Tuesday, September 16, 2014
After a few modest yearly declines, state prison population ticks up in 2013 according to new BJS data
As reported in this New York Times piece, headlined "Number of Prisoners in U.S. Grew Slightly in 2013, Report Finds," a small streak of yearly declines in state prison populations came to a halt in 2013. Here are the details:
Breaking three consecutive years of decline, the number of people in state and federal prisons climbed slightly in 2013, according to a report released Tuesday, a sign that deeper changes in sentencing practices will be necessary if the country’s enormous prison population is to be significantly reduced.
The report by the Justice Department put the prison population last year at 1,574,700, an increase of 4,300 over the previous year, yet below its high of 1,615,487 in 2009. In what criminologists called an encouraging sign, the number of federal prisoners showed a modest drop for the first time in years.
But the federal decline was more than offset by a jump in the number of inmates at state prisons. The report, some experts said, suggested that policy changes adopted by many states, such as giving second chances to probationers and helping nonviolent drug offenders avoid prison, were limited in their reach....
Across the country, drug courts sending addicts to treatment programs rather than jail have proved valuable but are directed mainly at offenders who would not have served much prison time anyway, said Marc Mauer, executive director of the Sentencing Project, a private group in Washington. At the same time, Mr. Mauer said, more life sentences and other multidecade terms have been imposed than ever, offsetting modest gains in the treatment of low-level offenders.
“Just to halt the year-after-year increase in prisoners since the 1970s was an achievement,” said Richard Rosenfeld, a criminologist at the University of Missouri–St. Louis, and that shift came about because of changes in state policies and a drop in crime.
But experts say it will take more far-reaching and politically contentious measures to markedly reduce the country’s rate of incarceration, which is far above that in European nations and has imposed especially great burdens on African-Americans. Mandatory sentences and so-called truth-in-sentencing laws that limit parole have not only put more convicts in costly prison cells for longer stretches but have also reduced the discretion of officials to release them on parole....
The size of the federal prison population is closely tied to federal drug laws and penalties. A majority of the 215,866 offenders in federal prisons in 2013 were there on drug charges, often serving lengthy sentences under get-tough policies that have increasingly come under question. Recent changes in federal drug enforcement — a 2010 law to reduce disparities in sentences for crimes involving crack as opposed to powdered cocaine, and a directive from Attorney General Eric H. Holder Jr. calling for less stringent charges against nonviolent offenders — are too new to have had a large impact in 2013.
The full BJS report, titled excitingly "Prisoners in 2013," is available at this link. I need to grind over the data in the full report before commenting on what this notable new report tells us about the state and direction of modern mass incarceration.
Terrific collection of materials on-line as USSC's "Annual National Seminar Goes Paperless"
Though not nearly as historic or controversial as Bob Dylan going electric, I was still excited and intrigued to see a new item on the US Sentencing Commission's website announcing that this week's upcoming USSC Annual National Seminar "is going paperless." What this means, as the notice explains, is that all of the USSC's Seminar materials are now available online at this link.
I recommend that everyone interested in federal sentencing data and developments take the time to click through and scroll down through the USSC's Seminar agenda. One can find lots of interesting articles, data runs and presentation materials that provide information and insights about modern federal sentencing that would be hard to find anywhere else. Kudos to the Commission for going paperless and for enabling folks like me who cannot make it to this year's event to still access a lot of the materials that are to be presented.
Tuesday, September 02, 2014
Noting the halting of executions in Mississippi ... and nationwide in nearly all states
This local AP article, headlined "Mississippi may be on death row execution hiatus," reports on modern capital punishment practical realities that exist in the majority of US jurisdictions these days. Here are the details from the Magnolia State:
Mississippi hasn't had an execution in two years, and state Attorney General Jim Hood says he can't predict when another might occur. No Mississippi death row appeals are presently pending before the U.S. Supreme Court, he said.
