Sunday, April 12, 2015
"Ending the Death Lottery"
The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:
When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.
This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.
After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.
Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.
Monday, March 30, 2015
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
Monday, March 23, 2015
Why passage of Prop 47 ensures California remains a hot topic in sentencing and corrections reform
This terrific new bit of reporting at The Crime Report, headlined "Prop 47: The Stormy Aftermath," details why California remains a kind perfect storm for those interesting in studying hot topics in the debates over modern sentencing reforms and the relationship between incarceration and crime. Here are excerpts from the piece:
California’s Proposition 47, passed in a referendum last November, set in motion a dramatic reversal of the state’s approach to mass incarceration. The law changed six of California’s low-level offenses from felonies to misdemeanors, and made eligible for resentencing hundreds of thousands of individuals convicted of those crimes.
Not surprisingly, it has drawn the attention of policymakers and law enforcement authorities from across the country — some of it controversial.
“This was such a big fix — being able to go from felony to misdemeanor,” said Lenore Anderson, executive director of Californians for Safety and Justice — an advocacy group that spearheaded the referendum campaign. “We’re engaging in a lot of dialogue about how to change practices, how to put a priority on public safety without relying on over-incarceration.”
But how will success or failure be measured? Four months later, the answer is still not clear — but criminal justice practitioners and advocates contacted by The Crime Report suggest that the passionate debate it fueled is only just beginning.
At a session last month at the John Jay College of Criminal Justice in New York City, Anderson told criminal justice practitioners and advocates that thousands of prisoners have been resentenced and released since Proposition 47 passed with nearly 60 percent of California voters approving the measure. The move should ultimately free up police, court and prison resources to focus on more serious violent crimes, she said....
Critics of the measure, however, warned that letting people out of jail, and removing the threat of felony charges, would lead to an increase in crime and compromise public safety. Their argument appeared to receive some support when the Los Angeles Times reported on February 21 that narcotic arrests in the city declined significantly after voters approved the bill — while property crimes increased. The story also noted: “some criminal justice experts caution against drawing conclusions.”...
One criminologist who isn’t a fan of the early assessments of Proposition 47’s impact on crime is Barry Krisberg, a Senior Fellow of the Earl Warren Institute at the University of California Berkeley Law School — and an occasional contributor to The Crime Report. “This alleged increase in property crimes, I’m not believing it,” he said in an interview. “That information isn’t even officially produced yet; it’s based on police counts, which are often inaccurate.”...
Former San Diego Police Chief Bill Landsowne, who retired in March 2014, says law enforcement organizations — in particular the state’s Police Chiefs, Sheriffs' and District Attorneys associations — are responsible for orchestrating a media push to discredit Proposition 47. “As a sitting chief it would have been very difficult for me to advocate for Prop 47,” Landsowne, a proponent of the referendum, told The Crime Report. “You don’t want to be an outlier in the process, you want to be tough. But police know we need more treatment options in the system."...
To criminologist Eugene O’Donnell a former New York City police officer, the mixed early statistical returns — and the debate surrounding them — is not surprising. “It’s absolutely premature, you can’t just snap your fingers and fix a complicated problem,” O’Donnell, a professor at John Jay College, said. “This is going to be something that has a long-term impact; trying to make a 60-day assessment is impossible.”
Tuesday, March 17, 2015
Notable empirical review of what happens to most death sentences
This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:
If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts. In fact, the most common circumstance is that the death sentence will be overturned....
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
- 8,466 death sentences were imposed across the United States from 1973 through 2013.
- 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
- 2,979 remain on death row as of Dec. 31, 2013.
- 1,359 were executed.
- 509 died on death row from suicide or natural causes.
- 392 had their sentence commuted by the governor to life in prison.
- 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....
In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....
The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.
I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.
In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013. Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period. Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.
Friday, March 06, 2015
Examining some statistical realities behind federal death penalty administration
This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:
As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree. Between 1989 and 2009, some 2,795 cases were eligible for the death penalty. Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel. In the vast majority of the 262 cases, the juries recommended a life sentence instead.
Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial.... [And] the federal government rarely pursues it even in cases that are eligible. The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....
Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row. Only three people have been executed since 1977, the latest in 2001. Some defendants have been waiting on death row for over 20 years.
Tuesday, February 24, 2015
"Can prisons predict which inmates will commit more crimes?"
The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:
States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.
These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.
Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.
Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.
Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.
"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....
The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.
Friday, February 13, 2015
"Pick a stat, any stat. They all tell you the same thing: America is really good at putting people behind bars."
