, but Data Show Murders Well Below ’90s Highs," details why this statement is patently false:

As part of Donald Trump’s declared outreach to black voters, the Republican presidential nominee has painted a dire picture of American “inner cities” rife with crime, and stated he can make them safe. While crime has indeed ticked up recently, it remains near historic lows, especially as compared to, say, the 1980s and 1990s when the streets of Mr. Trump’s hometown of New York City were far more dangerous than today.

Homicides for the first six months of the year hit 2,801 in 61 major cities surveyed by the Major Cities Chiefs Association, up 15% from the year previous. Thirty-six of the 61 departments reported increases in homicides so far this year with Chicago showing the largest jump. As of Sunday, there have been 455 murders in Chicago, up 47% from the same period last year, according to the police. There were 472 murders in all of 2015, about half the all-time high set 25 years ago....

It is hard to remember how violent the country was back then. One example is New York City. The nation’s largest city annually had 2,000 homicides during the violence-prone early 1990s.  This year, the city will likely have about one-sixth of that total.  The nation’s homicide record setting year was 1991, with 24,703 homicides, according to the Federal Bureau of Investigation. The nation’s larger cities had numbers considerably higher than those recorded recently.

I highlight this data not only to provide, yet again, some needed context for concerns expressed about recent the uptick in homicide in a number of notable cities, but also to highlight that even the most violent year in modern American history --- 1991, with 24,703 homicides --- still experienced 10,000+ fewer death than accidents just last year on American roads. The latest data on US traffic deaths comes from this official press release which came out just today, titled "Traffic Fatalities Up Sharply in 2015," from the National Highway Traffic Safety Administration.  Here are some of these details:

The nation lost 35,092 people in traffic crashes in 2015, ending a 5-decade trend of declining fatalities with a 7.2% increase in deaths from 2014. The final data released today by the U.S. Department of Transportation’s National Highway Traffic Safety Administration showed traffic deaths rising across nearly every segment of the population. The last single-year increase of this magnitude was in 1966, when fatalities rose 8.1% from the previous year.

"Despite decades of safety improvements, far too many people are killed on our nation’s roads every year," said U.S. Transportation Secretary Anthony Foxx. "Solving this problem will take teamwork, so we're issuing a call to action and asking researchers, safety experts, data scientists, and the public to analyze the fatality data and help find ways to prevent these tragedies.”

Ten years ago, the number of traffic deaths was nearly 25% higher, with 42,708 fatalities reported nationwide in 2005. Since then, safety programs have helped lower the number of deaths by increasing seat belt use and reducing impaired driving. Vehicle improvements, including air bags and electronic stability control, have also contributed to reducing traffic fatalities.  After a decade-long downward trend, traffic deaths in 2015 increased by nearly one-third compared to 2014....

Pedestrian and pedalcyclist fatalities increased to a level not seen in 20 years. Motorcyclist deaths increased over 8%. NHTSA also noted human factors continued to contribute to the majority of crashes. Almost half of passenger vehicle occupants killed were not wearing seat belts. Research shows almost one in three fatalities involved drunk drivers or speeding. One in 10 fatalities involved distraction. "The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled," said NHTSA Administrator, Dr. Mark Rosekind. "While there have been enormous improvements in many of these areas, we need to find new solutions to end traffic fatalities."

August 29, 2016 in Campaign 2016 and sentencing issues, Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"

The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:

Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.

However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause.  This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.

These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.

August 29, 2016 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, August 24, 2016

Important "Real Clear" debate explores whether Texas "smart on crime" reforms have really been successful

A series of dueling posts over at the Real Clear Policy blog has been engaging with crime and punishment data from Texas to provide different views on whether so-called "smart on crime" reforms in the Lone Star State have proven truly effective at reducing both crime and imprisonment.  The discussion is too intricate to summarize here, so I encourage readers interested in this important debate to check out these post in order:

August 24, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Prisons and prisoners, State Sentencing Guidelines | Permalink | Comments (0)

Tuesday, August 23, 2016

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Sunday, August 21, 2016

Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data

U.S._incarceration_rates_1925_onwardsA couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):

The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....

In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all.  But around the turn of the millennium, the African American imprisonment rate began declining year after year....

At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.

A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.

These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans.  Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years.  I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).