"We usually make predictions on timing based on cases pending before that court," Hood told The Associated Press this past week. "There is no way to really know an exact timeline on any of these type cases," he said. "They are all making their way through the system at various paces. We have some nearing the end of their normal track of appeals, but there is just no way to know when we might have a case that would warrant the filing of a motion to set an execution date."...
The most recent execution in Mississippi was June 20, 2012. Gary Carl Simmons Jr., a former grocery store butcher, was executed for dismembering a man during a 1996 attack in which he also raped the man's female friend. Before that, Jan Michael Brawner was executed on June 12, 2012, for fatally shooting his 3-year-old daughter, his ex-wife and her parents in a crime in which authorities say he also stole his slain mother-in-law's wedding ring and used it to propose to his girlfriend. The Mississippi Supreme Court blocked executions in 2013 and 2014.
It appears Mississippi is headed for another execution hiatus, but one that may not last as long as in the 1990s. The U.S. Supreme Court ruled in 1990 in a Mississippi death penalty case that described a capital crime to juries as "especially heinous, atrocious or cruel" without further definition was unconstitutionally vague. The ruling resulted in nearly two dozen Mississippi death sentences being overturned. For the rest of the 1990s, no executions took place in the state. The July 2002 execution of Tracy Allen Hansen was Mississippi's first since 1989. Hansen was executed for gunning down a policeman in 1987.
From 1955 to 1964, Mississippi executed 31 men. Another four were put to death in the 1980s. Since 2002, including Hansen, 17 executions have taken place. Mississippi had 60 inmates on death row as of Friday....
[In the modern capital era,] 1,385 inmates have been executed in 34 states through August. More than a third of those were in Texas alone, and in recent years, only a handful of other states have carried out executions on a somewhat regular basis, among them Arizona, Florida, Georgia, Missouri, Ohio and Oklahoma. The number of death penalty prosecutions has been dropping, in large part because of the availability of lifetime prison sentences without parole.
Mississippi's longest serving inmates still have appeals moving through state and federal courts.... Richard Gerald Jordan, 68, has been on death row the longest -- 37 years calculated from his date of conviction, according to Department of Corrections' records. Jordan was convicted of capital murder committed in the course of a kidnapping. James Billiot, 53, has been on death row 31 years. He was convicted of using sledgehammer to kill his mother, stepfather and 14-year-old stepsister. Roger Thorson, 56, has been on death row 25 years. He was sentenced to die for killing a former girlfriend on the Mississippi Gulf Coast.
Intriguingly, at this page at the Death Penalty Information Center highlights, Mississippi had a pretty active execution chamber from 2010 to 2012. Indeed, sixteen different states had at least one execution during this period and eight states averaged two or more executions during these years. In notable contrast, over the last two years, only nine states have completed executions and only five have averaged two or more executions during this period. (And two of these "still active" execution states, Ohio and Oklahoma, have had their plans to conduct more executions halted due to ugly execution events earlier this year.)
Prior to the recent execution drug problems, I had come to think that the "death penalty is dying" narrative was losing steam, especially as the United States consistently averaged about four executions each month during the first term of the Obama era. But last year saw less than 40 executions nationwide, and there is a real possibility that this year will have fewest total executions in two decades.
Tuesday, August 19, 2014
"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"
The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III. Here is the abstract:
This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.
There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.
Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’” For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.
Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.
Sunday, August 17, 2014
"Adverse childhood events: Incarceration of household members and health-related quality of life in adulthood"
Via The Crime Report, I came across this new report in the August 2014 issue of the Journal of Health Care for the Poor and Underserved. The piece has the title that is the title of this post, and here is the abstract:
Background. Incarceration of a household member has been associated with adverse outcomes for child well-being.
Methods. We assessed the association between childhood exposure to the incarceration of a household member and adult health-related quality of life (HRQOL) in the 2009/2010 Behavioral Risk Factor Surveillance System controlling for age, race/ethnicity, education, and additional adverse childhood experiences.