The title of this post is a line from the start of this detailed analysis of incarceration rates and crime by Oliver Roeder, a senior writer for FiveThirtyEight. The piece merits a full read, and here are excerpts from the start and end of the piece:
There are 2.3 million Americans in prison or jail. The U.S. has 5 percent of the world’s population but 25 percent of its prisoners. One in three black men can expect to spend time in prison. There are 2.7 million minors with an incarcerated parent. The imprisonment rate has grown by more than 400 percent since 1970.
It’s supposed to help the country reduce crime in two ways: incapacitation — it’s hard to be a habitual offender while in prison — or deterrence — people scared of prison may do their best to not end up there. But recent research suggests that incarceration has lost its potency. A report released this week from the Brennan Center for Justice at the New York University School of Law finds that increased incarceration has had a very limited effect on crime over the past two and a half decades. At incarceration’s current elevated levels, the effect of more incarceration on crime is not statistically different than zero. It’s no longer working....
[C]rime trends are complicated. Surely no one is complaining about the recent decline, but no one fully understands it either. One thing is becoming clear: Increased incarceration’s role was minimal.
Recent related post:
Thursday, February 12, 2015
New Brennan Center report asks "What Caused the Crime Decline?"
This press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?". This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:
Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law. In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings:
Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.
State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.
Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.
During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars. During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.
“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder. “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”
“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary. “The prison explosion has been very expensive. A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”
“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword. “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”
Sunday, February 08, 2015
Highlighting the role of prosecutorial activity in modern mass incarceration
I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration. The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:
Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high. It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012. But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.
What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place. Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be. If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.
In a conversation with Slate, Pfaff explains his theory....
Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.
A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.
Q: Why would that be?
What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.
As regular readers likely know, I am a big fan of John Pfaff's research. Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities. (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)
That said, in part because John's analysis is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges." In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year. But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s. These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."
In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system. But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted. (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)
My point here is not to assert that John's data analysis is misguided or inaccurate in any way. But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights. And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.
Prior posts about Prof. John Pfaff's important research:
- A systematic examination of prison growth (from 2007)
- Assessing the reality of modern prison growth (from 2009)
- A data-based exploration of prison growth and the drug war (from 2013)
- The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report (from 2014)
- "The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options" (from 2014)
February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, January 11, 2015
"An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State"
The title of this post is the title of this lengthy new research study produced by a group of folks at Seattle University. Helpfully, this Seattle Times article, headlined "Seeking death penalty adds $1M to prosecution cost, study says," provides a summary of some of its findings:
Seattle University has released the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought....
Criminal-justice professor Peter Collins called the study one of the nation’s most “rigorous” examinations of the costs associated with the death penalty. Collins said he wasn’t surprised by the price difference. “I don’t know who coined this term, but this is social science supporting common sense,” he said on Tuesday. “I wasn’t surprised because there was so much anecdotal and other evidence that we’re spending money on these cases.”
In the study, Collins and three other professors reviewed 147 aggravated first-degree murder cases filed in Washington state since 1997, according to the study. They found the average cost of a death-penalty prosecution and conviction is just over $3 million. Not seeking a death-penalty prosecution and sending a person to prison for life costs the state roughly $2 million.
“What this provides is evidence of the costs of death-penalty cases, empirical evidence,” Collins said. “We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.”
The study was funded by a grant from the American Civil Liberties Union of Washington Foundation. Seattle University School of Law professor Bob Boruchowitz, the former head of one of King County’s top public-defense agencies, said that “as far as I know this is the only study of its kind in the country that combines the perspective of social scientists with capital [death penalty] qualified lawyers.”...
The study’s authors point to a rise in costs in death-penalty cases. Starting this month, two of three defendants charged in King County with aggravated murder will have their death-penalty trials begin. The prosecution and defense costs in the three cases have cost King County more than $15 million, according to figures supplied by county officials....
The future of the death penalty in Washington remains unclear. Last February, Gov. Jay Inslee issued a moratorium on the death penalty while he is in office.
Wednesday, December 31, 2014
Big 2014 data (and big 2015 plans?) from US Sentencing Commission
The United States Sentencing Commission has closed out 2014 with a release of lots of notable new sentencing data and notice of an notable meeting to kick off 2015. Here are the data basics/links and the meeting notice via the USSC website:
Final Crack Retroactivity Data Report: This report is the final data report concerning motions for retroactive application of Amendment 750, incorporating the provisions of the Fair Sentencing Act of 2010 into the guidelines.
Notice of Public Meeting: January 9, 2015: The Commission will hold a public meeting to vote on publishing proposed guideline amendments. A presentation will also be given on economic crime.