That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States.  Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration.  A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":

August 21, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Detailing the inefficacy of sex offender residency restrictions in Milwaukee

MJSOFFENDER21G2The Milwaukee Journal Sentinel has this lengthy new article about the problems created by a residency restriction for sex offenders in place in Wisconsin's largest city. The article is headlined "Sex offender ordinance hasn’t worked as planned, putting public at greater risk," and here are excerpts:

In the two years since Milwaukee leaders enacted the residency ordinance as a way to push sex offenders out of the city, little has gone as planned. Rather than reducing the number of sex offenders, the ordinance has put more than 200 of them in the street and failed to keep new offenders from moving into the city, a Journal Sentinel analysis has found.

Experts say the increase in homeless sex offenders could put the public at greater risk. Studies show that without a permanent home, the lives of offenders become more unstable, increasing the chance they will re-offend. “Somebody might feel safer today because this one person doesn’t live on their block. But as a community, we are not safer, and this is not sustainable,” said Holly Patzer, executive director of Wisconsin Community Services, a nonprofit advocacy group focused on criminal justice and public safety.

The ordinance bans many sex offenders from living within 2,000 feet of areas where children are commonly found, such as schools, parks and day care centers. In Milwaukee, that means hundreds of sex offenders are limited to 117 possible housing units. And even those 117 units might not be available to rent or buy.

When the Milwaukee Common Council voted 8-6 to approve the ordinance in 2014, supporters said it would protect the public by pushing more offenders out of the city and into the suburbs, where a disproportionately low number of the county’s offenders lived. Supporters also argued the extremely restrictive rules would send a message to lawmakers in Madison: that Wisconsin needs a statewide sex offender residency law, rather than a patchwork of local ordinances.

But an analysis of state and Milwaukee sex offender registries shows those goals haven’t been achieved since the vote:

■ The number of homeless sex offenders in Milwaukee County has spiked, rising from about 15 in early 2014 to 230 this summer. Milwaukee police officials warned in 2014 that homelessness would increase, but a lead sponsor of the ordinance, Ald. Tony Zielinski, said he didn’t believe them.

■ Milwaukee County suburbs continue to house a disproportionately low share of the region’s sex offenders. In fact, their proportion — about 10% of county offenders — is virtually unchanged since the ordinance was passed.

■ Hundreds of offenders deemed “affected” by the ordinance — and thus, effectively banned from living in Milwaukee — continue to reside in the city, flouting the ordinance and accepting periodic fines.

■ The ordinance hasn’t prodded the Legislature to enact a statewide sex offender residency law, though there is renewed optimism it could happen soon.

Ald. Michael Murphy, who sympathized with supporters of the 2014 ordinance but voted against it, voiced concern at the time that the measure would increase homelessness among sex offenders and cause a greater threat to public safety. Murphy said he’s “still very fearful” about the number of homeless offenders. “My concern is that these offenders will re-offend, and everybody will be pointing fingers,” he said.

Although the data suggests the ordinance hasn’t worked as expected, some local leaders said they have no plans to make any changes. Zielinski said the ordinance has protected residents and stopped some sex offenders from moving into local communities. However, he could not provide specific examples to support his view.

Zielinski also accused the Wisconsin Department of Corrections of “fudging the numbers” of homeless Milwaukee offenders. Likewise, he didn’t provide evidence to prove the allegation, saying only that the department has been slow to provide him with accurate data in the past. “I’d have to check those numbers, but I know we have prevented a number of serious sex offenders from moving to Milwaukee,” Zielinski said. “The only thing I can tell you for sure is that Milwaukee did the right thing. Otherwise, we would have continued to be a dumping ground for state sex offenders.”...

[In 2014] four aldermen proposed their own ordinance: sex offenders who met certain requirements couldn’t live within 2,000 feet of schools, day care centers, parks, recreational trails, playgrounds or areas where children are known to congregate. Any offender in violation could be fined $1,000 to $2,500 per day. The aldermen argued the ordinance was the city’s best hope of forcing state officials, who had largely ignored their concerns, to pass a statewide residency law. “Although this may be seen as a punitive measure, I’m hoping that this sends a shot across the bow to the ones who really control the whole system and methodology of how we place sex offenders (in) the state of Wisconsin,” then-Ald. Joe Davis Sr. said.