Results. Adults who lived in childhood with an incarcerated household member had higher risk of poor HRQOL compared with adults who had not (adjusted relative risk [ARR] 1.18; 95% CI 1.07, 1.31). Among Black adults the association was strongest with the physical health component of HRQOL (ARR 1.58 [95% CI 1.18, 2.12]); among White adults, the association was strongest with the mental health component of HRQOL (ARR 1.29, [95% CI 1.07–1.54]).
Conclusions. Living with an incarcerated household member during childhood is associated with higher risk of poor HRQOL during adulthood, suggesting that the collateral damages of incarceration for children are long-term.
Also appearing in the same journal issue are these two additional studies exploring the impact of prisoner release and health-care:
Monday, August 04, 2014
"Women in the Federal Offender Population"
The title of this post is the title of this intriguing new document from the US Sentencing Commission as part of its documents as part of its terrific series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.") Here are some of the data highlights from this new publication that I found especially interesting:
While women continue to make up a small percentage of federal offenders, the proportion of federal offenders who were women rose slightly from 12.1% in fiscal year 2009 to 13.3% in fiscal year 2013....
In fiscal year 2013, more than two-thirds of female offenders were sentenced for drug trafficking (33.7%), fraud (23.9%), or immigration (14.3%) offenses....
The largest racial group of female drug trafficking offenders was Hispanic (43.6%) followed by White (35.6%), Black (16.3%), and Other Races (4.5%).
The largest racial group of female fraud offenders was White (42.5%) followed by Black (35.8%), Hispanic (15.5%), and Other Races (6.2%).
Most female immigration offenders were Hispanic (86.4%), followed by White (5.4%), Other Races (4.9%), and Black (3.3%).
The average age of these offenders at sentencing was 38 years.
Most female offenders (70.8%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).
Weapons were involved less frequently (4.1%) in cases involving females than in cases involving males (8.6%).
Three-quarters (75.6%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2013 (93.5%).
Female drug trafficking offenders were often sentenced to imprisonment (90.3%), although at a lower rate than male drug trafficking offenders in fiscal year 2013 (97.3%).
Female fraud offenders were sentenced to imprisonment at a lower rate (61.1%) than were male fraud offenders (74.1%).
Female offenders were convicted of a statute carrying a mandatory minimum penalty at a lower rate (24.0%) than were male offenders (26.9%).
The average sentence length for females convicted of a statute carrying a mandatory minimum penalty was 60 months.
The average sentence length for females not convicted of a statute carrying a mandatory minimum penalty was 17 months.
For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (49.7% in fiscal year 2009 and 40.2% in fiscal year 2013), compared to 55.3% and 49.8% for male offenders.
The rate of government sponsored below range sentences increased from 28.0% in fiscal year 2009 to 32.9% in fiscal year 2013, compared to 26.3% and 28.7% for male offenders.
The percentage of female offenders that received a non-government sponsored below range sentence increased over the last five years (from 21.1% of cases in fiscal year 2009 to 25.8% in fiscal year 2013), compared to 16.3% and 19.2% for male offender
The average guideline minimum for female offenders has increased over the last five years from 36 months in fiscal year 2009 to 41 months in fiscal year 2013.
The average sentence imposed slightly increased over the last five years, from 25 months in fiscal year 2009 to 27 months in fiscal year 2013.
Like all good and detailed and sophisticated sentencing data, there are many ways to "spin" all these numbers. But midst all the numbers, the most glaring of the data points seem to be a not-insignificant increase over the last five year of the average guideline minimum and the average imposed sentence for female offenders in the federal system even despite a significant reduction in crack sentences during that period.
Thursday, July 31, 2014
More potent reviews of criminal justice data via the Washington Post's Wonkblog
In this post last week, titled " "There’s little evidence that fewer prisoners means more crime," I made much of some recent postings on the Washington Post Wonkblog and suggested that sentencing fans ought to make a habit of checking out Wonkblog regularly. This set of new posts at that blog reinforce my views and recommendation:
Though all these posts merit a close read, I especially recommend the first one linked above, as it meticulously details all significant problems with all the "science" claims made by the federal government to justify marijuana prohibition. Here is how that piece it gets started:
The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.