There are lots of notable stories to be found in these data (and to be anticipated with the USSC's noticed meeting). But most notable, I think, is the quarterly report showing that for all of Fiscal Year 2014 only 46.3% of sentences were imposed within the calculared guideline range and in the final quarter of FY2014 only 43.6% of sentences were within-guideline sentences. in other words, throughout 2014, a non-guideline sentence became more the norm in federal sentencing than a within-guideline sentence.
Critically, these data are surely skewed significantly by the decision by the US Sentencing Commission in January 2014 to lower drug guideline sentences across the board by two levels (combined with the Justice Department's willingness to allow sentencing judges to give effect to the lowered guidelines before they took effect officially on November 1, 2014). Now that the lowered guidelines are officially in place, we might expect to see more within-guideline sentence imposed in FY 2015. But, if the US Sentencing Commission announces in its early 2015 another significant amendment to reduce certain guideline ranges, this pattern could repeat.
In other words, happy data new year from (and to) my favorite judicial branch agency.
"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"
The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.
The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.
Sunday, December 21, 2014
"U.S. Incarceration: Still Mass; The shrink-the-prisons movement hasn’t moved the numbers."
New Bureau of Justice Statistics figures out this morning measured a slight decrease — about half of a percent — in the number of adults incarcerated in the United States last year. The decline comes from a drop in inmates of local jails. The number of people in local jails last year fell by almost 2 percent — to 731,200. At the same time, despite a growing national concern with the costs and consequences of mass incarceration, the number in prisons grew a tiny bit, one-third of a percent from the previous year, to 1,574,700.
The increase in the prison population comes entirely from state facilities — reversing a three-year downward trend. The number of inmates in federal prisons actually declined for the first time since 1980.
There are real lives behind these numbers: every percentage point accounts for approximately 22,200 people. But the rate of change is almost negligible. If the nation’s incarcerated adult population continued to decrease at this pace, it would take 215 years — until 2228 — to drop below the number of adults incarcerated in 1985.
Looking at changes over the long term, the number of inmates in jails and prisons is down from 2010, but remains up more than 14 percent from what it was at the turn of the century.
Recent related post:
Friday, December 19, 2014
New BJS data show continued (very) slow decline in correctional populations in US
This official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Correctional Population Declined By Less Than 1 Percent For The Second Consecutive Year," provides highlights from the latest official accounting of who is subject to criminal justice control in the United States. Here are some of the details:
The number of persons under adult correctional supervision fell by 41,500 persons during 2013, dropping to 6.89 million by yearend, the Bureau of Justice Statistics (BJS) announced today. The decline in the correctional population (down 0.6 percent) was less than 1 percent for the second consecutive year.
By yearend 2013, the number of persons under adult correctional supervision was the smallest number observed since 2003. About 7 in 10 offenders under adult correctional supervision were supervised in the community on probation (3.91 million) or parole (853,200) at yearend 2013, compared to about 3 in 10 incarcerated in state and federal prisons (1.57 million) or local jails (731,200).
The entire drop in the correctional population during 2013 was due to a decline in the number of probationers (down 32,100) and persons held in local jails (down 13,300). The parole population (up 2,100) and prison population (up 4,300) increased, partially offsetting the overall decline in the total correctional population.
While the U.S prison population increased during 2013, the number of inmates under the jurisdiction of the Federal Bureau of Prisons decreased (down 0.9 percent or 1,900) for the first time since 1980. The growth in the U.S. prison population was attributed to the increase in the number of inmates under the jurisdiction of state prisons (up 0.5 percent or 6,300).
About 1 in 35 adults in the United States (or 2.8 percent of the adult resident population) was under some form of correctional supervision at yearend 2013. This rate was unchanged from 2012, when it dropped to the lowest rate observed since 1997. About 1 in 51 adults was on probation or parole at yearend 2013, compared to 1 in 110 incarcerated in prisons or local jails....
In 2013, females accounted for almost 25 percent of the probation population, up from about 22 percent in 2000. They made up 14 percent of the jail population in 2013, up from about 11 percent in 2000. The percentage of females on parole or incarcerated in state or federal prisons remained unchanged between 2000 and 2013. Since 2010, the female jail population has been the fastest growing correctional population, increasing by an average annual rate of 3.4 percent.
The full report with all these data and a whole lot more it titled simply "Correctional Populations in the United States, 2013," is available at this link.
Thursday, December 18, 2014
DPIC year-end report highlights "death penalty decline continues in 2014"
As detailed in this press release, the Death Penalty Information Center today released its high-profile annual report. The full report is available at this link, and here are highlights drawn from the press release:
With 35 executions this year, 2014 marks the fewest people put to death since 1994, according to a report released today by the Death Penalty Information Center (DPIC). The 72 new death sentences in 2014 is the lowest number in the modern era of the death penalty, dating back to 1974. Executions and sentences have steadily decreased, as Americans have grown more skeptical of capital punishment. The states’ problems with lethal injections also contributed to the drop in executions this year.