But officials from the state Department of Corrections and Milwaukee Police Department warned that rather than moving to the suburbs, many sex offenders would stay in the city and become homeless. In turn, they said, it would be difficult to track offenders and recidivism rates could rise. Then-police Inspector Carianne Yerkes told members of a council committee that she worried the city’s ordinance wouldn’t prod state leaders into action. “I don’t know how long we can wait for that, and I’m afraid of what will happen in between,” said Yerkes, who has since been promoted to assistant chief.

Ultimately, the council passed the ordinance, Mayor Tom Barrett signed it into law in July 2014, and the rules went into effect in October 2014. Two years later, the city is seeing the practical effects of the ordinance:

■ The percentage of homeless sex offenders in Milwaukee County has jumped from less than 1% in early 2014 to 9% in mid-2016, according to an analysis of Department of Corrections data. Most homeless offenders are still on GPS monitoring and have to check in weekly with the state, but they have no permanent residence.

■ Sex offenders haven’t moved out to the suburbs en masse, doing nothing to dispel the “dumping ground” perception. About 10.5% of the county’s offenders live in the suburbs now, compared with 11% in early 2014.

■ The city continues to add hundreds of new sex offenders, despite the new rules. Department of Corrections data shows that at least 380 Milwaukee sex offenders have either moved into the city or been added to the registry since early 2014. The city has about 100 more offenders today than it did in 2014....

The ordinance hasn’t forced sex offenders out of the city for two primary reasons: most sex offenders are exempt from the rules, and others have willfully violated them. Milwaukee Police Department data shows about three-quarters of offenders living in the city are exempt because they were grandfathered in, live with family or aren’t required to follow the ordinance because of the nature of their crimes. The Common Council wrote those exemptions into the ordinance.

Among the 620 offenders in the city who aren’t exempt, about 460 have city addresses, putting them in violation of the ordinance. The remaining 160 are homeless or don’t list addresses. Milwaukee police have issued tickets to most of the 460 offenders, generally fining them about $1,000 to $1,300 per incident. Dozens of other offenders have received warnings or notices of violation.

“When MPD discovers an offender in violation, enforcement action is taken,” the police department said in an email. But those citations — most of which were issued between December and June — haven’t been enough to force hundreds of offenders to leave the city. Several offenders have been issued three citations, yet they continue to reside in Milwaukee.

August 21, 2016 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, August 14, 2016

Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration

Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:

This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol.  But many reformers also argue that marijuana reform is the first step in ending mass incarceration.  In many respects this appears to be wishful thinking.

There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests.  By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration.  Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense.  The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities.  We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.

In other respects, though, marijuana law enforcement imposes substantial costs on the justice system.  Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs.  Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.

While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link.  For a start, we should call attention to the parallels between marijuana and the overall drug war.  In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response.  This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.

The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....

There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety.  The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.

For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.

One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA).  I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle.  With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition.  If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.

In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform

August 14, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

"A reality check on crime: Rhetoric aside, new murder numbers are troubling"

The title of this post is the headline of this effective and important new piece from The Center for Public Integrity.  Here are excerpts:

There’s been a lot of rhetorical heat of late regarding crime in America — but not a lot of light.  Take Donald Trump.  He stirred the Republican convention with an apocalyptic vision of inner-city America as a Mad Max movie.  His first task, Trump said, “would be to liberate our citizens from the crime and terrorism and lawlessness that threatens their communities.” But wait. President Obama and others quickly countered that the imagery was nonsense — that violent crime today is dramatically lower than it was 30 years ago, 20 years ago, even 10 years ago.

There are multiple explanations for this confusion, and politics is only one of them. Reliance on the FBI’s Uniform Crime Reports is another; criminologists believe that many of the offenses tracked by the so-called UCR’s are terribly under-reported, and so are of limited utility.  And the reporting suffers from a serious time lag; the FBI’s full year report for 2015 won’t be released for another month or so.

Many criminologists believe that murder is the only truly reliable crime statistic because it is the only crime that’s virtually always reported.  Thus more recent reports on murder numbers are potentially illuminating, but have included a grab bag of cities, some of which showed murder increases while others showed decreases.