That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.
The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.
"Attorney General Eric Holder to Oppose Data-Driven Sentencing"
The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice. Here are highlights from this article (with more to follow in coming posts):
Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations. Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.
Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again. Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.
Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities. “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.
Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money. But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.
Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”
Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders. Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law. And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.
But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work. “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement. For example, prior convictions and the age of first arrest are among the most powerful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.
And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue. Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown. “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.
Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line. Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....
Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing. “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.
Thursday, July 24, 2014
"There’s little evidence that fewer prisoners means more crime"
Of all of the notions that have motivated the decades-long rise of incarceration in the United States, this is probably the most basic: When we put people behind bars, they can't commit crime. The implied corollary: If we let them out, they will.
By this thinking, our streets are safer the more people we lock up and the longer we keep them there. This logic suggests that there would be serious public-safety costs to reducing prison populations, a policy in the news again after the U.S. Sentencing Commission unanimously voted last Friday to retroactively extend new, lighter drug sentencing guidelines to about 46,000 offenders currently serving for federal drug crimes. As the National Association of Assistant U.S. Attorneys warned, opposing the move, "tough sentencing laws . . . led to safer communities, which are now threatened."
Crime trends in a few states that have significantly reduced their prison populations, though, contradict this fear. [A] recent decline in state prison populations in New York and New Jersey, [as noted by] a new report by the Sentencing Project, [has not resulted in a crime surge]....
It's important to note that crime has been falling all over the country over this same time, for reasons that are not entirely understood (and, no, not entirely explained by the rise of incarceration). But the Sentencing Project points out that declining violent crime rates in New York and New Jersey have actually outpaced the national trend, even as these states have reduced their prison populations through changing law enforcement and sentencing policies.
We certainly can't take these three charts and conclude that reducing prison populations reduces crime. But these trends do make it harder to argue the opposite — particularly in the most heavily incarcerated country in the world.
I am not sure which of the many data-driven publications by The Sentencing Project served as the basis for this latest Workblog posting. But I am sure, as evidenced by these posts from the last few weeks, that sentencing fans ought to make a habit of checking out Wonkblog regularly:
UPDATE: I now realize that the recent Sentencing Project publication reference in this post is the basis for the Wonkblog discussion.
Wednesday, July 23, 2014
"Fewer Prisoners, Less Crime: A Tale of Three States"
Although the pace of criminal justice reform has accelerated at both the federal and state levels in the past decade, current initiatives have had only a modest effect on the size of the prison population. But over this period, three states — New York, New Jersey, and California — have achieved prison population reductions in the range of 25%. They have also seen their crime rates generally decline at a faster pace than the national average.
• New York and New Jersey led the nation by reducing their prison populations by 26% between 1999 and 2012, while the nationwide state prison population increased by 10%.
• California downsized its prison population by 23% between 2006 and 2012. During this period, the nationwide state prison population decreased by just 1%.
• During their periods of decarceration, violent crime rates fell at a greater rate in these three states than they did nationwide. Between 1999-2012, New York and New Jersey’s violent crime rate fell by 31% and 30%, respectively, while the national rate decreased by 26%. Between 2006-2012, California’s violent crime rate drop of 21% exceeded the national decline of 19%.
• Property crime rates also decreased in New York and New Jersey more than they did nationwide, while California’s reduction was slightly lower than the national average. Between 1999-2012, New York’s property crime rate fell by 29% and New Jersey’s by 31%, compared to the national decline of 24%. Between 2006-2012, California’s property crime drop of 13% was slightly lower than the national reduction of 15%.
These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. The experiences of these states reinforce that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations. They also demonstrate that it is possible to substantially reduce prison populations without harming public safety....
At least in three states we now know that the prison population can be reduced by about 25% with little or no adverse effect on public safety. Individual circumstances vary by state, but policymakers should explore the reforms in New York, New Jersey, and California as a guide for other states.