Executions decreased 10% compared to 2013 — from 39 last year to 35 this year — continuing an overall decline since 1999, when there were 98 executions. The number of states carrying out executions — seven — was the lowest in 25 years. Just three states – Texas, Missouri, and Florida — accounted for 80% of the executions. For the first time in 17 years, Texas did not lead the country in executions, being tied with Missouri at 10.
Death sentences — a more current barometer than executions — have declined by 77% since 1996, when there were 315. There were 79 death sentences last year. This is the fourth year in a row that there have been fewer than 100 death sentences....
Seven people who had been on death row were exonerated in 2014, the most since 2009. Three men in Ohio were cleared of all charges 39 years after their convictions, the longest time of any death row exonerees. Two others in North Carolina were freed after 30 years in confinement. Since 1973, 150 people have been exonerated and freed from death row.
Individual state developments illustrate the growing isolation of death penalty use:
The number of executions has declined in 11 of the past 15 years. In 1999, 20 states carried out executions; in 2014, only 7 states did so.
For the seventh year in a row, Texas had fewer than a dozen death sentences, a sharp decline from 1999, when it had 48.
California (14) and Florida (11) provided 35% of the death sentences in the country.
Washington Governor Jay Inslee announced that no executions would take place while he is governor, joining the governors of Oregon and Colorado in halting executions.
In California, a federal judge declared the state’s death penalty unconstitutional.
Saturday, December 13, 2014
"The Misleading Math of ‘Recidivism’"
The title of this post is the headline of this effective recent piece of reporting and analysis by Dana Goldstein for The Marshall Project. Here are excerpts:
Recidivism, the rate at which former inmates run afoul of the law again, is one of the most commonly accepted measures of success in criminal justice.... [But] recidivism, though constantly discussed, can be widely interpreted — and misinterpreted....
In some studies, violating parole, breaking the law, getting arrested, being convicted of a crime, and returning to prison are all considered examples of recidivism. Other studies count just one or two of these events as recidivism, such as convictions or re-incarceration.
When the federal government calculates a state’s recidivism rate, it uses sample prisoner populations to tally three separate categories: rearrests, reconvictions, and returns to prison, all over a one- to five-year period from the date of release. In contrast, a widely cited 2011 survey from the Pew Center on the States relied on states’ own reporting of just one of those measures: the total number of individuals who returned to prison within three years.
Both the federal and Pew statistics leave out an entire group of former prisoners: those who break the law but don’t get caught. That’s why some recidivism research ... relies on subjects’ self-reports of illegal activity.
Another inconsistency across recidivism studies is the period of time they cover. Though three to five years is considered the gold standard, many studies examine a much smaller time frame. One recent study claimed that a parenting program for prisoners in Oregon reduced recidivism by 59 percent for women and 27 percent for men. But the study tracked program participants for only a single year after they left prison. The likelihood of reoffending does decrease after one year. But according to the Bureau of Justice Statistics, an additional 13 percent of people will be rearrested four years after their release....
In its 2011 Brown v. Plata decision, the U.S. Supreme Court cited California’s stratospherically high recidivism rates (according to the Bureau of Justice Statistics, close to 70 percent of former inmates in the state return to jail or prison within three years of release) as evidence that California prisons do not rehabilitate, but instead “produce additional criminal behavior.” The justices blamed recidivism on overcrowding and the lack of adequate medical services behind bars, and ruled those conditions unconstitutional. The ruling required California to decrease its prison population.
But what if the court’s take on the causes of California’s high recidivism rate is wrong? What if it isn’t primarily prison overcrowding that causes reoffending, but an overly punitive parole system — the same trend that drives the majority of recidivism in New York? That’s what the data shows. Parolees in California are actually less likely than parolees in New York or Illinois to commit a new crime. Yet they are exponentially more likely to be arrested and sent back behind bars for violating the conditions of their parole, according to an analysis of BJS data from researcher Ryan G. Fischer. California law punishes technical parole violations with a few days to four months in a county jail or state prison....
[U]sing federal recidivism data for inmates who left state prisons in 1994, parole violations accounted for the entirety of the gap between California’s recidivism rate and the recidivism rates of other large states. In other words: Because of the differences in how states and localities enforce parole, recidivism rates tell us little about the reoccurrence of the types of crimes with which the public is most concerned: crimes that have a victim.
Sunday, November 30, 2014
Noting some reasons the number of US executions in 2014 are so low
This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:
In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton. His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound. The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.