The Center for Public Integrity has gathered murder statistics for the first half of 2016 and compared them with totals for the first half of 2015, for America’s 10 most populous cities.... [which] contain some disturbing news. The 10-city total for January-June 2016 is up 20 percent over the previous year, and fully nine of the 10 municipalities showed increases, with big-percentage spikes in Phoenix, San Antonio, San Jose and especially Chicago. This seems to extend a jump in murders that showed killings up in early 2015 from 2014. The exception to the trend is the nation’s biggest city, New York, which so far in 2016 has sustained a drop in murders, continuing a trend there that stretches back to the early 1990s.

Is there an explanation for the broader uptick in America’s biggest cities? That’s harder to say. There’s talk of a “Ferguson effect,” in which cops are pulling back from aggressive enforcement — but little hard evidence. Some blame a rise in gang activity, while others point to a relentless proliferation of guns in the hands of young people. A less-explored, if admittedly imperfect explanation: more young people. Criminologists have traditionally argued that ages 15-24 are the crime-prone years, and the number of people in that age cohort has fluctuated over recent history. There were 42 million of them in 1980, when violent crime was rising, but the total was down to 38 million by 1990; crime started to ebb just a few years later, aided by the end of the crack epidemic. However, the number of 15-24-year-olds jumped to 44 million by 2012, and has stayed relatively close to that number since.

I consider this piece of reporting effective because it highlights that homicide numbers are generally the most reliable of crime statistics, and I consider it important because it highlights that homicide number tell a "disturbing" tale in 9 of the 10 largest US cities. (I also respect the piece's sensible statement that it is hard to say right now what accounts for the recent uptick in murders in America’s biggest cities.)

I have been especially troubled lately by demonstraby false assertions that crime is, right now, "actually at historic lows" (which is what former AG Holder claims in today's New York Times), when in fact it seems we hit modern recent historic homicide/crime lows in 2014.   Those eager to contest Trump's expressed concern for law and order are on solid ground when saying that homicide/crime is now still much, much lower than when Barack H. Obama (or George W. Bush or William J. Clinton) first took office.  But the hard cold facts, which ought no be avoided or fudged by any serious academic or policy advocate, indicate that homicide/crime started to increase in calendar year 2015 and may been in the midst of increasing further in 2016.

August 14, 2016 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (8)

Thursday, August 11, 2016

"Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems"

The title of this post is the title of this intriguing empirical paper recently posted on SSRN authored by Yotam Shem-Tov. Here is the abstract (with one line emphasized by me):

Individuals facing criminal charges in the U.S. have a constitutional right to attorney representation.  If they cannot afford one, the court is required to appoint and finance a legal counsel. Indigent defense systems are usually composed of private court appointed attorneys and/or a public defenders’ organization.  I investigate the causal effect of being assigned a public defender as oppose to a private court appointed attorney on defendants’ trial outcomes using a new “twins design” identification strategy.

I argue and show empirically that in co-defendant cases, the decision of who is assigned to the public defender organization can be treated as close to a randomized experiment, which can be exploited to measure the effectiveness of court appointed private attorneys relative to public defenders.  Using data from all multiple defendant cases in federal courts between 2001-2014, I find that defendants assigned a public defender in co-defendant cases had slightly worse outcomes: a higher probability of being convicted, an average of three months longer expected prison sentence, longer court proceedings and a higher probability of reaching a plea bargain.  However, there is large heterogeneity in public defender effectiveness across federal districts ranging from a 13.8 month longer prison term to a 16.1 month shorter prison term.

I lack the empirical skills to question or assess the new “twins design” identification strategy used in this paper, and the full paper is full of challenging empirical jargon like "The main regression specications is Yit = B . PDi + aj(I) + X'it􀀀 + Eit".  That said, my first reaction is to be quite suspicious of these findings/conclusions due to (1) my own experiences and high regard for the work of nearly all federal public defenders, and (2) my own normative instinct that, at least for a significant number of federal defendants, experiencing "longer court proceedings and a higher probability of reaching a plea bargain" is not at all a marker of a "worse outcome."

UPDATE months later: As noted in this post, the author revised this paper based on feedback and a new data analysis and reached a significantly different finding: "I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes."

August 11, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Monday, August 08, 2016

Great coverage and analysis of Prez Obama's recent clemency work at Pardon Power

Regular readers and/or hard-core clemency fans know that P.S. Ruckman over at the Pardon Power blog is a must-read whenever President Obama's gets his clemency pen out. Here are just some of many recent posts discussing the historic number of commutations that Prez Obama issued last week (basics here), and responding to some notable recent criticisms of what the Prez is up to:

August 8, 2016 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, August 03, 2016

Does the weather and MLB baseball impact federal sentencing outcomes more than racial factors?