There is also no reason why a reduction of 25% should be considered the maximum that might be achieved. Even if every state and the federal government were able to produce such reductions, that would still leave the United States with an incarceration rate of more than 500 per 100,000 population — a level 3-6 times that of most industrialized nations.
In recent years a broader range of proposals has emerged for how to reduce the prison population and by various scales of decarceration. In a recent right/ left commentary Newt Gingrich and Van Jones describe how they will “be working together to explore ways to reduce the prison population substantially in the next decade.” The experiences of New York, New Jersey, and California demonstrate that it is possible to achieve substantial reductions in mass incarceration without compromising public safety.
Monday, July 21, 2014
"Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons"
The title of this post is the title of this important and timely new paper authored by two terrific criminologists, Professors Joan Petersilia and Francis T. Cullen, and now available via SSRN. Here is the abstract:
A confluence of factors — a perfect storm — interfered with the intractable rise of imprisonment and contributed to the emergence of a new sensibility defining continued mass imprisonment as non-sustainable. In this context, reducing America’s prisons has materialized as a viable possibility. For progressives who have long called for restraint in the use of incarceration, the challenge is whether the promise of downsizing can be met.
The failure of past reforms aimed at decarceration stand as a sobering reminder that good intentions do not easily translate into good results. Further, a number of other reasons exist for why meaningful downsizing might well fail (e.g., the enormous scale of imprisonment that must be confronted, limited mechanisms available to release inmates, lack of quality alternative programs). Still, reasons also exist for optimism, the most important of which is the waning legitimacy of the paradigm of mass incarceration, which has produced efforts to lower inmate populations and close institutions in various states.
The issue of downsizing will also remain at the forefront of correctional discourse because of the court-ordered reduction in imprisonment in California. This experiment is ongoing, but is revealing the difficulty of downsizing; the initiative appears to be producing mixed results (e.g., reductions in the state’s prison population but increased in local jail populations). In the end, successful downsizing must be “liberal but not stupid.” Thus, reform efforts must be guided not only by progressive values but also by a clear reliance on scientific knowledge about corrections and on a willingness to address the pragmatic issues that can thwart good intentions. Ultimately, a “criminology of downsizing” must be developed to foster effective policy interventions.
Tuesday, July 01, 2014
Detailing a notable capital punishment surge in the Sunshine State
This lengthy recent Gainesville Sun article, headlined "Gov. Scott stands strong on death penalty," provides a detailed report on the recent state of capital punishment in the state of Florida. Here are excerpts:
Gov. Rick Scott in 2010 ran on a platform of creating more jobs and reviving Florida's economy. How well he accomplished that will be at the center of the debate of his re-election this fall. But Scott has already cemented one legacy that won't be debated and he did not even contemplate in his initial bid for public office four years.
Scott has presided over 18 executions, including 13 in the last two years, the most executions carried out by any Florida governor in a single term since the death penalty was reinstated in the 1970s....
Shortly before the June 18 execution of John Henry, a Pasco County man who stabbed his wife and stepson to death in 1985, Scott described the death penalty as “a solemn duty of the governor.”
“It's not something I thought about when I was going to run,” Scott said. “But I uphold the laws of the land. When I think about the executions I think about the families, the stories of what happened to these individuals. I think about them.”...
Florida continues to outpace most other states in carrying out the death penalty and may even reach parity — if only briefly — with Texas, which has long been the national death penalty leader. On July 10, Florida is scheduled to execute Eddie Wayne Davis for the kidnapping, rape and murder of an 11-year-old girl in Polk County. It would be the seventh execution carried out this year and put Florida in the unusual position of having the same number of executions as Texas.
Texas is likely to exceed Florida by the year's end, with another five executions already scheduled. And last year, Texas executed 16 prisoners compared to Florida's seven. But Florida's relative parity with Texas signals that the state continues to embrace the death penalty despite a national trend away from its use. Florida and Texas are among only six states this year that have executed prisoners.