The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014. So far this year, America has seen the fewest executions — 32 — in 20 years....
A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana. Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.
The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.
Friday, November 28, 2014
Latest New York recidivism numbers provide more to be thankful for
This New York Daily News article, headlined "Ex-cons returning to New York prisons for new felonies hits all time low: data," reports on encouraging news about recidivism rates in the Empire State. Here are the details:
The number of ex-cons returning to New York prisons for new felonies has reached an all-time low, according to the latest data.
Approximately 10% of former inmates get sent back to the big house for crimes committed after they’re released — the lowest recidivism rate since state authorities began counting in 1985. At the same time, the overall prison return rate is hovering at about 40% — mainly due to repeated parole violations....
There was a significant drop in repeat felonies after the state amended its draconian Rockefeller drug laws, according to the data released by the Department of Corrections. Those 1970s-era laws mandated prison sentences for even low-level offenders.
The decline also accompanied a 20% drop in violent crimes and serious property crimes over the past 15 years.
Those who did wind up behind bars for a second time were often there for failing to meet parole stipulations like required drug programs, curfews and counseling. Most of those ex-cons return to prison within 18 months, the state data showed.
Programs designed to help transition prisoners back to civilian life have also helped to smooth the way, according to state officials. The number of ex-inmates sent back to prison within three years of release had dropped from 19% in 1985 to 9% in 2010, according to the data....
The state prison system released 24,605 inmates in 2010. Of those, 2,682 served their entire sentences without parole — and they had a higher-than-average return rate at 18%. Individuals with more past convictions were likelier to return with new ones, the report said.
Sunday, November 16, 2014
Does latest FBI report of crime's decline provide still more support for lead-exposure-crime link?
Regular readers know I am always drawn to the (often overlooked) social science research suggesting lead exposure levels better account for variations in violent crime rates than any other single variable. Consequently, I am happy and eager to note this new data analysis sent my way by researcher Rick Nevin who has been talking up the lead-exposure-violent-crime link for many years.
This short new piece by Nevin, titled "FBI 2013 Crime Statistics: Record Low USA Murder Rate; More Record Low Juvenile Arrest Rates," discusses the recent FBI report (noted here) that crime continued to decline significantly in 2013. Here are parts of Nevin's interesting and encouraging data discussion (with a recommendation readers click through here to see charts and all the links):
The 2013 USA murder rate was the lowest in the history of FBI reports dating back to 1960. The 2013 property crime rate (burglary and theft) was the lowest since 1966, and the 2013 violent crime rate (murder, rape, robbery, and aggravated assault) was the lowest since 1970. The record low 2013 murder rate indicates that the 2013 vital statistics homicide rate (including justifiable homicides) was close to the lowest levels recorded since 1909.
Nevin (2000) found that trends in preschool lead exposure from 1941-1975 explained over 90% of the substantial year-to-year variation in the USA violent crime rate from 1964 to 1998. That relationship has continued for another 15 years, with a 35% decline in the violent crime rate from 1998-2013. No other criminology theory has a comparable record of accurately predicting ongoing crime trends....
From 1991 (when the overall USA violent crime rate peaked) through 2012, the violent crime arrest rate has fallen by about 60% for ages 10-17, 50% for ages 20-29, 40% for ages 30-39, and 5% for ages 40-44, but increased by 14% for ages 45-49 and 17% for ages 50-54. The violent crime arrest rate is still increasing for age groups born before the early-1970s peak in USA preschool lead exposure.
The 2013 FBI report also shows another large decline in juvenile offending, due to ongoing declines in preschool lead exposure. Following record lows in juvenile arrest rates in 2012, the number of juveniles arrested for property crimes fell by another 15% from 2012 to 2013, and the number arrested for violent crimes fell another 8.6%. The property crime arrest rate for ages 10-17 is now about half of what it was in 1960, and the property crime arrest rate for ages 10-14 is just one third of what it was in 1960.
Some recent related posts:
- Huzzah, Huzzah... all crime goes down again in 2013 according to new FBI data
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?
- Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years
- "Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"
- More useful discussion of the (under-discussed) lead-crime-rate connections
- Finding an age-based silver lining — or lead lining — in latest BJS prison data
Saturday, November 15, 2014
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
The title of this post is the title of this notable paper by Anita Mukherjee now available via SSRN. Here is the abstract:
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many.
My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk. These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Saturday, November 01, 2014
Documenting modern state investments in schools and prisons
As reported in this Huffington Post piece, headlined "States Are Prioritizing Prisons Over Education, Budgets Show," a new analysis of state-level spending highlights that states have devoted taxpayer resources in recent years a lot more to prisons relative to schools. Here are the basics from a new report via the HuffPost's summary:
If state budget trends reflect the country's policy priorities, then the U.S. currently values prisoners over children, a new report suggests.