The seemingly somewhat kooky question in the title of this post is prompted by this seemingly somewhat kooky empirical paper now available via SSRN and authored by a group of data researchers and titled "Events Unrelated to Crime Predict Criminal Sentence Length." Here is the paper's abstract (with a key sentence emphasized to explain my post title query):

In United States District Courts for federal criminal cases, prison sentence length guidelines are established by the severity of the crime and the criminal history of the defendant.  In this paper, we investigate the sentence length determined by the trial judge, relative to this sentencing guideline.  Our goal is to create a prediction model of sentencing length and include events unrelated to crime, namely weather and sports outcomes, to determine if these unrelated events are predictive of sentencing decisions and evaluate the importance weights of these unrelated events in explaining rulings.

We find that while several appropriate features predict sentence length, such as details of the crime committed, other features seemingly unrelated, including daily temperature, baseball game scores, and location of trial, are predictive as well.  Unrelated events were, surprisingly, more predictive than race, which did not predict sentencing length relative to the guidelines.  This is consistent with recent research on racial disparities in sentencing that highlights the role of prosecutors in making charges that influence the maximum and minimum recommended sentence.  Finally, we attribute the predictive importance of date to the 2005 U.S. Supreme Court case, United States v. Booker, after which sentence length more frequently fell near the guideline minimum and the range of minimum and maximum sentences became more extreme.

Based on a quick scan of the paper, I came to the conclusion that one would need to have a pretty sophisticated understanding of both federal sentencing patterns and empirical methods to assess the soundness of the analysis here.  Still, the paper's penultimate paragraph reinforces that this analysis led to some notable conclusions (with my emphasis again added):

A justice system reasonably aspires to be consistent in the application of law across cases and to account for the particulars of a case. Our goal was to create a prediction model of criminal sentence lengths that accounts for non-judicial factors such as weather and sports events among the feature set. The feature weights offer a natural metric to evaluate the importance of these features unrelated to crime relative to case-specific factors. Using a Random Forest, we found several expected crime related features appearing within the top 10% most important features. However, we also found defendant characteristics (unrelated to the crime), sport game outcomes, weather, and location features all predictive of sentence length as well, and these features were, surprisingly, more predictive than the defendant’s race. Further investigating this predictive ability would be of interest to those studying the criminal justice system.

August 3, 2016 in Booker in district courts, Data on sentencing, Detailed sentencing data, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Monday, August 01, 2016

Will there be fewer than 20 executions in 2016?

As I changed the month on my calendars, I thought to take a looks at the Death Penalty Information Center's list of recent executions and list of scheduled executions.  These lists confirmed my sense that, after a notable number of executions a notable number of states in the first part of 2016 (a total of 14 executions in five different states through early May), there is now almost a de facto moratorium on executions throughout nearly all of the United States.

Specifically, there has been only a single execution in summer 2016 (a few weeks ago in Georgia), and Texas appears to be the only state right now with any serious execution dates scheduled for the rest of 2016.  And if only a couple of the remaining 2016 scheduled Texas executions get delayed, there will be the fewest executions in the US this year in a quarter-century.

With highly symbolic votes on the death penalty's future in California and Nebraska in November, I have already begun thinking about 2016 as a possible "tipping point" year for capital punishment.  But this year's execution realities highlights that, for most functional purposes, the death penalty is continuing to die a slow death throughout the United States.

August 1, 2016 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (2)

Sunday, July 31, 2016

Reviewing disconcerting realities when kids are put on sex offender registries

Eric Berkowitz has this notable New York Times commentary, headlined "Punishment That Doesn’t Fit the Crime," about juveniles and sex offender registries. Here are excerpts:

When Matthew Grottalio was 10 years old, he and his older brother initiated a touching “game” with their 8-year-old sister. “None of us knew what we were doing,” he said, and he soon forgot about the episode.  But later that year, 1998, his sister’s teacher found out and notified the authorities.  Just weeks after Matthew’s 11th birthday, police officers handcuffed him outside his fifth-grade classroom.