Other signs that Florida is aggressively using the death penalty include:
• Florida annually condemns more prisoners to Death Row than nearly every other state. In 2013, Florida sentenced 14 prisoners to death, exceeding Texas' nine death sentences. Only California, with 24 death sentences, had more, although California has not had an execution since 2006.
• In 2012, Florida sent 20 prisoners to Death Row, nearly reaching the combined total of 22 death sentences in Texas and California, two larger states.
• Florida has the second largest Death Row in the country, with 396 prisoners....
But don't expect capital punishment to become an issue in this year's governor's race. Scott's likely opponent, former Gov. Charlie Crist's tough-on-crime stance once earned him the nickname “Chain Gang Charlie.” The state's apparent tolerance to capital punishment is reflected in few protests and little media coverage surrounding executions.
In addition, Scott's actions are line with state lawmakers who overwhelmingly support the death penalty. “Gov. Scott has taken his responsibility to sign death warrants very seriously and I commend him for that,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach.
Gaetz said Florida “is a death penalty state for a good reason," pointing to a 42-year low in the crime rate as well as one-third reduction in violent crimes in the last six years. “Something we're doing must be working and I don't think Floridians are too up for wholesale changes to a criminal justice system that has dramatically reduced the crime rate,” Gaetz said.
Gaetz and other lawmakers bolstered Florida's support for the death penalty last year when they passed the Timely Justice Act. Among other provisions it requires the Supreme Court to notify the governor when Death Row prisoners have exhausted their initial state and federal appeals.
Tuesday, June 10, 2014
Intriguing new report on "Compensating Victims of Crime"
The folks at Justice Fellowship have just released an interesting new report titled simply "Compensating Victims of Crime" as part of its advocacy for restorative justice programming. This report's Executive Summary includes these passages:
Restorative Justice recognizes that crime harms people. Though most people affected by crime are never able to fully reclaim what was taken, victim compensation funds are a tool used within our criminal justice system to advance the much needed value of assisting victims and survivors of crime. Unfortunately, very little of the billions of dollars placed within these funds goes directly to victims and survivors of crime. This report is an extensive overview of victim compensation funds and highlights some concerns and provides some suggestions for reform.
Victim compensation funds are funded by criminal fines and taxpayer dollars and offer monetary assistance to victims and survivors of violent crime. Though similar in concept to restitution, they differ in eligibility requirements, funding sources, and distribution. Currently, victim compensation funds only provide monetary assistance to a small number of victims and survivors of violent crime. Of the approximately 7 million victims of violent crime per year, only 200,000 receive assistance from a compensation fund. Even more disturbing is the ratio of money spent on compensation compared to that which is spent on corrections. In 2012, federal, state, and local governments spent approximately $85 billion on corrections. In the same year, victim compensation funds paid out approximately $500 million dollars—less than 1% of what was spent on corrections.
This disparity cannot be blamed on a lack of funds. The Crime Victims Fund — a hybrid system funded jointly by federal and state dollars, but administered at the state level —currently retains a balance of almost $11 billion, while some states have additional balances that approach $10 million. Congress, however, has capped the total annual Crime Victims Fund spending at $745 million dollars despite the large pool of victims who are eligible to receive funds. Further, the average maximum amount that victims and survivors can receive from a victim compensation fund is $26,000.
Because victim compensation funds are administered on the state level, states differ in the eligibility requirements. All states compensate for medical expenses, mental health counseling, lost wages, funeral costs, and travel. Many states compensate for crime scene cleanup, attorney fees, rehabilitation, replacement services, and relocation services. Few states compensate for things like pain and suffering, property loss, stolen cash, transportation, return of an abducted child, guide dog expenses, domestic services, home healthcare, and forensic exams in sexual assaults.