A report released this week by the Center on Budget and Policy Priorities shows that the growth of state spending on prisons in recent years has far outpaced the growth of spending on education. After adjusting for inflation, state general fund spending on prison-related expenses increased over 140 percent between 1986 and 2013. During the same period, state spending on K-12 education increased only 69 percent, while higher education saw an increase of less than six percent.
State spending on corrections has exploded in recent years, as incarceration rates have more than tripled in a majority of states in the past few decades. The report says that the likelihood that an offender will be incarcerated has gone up across the board for all major crimes. At the same time, increases in education spending have not kept pace. In fact, since 2008, spending on education has actually declined in a majority of states in the wake of the Great Recession....
Michael Mitchell, a co-author of the report and a policy analyst with the Center on Budget and Policy Priorities, suggested that education spending could actually help lower incarceration rates. “When you look at prisoners, people who get sent to prison and their educational levels, [the levels are] typically much lower than individuals who are not sent to prison," he told The Huffington Post. “Being a high school dropout dramatically increases your likelihood of being sent to prison.”
“Spending so many dollars locking up so many people, those are dollars that inevitably cannot be used to provide pre-K slots … or financial aid for those who want to go to college,” Mitchell added.
The report suggests that states' spending practices are ultimately harming their economies, while not making the states especially safer. The authors ultimately conclude that if “states were still spending the same amount on corrections as they did in the mid-1980s, adjusted for inflation, they would have about $28 billion more available each year for education and other productive investments.”
“The types of investments to help people out of poverty and break that school-to-prison pipeline are investments in early education, helping youth stay in school and getting them college campuses,” said Mitchell.
The full 21-page report from the Center on Budget and Policy Priorities, titled "Changing Priorities: State Criminal Justice Reforms and Investments in Education," can be accessed at this link.
Wednesday, October 29, 2014
Is the death penalty really dying a slow death . . . in Texas?!?
The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:
On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago. With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.
2014 wasn't anomalous either. Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996. Since then, however, the death penalty has been in overall decline both in Texas and nationwide. Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.
What's driving the decline? Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application. The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....
But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment. Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling. More inmates left Texas' death row alive than dead that year for the first time since 1989. At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.
Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States. Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....
This doesn't mean executions will completely halt any time soon in Texas. State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015. Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent. Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law. Neither are imminent.
I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.
Tuesday, October 28, 2014
BJS releases latest official data on adult offenders on probation or parole
Today the Department of Justice's Bureau of Justice Statistics (BJS) released its latest data on adult offenders under community supervision via the publication excitingly titled "Probation and Parole in the United States, 2013." This BJS webpage provides this summary of this BJS publication:
Presents data on adult offenders under community supervision while on probation or parole in 2013. The report presents trends over time for the overall community supervision population and describes changes in the probation and parole populations. It provides statistics on the entries and exits from probation and parole and the mean time served. It also presents outcomes of supervision, including the rate at which offenders completed their term of supervision or were returned to incarceration....
At yearend 2013, an estimated 4,751,400 adults were under community supervision — down about 29,900 offenders from yearend 2012.
Approximately 1 in 51 adults in the United States was under community supervision at yearend 2013.
Between yearend 2012 and 2013, the adult probation population declined by about 32,200 offenders, falling to an estimated 3,910,600 offenders at yearend 2013.
The adult parole population increased by about 2,100 offenders between yearend 2012 and 2013, to about 853,200 offenders at yearend 2013.
Both parole entries (down 6.2%) and exits (down 7.8%) declined between 2012 and 2013, with approximately 922,900 movements onto and off parole during 2013.
Thursday, October 16, 2014
"Risk and Needs Assessment: Constitutional and Ethical Challenges"
The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.
Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.
The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.
October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack
Thursday, October 02, 2014
Notable new empirical research on citizenship's impact on federal sentencing
I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court?
Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
Wednesday, October 01, 2014
This is your federal sentencing data on drugs (after the minus-2 amendment)
I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update. The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.
Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:
On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses. That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual. Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual. Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11. On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.
On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.
The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices. On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent. This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.
Table 1-B presents data for drug cases only. As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014. This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.
Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report. The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014.
"The Curious Disappearance of Sociological Research on Probation Supervision"
The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.