Matthew and his parents agreed to a guilty plea in exchange for two years of probation, which he spent in a foster home. (His brother also pleaded guilty.)  When he returned to his family, they were stunned to learn that he was listed on the Texas sex offender registry website, and would be for 10 years.  He was just 13 years old.  Neighbors threw a Molotov cocktail at his house and shot and killed his family’s dog.  Local newspapers listed him by name along with adult sex offender “monsters” in the area.

He soon “hated life, hated everybody.”  Their sons’ ordeals shattered their parents’ marriage of two decades. Matthew dropped out of high school, ran away, was homeless for two years, sank into drugs and served time for burglary and parole violations.  His decade on the registry had ended by 2011, but internet searches continued to show him on the list — and still do.  Even worse, his parole included restrictions suitable to a serial child rapist.  He was barred from any unsupervised and unapproved contacts with people under 17, and from any contact with his sister, who was by then an adult. (She says she never considered him a threat.)  He also was barred from contact with the children of the woman he married in 2013. Even contact with the baby the couple had together was in limbo until he passed a sex offender evaluation....

Mr. Grottalio’s story is not unusual. In about 40 states, juveniles are listed on sex offender registries, often for their entire lives.  In about 19 states, there is no minimum registration age.  Prepubescent children are listed along with violent adult sex criminals.  While precise data is unavailable, it appears that as many as 24,000 of the nation’s more than 800,000 registered sex offenders are juveniles, and about 16 percent of that population are younger than 12 years old.  More than one-third are 12 to 14....

In her career as a criminal defense lawyer for juveniles and a researcher on juvenile sex offenders, Nicole Pittman, now a vice president at Impact Justice, defended or reviewed about 2,000 juvenile sex cases.  Most involved what she called “normative” sexual behavior and “experimentation.”  Nevertheless, on many sex offender websites, there are juveniles’ photos, names and addresses, and even maps to their homes....

2006, about 32 states had sex offender laws registering juveniles.  That year, the federal Adam Walsh Child Protection and Safety Act mandated, for the first time, that certain youths 14 and over be registered in the state where the violation occurred. (Once that happens, the person also goes on the national registry.) The law also said that offenses such as indecent exposure and public urination had to be included. At least six states now require juveniles to be on the register for life.  Given that state and federal laws have grown into an often conflicting tangle of requirements and penalties, there can be no end to some kids’ ordeals....

The expansion of sex offender laws to include juveniles was based on the assumption that kids who sexually transgress cannot be reformed.  However, research has shown this assumption to be false. Only 1 percent to 7 percent of children who commit sexual offenses will do it again — much lower than the 13 percent recidivism rates for adult sexual offenders.

The policy seems to succeed only in making life difficult for offenders, subjecting them to harassment and isolation. Of the more than 500 youth sex offenders whose cases Ms. Pittman examined, about 100 had attempted suicide.... Knowing this, prosecutors like Vicki Seidl, the senior lawyer in the juvenile division of the Kent County district attorney’s office in Michigan, now push for pleas that keep youths off registries.  Other prosecutors are following suit.

But that alone will not solve the problem.  Juveniles, particularly ones under 14, need to be off the registries entirely. In 2011, the Department of Justice relaxed the requirement for registering juveniles, but legislators still fear that they’ll be accused of being “soft” on sex crimes.

July 31, 2016 in Collateral consequences, Data on sentencing, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, July 28, 2016

US Sentencing Commission releases big new report urging reform of career offender enhancements

As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:

The United States Sentencing Commission (“Commission”) issued a Report to the Congress: Career Offender Sentencing Enhancements, analyzing career offenders’ prior criminal history, incarceration terms and recidivism rates.

Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”

Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions.  Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months).  As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population.  Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government.  The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future.  In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.

In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment.  These offenders were also more likely to receive a sentence below the federal sentencing guideline range.

Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016.  Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”

July 28, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"The Downstream Consequences of Misdemeanor Pretrial Detention"

The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Paul Heaton, Sandra Mayson and Megan Stevenson. Here is the abstract:

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited.  This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime.

We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect.  These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics.  Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention.  A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention.  These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.

I fear that most criminal justice researchers and reform advocates (myself included) pay much less attention to misdemeanor crimes and punishments than to so many other parts of the justice system. This article (and a few others noted below in prior posts) provides a reminder that we should not overlook this important element of modern justice systems.

Some prior related research and advocacy on misdemeanors:

July 28, 2016 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)