Unfortunately, many victims do not receive any compensation. This often occurs simply due to a lack of knowledge about the compensation fund. However, there are numerous other reasons, including the fact that there are fairly stringent requirements that one must satisfy to receive funds. Half of all states require victims or survivors to report the crime to law enforcement within 72 hours. 12 states require a police report to be filed within 5 to 10 days. A majority of the states require victims and survivors to file a compensation claim within one to two years, and several states restrict compensation to victims who have a prior felony conviction in the last 10 years. While these requirements may not seem stringent at first glance, consider that many crimes are not ever reported for fear of retribution, continued victimization, or the stigma that comes with being a victim. Forty-two percent of victims do not report serious violent crimes to law enforcement officials. As a result, they are denied access to compensation funds....
The system currently in place can be vastly improved. The federal cap on the dispensing of funds should be raised to $1 billion. Awareness of these funds must be increased through additional community infrastructure and advocacy. Overly restrictive requirements must be relaxed so that people have a chance to qualify for compensation once they know it is available. Finally, stringent oversight and transparency of state funds for victims is necessary to ensure that the money is being used properly. Increasing awareness, access, and availability of compensation funds will prioritize victims and survivors in the criminal justice system and advance the values of restorative justice.
The full text of Compensating Victims of Crime is available here.
June 10, 2014 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack
Saturday, June 07, 2014
Detailing how many more women have come to discover "Orange is the New Black"
To really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):
The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations. So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.
The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)
Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)
Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)
1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)
Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)
Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.
Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)
Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)
Wednesday, June 04, 2014
"Max Out: The Rise in Prison Inmates Released Without Supervision"
The title of this post is the title of a notable new report Public Safety Performance Project of The Pew Charitable Trusts. This press release about the report provides a helpful summary of its main findings, and here are excerpts from the release:
More than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety, according to a report released today by The Pew Charitable Trusts.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs....
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:
Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.
In the past few years, at least eight states—Kansas, Kentucky, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, and West Virginia—adopted reforms to ensure that authorities can supervise all or most offenders after release from prison. These policies, most of which are too new to evaluate, typically carve out the supervision period from the prison sentence rather than add time for it after release. This allows states to reduce prison spending and reinvest some of the savings in stronger recidivism-reduction programs....
These new policies are backed by data that indicate inmates released to supervision are less likely to commit new crimes than those who max out and return home without oversight....
The report outlines a policy framework to guide state leaders in reducing max-outs and recidivism. It recommends that policies require post-prison supervision, carve out the community supervision period from prison terms, strengthen parole decision-making, tailor conditions to offenders’ risks and needs, adopt evidence-based practices, and reinvest savings in community corrections.
Tuesday, June 03, 2014
Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:
In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent. As of now, the change will apply only to defendants who are sentenced after November 1, 2014. But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.
Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000. As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....
Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation. Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....
Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years. In the universe of criminal justice, 38 is old. Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..." These older offenders should have a low risk of recidivism generally. And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.
Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas. True, Texas is big and populous, but it's also punitive. The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent. Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.
The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction. But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.
I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.
That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.
My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors. Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined. These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war. Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.
Some various somewhat recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- New York Times op-ed spotlights enduring flaw with modern drug sentencing
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
Empirical explorations of modern capital clemency
Michael Heise has recently posted on SSRN two intriguing pieces concerning the modern patterns of capital clemency. Here are links and abstracts:
While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct. Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review — let alone interfere with — clemency activity, little, if any, formal legal recourse exists. Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.
Conventional wisdom notes persistent regional differences in the application of the death penalty, with southern states’ appetite for capital punishment exceeding that of non-southern states. Scholars analyzing the distributions of death sentences and state executions find a geographic influence. Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of a criminal justice system that includes capital punishment. If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency. Data, however, reveal some surprises. Using a recently-released data set of all state death row inmates from 1973 to 2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways. No statistically significant differences exist between southern and non-southern states when it came to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states. When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.
Friday, May 30, 2014
The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report
Astute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences." To date, I only noted the report and some early reactions to it in this post.
One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it. But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report. I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates. Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom.
Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis. John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:
The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth. Sadly, it appears to be a deeply, profoundly flawed report. It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.
Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions. The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.
So in the posts ahead, I want to dig into the report more deeply. I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.