This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
Thursday, September 25, 2014
Louisiana legislative commission looking closely at capital case costs
As this local article reports, the "Louisiana Legislature is looking into the cost associated with carrying out the death penalty in the state." Here is how:
State Sen. JP Morrell, D-New Orleans, is heading up a new Capital Punishment Fiscal Impact Commission. The group's first meeting was Wednesday morning. Louisiana doesn't have a well-researched estimate of how much it is spending on capital punishment trials and execution, according to Morrell. The commission's goal is to get an idea of what the overall price tag is for executions in the state.
The death penalty might be more expensive than the general public realizes. Inmates on death row are segregated from the main prison population and receive specialized care. Capital murder trials can also be much more expensive than regular murder cases.
Members of the commission include lawmakers, prosecutors, public defenders, law enforcement, an auditor and staff members from nonprofit organizations. The group has been broken down into three subcommittees -- prosecution expenses, defense expenses and general Department of Corrections expenses. The subcommittees will meet approximately once per month. The overall commission will meet once per quarter, according to Morrell. The group has to conclude its work by the end of 2015.
Louisiana's House Appropriations Committee experienced some sticker shock related to the death penalty last spring during the legislative session. The state's public defender told lawmakers he expected to spend $479,000 on legal work related to the murder of a Louisiana State Penitentiary guard. Louisiana has already spent $10 million on court proceedings for the defendants, known as the Angola 5.
"Does Immigration Enforcement Reduce Crime? Evidence from 'Secure Communities'"
The title of this post is the title of this new empirical paper by Thomas Miles and Adam Cox now available via SSRN. Here is the abstract:
Does immigration enforcement actually reduce crime? Surprisingly, little evidence exists either way — despite the fact that deporting noncitizens who commit crimes has been a central feature of American immigration law since the early twentieth century. We capitalize on a natural policy experiment to address the question and, in the process, provide the first empirical analysis of the most important deportation initiative to be rolled out in decades. The policy initiative we study is “Secure Communities,” a program designed to enable the federal government to check the immigration status of every person arrested for a crime by local police. Before this program, the government checked the immigration status of only a small fraction of arrestees. Since its launch, the program has led to over a quarter of a million detentions.
We exploit the slow rollout of the program across more than 3,000 U.S. counties to obtain differences-in-differences estimates of the impact of Secure Communities on local crime rates. We also use rich data on the number of immigrants detained under the program in each county and month — data obtained from the federal government through extensive FOIA requests — to estimate the elasticity of crime with respect to incapacitated immigrants. Our results show that Secure Communities led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer.
Wednesday, September 24, 2014
"Why Are So Many People Getting Sentenced to Death in Houston?"
The title of this post is the headline of this new article in The National Journal. It gets started this way:
Just 10 U.S. counties — roughly 0.3 percent of the nation's total — account for more than a quarter of all the American executions that have been carried out since 1976.
Texas's Harris County, which includes Houston, is far and away the leader in executions during that period. That district has handed out 122 death sentences that were carried to completion, more than double the next highest. Harris County alone is responsible for more executions than any state besides Texas.
Dallas County, which includes the Dallas-Fort Worth area, comes in second at 53.
Brennan Center urges new orientation in "Federal Prosecution for the 21st Century"
As noted in prior posts here and here, Attorney General Eric Holder gave a big speech yesterday in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration." In that speech, AG Holder praised the Brennan Center's effort to encourage prosecutrs to "shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success." These Brennan Center efforts are reflected in this important new publication titled "Federal Prosecution for the 21st Century." Here is how the Center describes this report:
This new report from the Brennan Center for Justice at NYU School of Law proposes modernizing one key aspect of the criminal justice system: federal prosecutors. Prosecutors are in a uniquely powerful position to bring change, since they make decisions about when and whether to bring criminal charges, and make recommendations for sentencing. The report proposes reorienting the way prosecutors’ “success” is measured around three core goals: Reducing violent and serious crime, reducing prison populations, and reducing recidivism. The mechanism for change would be a shift in how attorneys' performance is assessed, to give prosecutors incentives to focus on how their practices reduce crime in and improve the communities they serve, instead of making their "success" simply a measure of how many individuals they convict and send to prison.
Thursday, September 18, 2014
BJS reports modest decline in violent and property crimes in 2013
As detailed in this official press release from the Justice Department’s Bureau of Justice Statistics, the results of the BJS crime victimization survey shows that the "overall violent crime rate declined slightly from 26.1 to 23.2 victimizations per 1,000 U.S. residents from 2012 to 2013." Here are more of the statistical details:
The 2013 decrease in violent crime was largely the result of a slight decline in simple assault, which is violence that does not involve a weapon or serious injury. The rate of violence committed by strangers also declined in 2013. However, there was no statistically significant change in the rate (7.3 per 1,000 in 2013) of serious violence, defined as rape or sexual assault, robbery or aggravated assault.