From the start, here are John's posts to date highlighting some of the NRC errors he sees:
- The Flawed NRC Report: No Mention of Realignment!
Tuesday, May 27, 2014
Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA
I am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus. As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.
Here, from the start of the first article in the series, are the basic findings of this terrific project:
In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.
Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.
That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.
A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system. Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.
• Leniency for cooperation was doled out liberally. At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation. That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.
• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months. By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison. Those few who went to trial faced an average of 6½ years behind bars.
• Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences. For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house. Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.
Here are links to all the article in the series:
- Mortgage fraud assault a Pyrrhic victory
- Rewards uneven in mortgage fraud cases
- She fought charges, got 10-year term
- Pleading guilty could cut defendant's sentence
Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.
May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, May 21, 2014
Fascinating exploration of modern data on modern mass incarceration
If you like data and like thinking hard about what to think about data about modern mass incarceration (and who doesn't), then you will be sure to like this interesting new posting authored by Andrew Cohen and Oliver Roeder at the Brennan Center for Justice headlined "Way Too Early to Declare Victory in War against Mass Incarceration." Here are excerpts (with some links retained) from an interesting and important bit of number crunching:
At The Week Monday, Ryan Cooper summarized some dramatic statistical work about mass incarceration undertaken by Keith Humphreys, the Stanford University professor and former Obama administration senior advisor for drug policy. The headline of the piece, “The plummeting U.S. prison admission rate, in one stunning chart,” was accompanied by Cooper’s pronouncement that “whatever the reason” for the drop it “is certainly great news.” Some of the same optimism was expressed over the weekend, in The New York Times Book Review section, by David Cole, the esteemed Georgetown law professor who has written so eloquently recently about many of the greatest injustices in American law. Reviewing Columbia University professor Robert Ferguson’s excellent book, “Inferno,” Cole proclaimed that “we may be on our way out of the inferno” and that “it is just possible that we have reached a tipping point” in the fight against mass incarceration.
Would that it were so. It is far too early, as a matter of law, of policy, and of fact, to be talking about a “plummeting” prison rate in the United States or to be declaring that the end is in sight in the war to change the nation’s disastrous incarceration policies. There is still far too much to do, far too many onerous laws and policies to change, too many hearts and minds to reform, too many families that would have to be reunited, before anyone could say that any sort of “tipping point” has been spotted, let alone reached. So, to respond to Humphreys’ work, we asked Oliver Roeder, a resident economist at the Brennan Center for Justice, to crunch the numbers with a little bit more context and perspective. What follows below ought to shatter the myth that America has turned a corner on mass incarceration. The truth is that many states continue to experience more incarceration than before, the drop in national incarceration rates is far more modest than Humphreys suggests, and the trend toward reform could easily stop or turn back around on itself....
[T]he incarceration rate is decreasing, but no, not by much. It’s down 5.5 percent since its 2007 peak. Since 2001, it’s up 1.6 percent. An unscientific word for this trend would be “flat.”
As for individual states’ incarceration rates, experiences over the past decade have varied greatly.... California, New Jersey, and New York have dipped over 20 percent from their 2001 levels, while West Virginia, Minnesota, and Kentucky have seen over 30 percent increases.
Incarceration is a state-specific issue in other senses as well. Clearly the trends can vary dramatically, but so can the rates themselves. In 2012, Louisiana’s incarceration rate was 873, while Maine’s was 159....
So what’s the story? Well one thing it isn’t is crime. There is a body of evidence that indicates that crime doesn’t really affect incarceration. Incarceration, rather, is a policy choice, largely independent of the actual level of crime in the world. (The incarceration rate is not a result of one single policy choice, of course, but rather is a function of many policy choices which compose essentially our willingness or propensity to incarcerate.) Admissions and thus incarceration were increasing because of increased willingness to incarcerate, or reliance on incarceration. I don’t have a good sense as to why admissions and incarceration have been dipping lately, but it does seem to be driven by a minority of (typically large) states.