In addition, there were no significant changes from 2012 to 2013 in the rates of firearm violence (1.3 per 1,000), violence resulting in injury to the victim (6.1), domestic violence (4.2) or intimate partner violence (2.8)....
In 2013, 1.2 percent of all U.S. residents age 12 or older (3 million persons) experienced at least one violent victimization, down from 1.4 percent in 2012. About 0.4 percent (1.1 million persons) experienced at least one serious violent victimization.
The overall property crime rate, which includes burglary, theft and motor vehicle theft, also decreased after two consecutive years of increases. From 2012 to 2013, the rate declined from 155.8 to 131.4 victimizations per 1,000 U.S. households. The rate of theft declined from 120.9 to 100.5 victimizations per 1,000 households, driving the decline in the overall rate. In 2013, 9 percent of all households (11.5 million households) experienced one or more property victimizations....
Violent victimization in urban areas declined from 32.4 per 1,000 in 2012 to 25.9 per 1,000 in 2013. The violent crime rate declined for males but did not change significantly for females from 2012 to 2013. From 2012 to 2013, the violent crime rate declined for blacks while remaining flat for whites and Hispanics.
The NCVS is the largest data collection on criminal victimization independent of crimes reported by law enforcement agencies to the FBI’s Uniform Crime Reporting Program (UCR) — the nation’s other key measure of the extent and nature of crime in the United States. During 2013, about 90,630 households and 160,040 persons age 12 or older were interviewed for the NCVS. Since the NCVS interviews victims of crime, homicide is not included in these nonfatal victimization estimates.
The full report written by BJS statisticians and titled simply "Criminal Victimization, 2013" is available at this link.
Wednesday, September 17, 2014
Finding an age-based silver lining — or lead lining — in latest BJS prison data
Regular readers know I am very intrigued by the (often overlooked) social science research that suggests lead exposure levels better account for variations in violent crime rates than any other single variable. Consequently, I am happy an eager to note this new data and analysis sent my way by researcher Rick Nevin who has been talking up the lead-exposure-violent-crime link for many years.
This short new piece by Nevin, titled "Prisoners in 2013: The News Media Buries the Lead," responds to yesterday's report from the Bureau of Justice Statistics that the US prison population increased in 2013 for first time since 2009. Without vouching for the data, I am eager to highlight Nevin's interesting and encouraging age-based data discussion (with bolding in original and a recommendation to click through here to see charts and all the links):
The news media is reporting on U.S. incarceration data from the Bureau of Justice Statistics (BJS), but the media and BJS have ignored the important news: From 2012 to 2013, the male incarceration rate fell 21% for men ages 18-19, 6% for ages 20-24, and 5% for ages 25-29, but increased by 5% for ages 50-54, 7% for ages 55–59, and 8% for ages 60–64.
BJS Prisoner Series data show an ongoing incarceration rate decline for younger males and an increase for older males that has been ignored by the media for more than a decade. From 2002 to 2013, the male incarceration rate fell by 61% for men ages 18-19, 34% for ages 20-24, and 25% for ages 25-29, but increased by 30% for ages 40-44.
BJS data for older age groups, reported since 2007, show the same trend through the age of 64. From 2007 to 2013, the male incarceration rate fell 37% for ages 18-19, 28% for ages 20-24, 14% for ages 25-29, and 7% for ages 30-44, as the male incarceration rate increased 22% for ages 45-49, 50% for ages 50–54, and 57% for ages 55–64. In 2007, men ages 18-19 were twice as likely to be incarcerated as men ages 60-64. In 2013, men ages 60-64 were almost 20% more likely to be incarcerated than men ages 18-19.
The BJS Prisoners in 2013 report ignores the detailed data on trends in male incarceration rates by age, and highlights an increase in the total prison population of about 4,300 from 2012 to 2013, but notes that the overall incarceration rate (per 100,000 U.S. residents) did fall from 480 in 2012 to 478 in 2013....
The actual BJS data show a long-term trend of falling incarceration rates for younger men that has continued from 2002 through 2013. That decline was the inevitable result of a shift in violent crime arrest rates by age since the 1990s. From 1994 through 2011, the violent crime arrest rate fell by 64% for ages 13-14, 61% t0 52% for ages 15-18, 44% to 39% for ages 19-21, 37% for ages 22-39, and 19% for ages 40-44, as the violent crime arrest rate increased by 6% for ages 45-49, and 13% for ages 50-54.
What is the causal force behind the shift in age-specific violent crime arrest rates and incarceration rates? The Answer is Lead Poisoning.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?
- Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years
- "Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"
- More useful discussion of the (under-discussed) lead-crime-rate connections
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.