Thursday, October 22, 2015
Noting the notable decline in death sentences in Texas
A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions. In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.
But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise. And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:
Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.
Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”
In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.
Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.
There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.
Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”
The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."
Saturday, October 17, 2015
"The Decline of the Virginia (and American) Death Penalty"
The title of this post is the title of this notable new article by Brandon Garrett now available via SSRM. Here is the abstract:
The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence).
Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia. However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings. Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline.
I examine additional evidence from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.
Thursday, October 15, 2015
Texas completes its 12th execution of 2015
While many other states continue to struggle to acquire execution drugs (as highlighted here) or to properly administer the drugs they have (as highlighted here), Texas continues to have its machinery of death humming. This AP article, headlined "Texas Executes Inmate for Killing Dallas Police Officer," reports on the state's latest execution:
A Texas man already being sought for a neighbor's slaying when he killed a Dallas police officer outside a club was executed Wednesday. Licho Escamilla was put to death for the November 2001 death of Christopher Kevin James who was trying to break up a brawl involving Escamilla. The 33-year-old prisoner was pronounced dead at 6:31 p.m. CDT — 18 minutes after the lethal injection began.
Escamilla became the 24th convicted killer executed this year in the United States. Texas has accounted for 12 of the executions. Before dying, Escamilla looked at the slain officer's daughter, who was seated a few feet away watching through a window, and told her: "God bless your heart."
He turned to his relatives watching through another window and said he loved them and everyone who supported him. "Pope Francis, God's children has asked the state of Texas to switch my death sentence to life in prison," he said. "But the state of Texas has refused to listen to God's children. They will have to take that up with God," he added.
He took two breaths as the sedative pentobarbital took effect, then became still. His sister cried and screamed for God not to take him. The rumbling of motorcycles could be heard outside the prison where bikers supporting the punishment had gathered....
James and three other uniformed officers were working off-duty when the brawl started. Escamilla pulled out a gun and opened fire on the officers as they tried to end the fight. The bullets from his 9 mm semi-automatic handgun struck James twice, knocking him to the ground. Escamilla then calmly walked up to the officer and fired three more shots into the back of his head before running and exchanging shots with other officers, witnesses said. A second officer wounded in the shootout survived. A wounded Escamilla was arrested as he tried to carjack a truck.
About a half-dozen Dallas police officers stood at attention and saluted as relatives of the slain officer entered the prison in Huntsville ahead of the execution. "It's taken longer than we would have liked," Frederick Frazier, first vice president of the Dallas Police Association, said. He said he and others showed up to support James and make sure he's remembered for the work he did. While officers know they're risking their lives every day, James' death has been difficult for them because of how it happened, Frazier added.
Tuesday, September 29, 2015
Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?
As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging. The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws. This narrative always struck me as a bit too simplistic and incomplete.
Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration. This counter-narrative is today well-explained in this New York Times column by David Brooks. Here are highlights:
Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars. And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.
First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatoryminimum sentencing laws led to a throw-away-the-key culture, with long, cruel and pointlessly destructive prison terms....
The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate. The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions. Only 17 percent of these inmates are in for a drug-related offense, or less than one in five.
Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011. Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.
The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem. The mandatory-minimum theory is also problematic. Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....
His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades. Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years. The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.
So what does explain it? Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.
I asked Pfaff why prosecutors are more aggressive. He’s heard theories. Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office. Maybe the police are bringing stronger cases. Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.
Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box. He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.
Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low-level dealers. In reality, reducing mass incarceration means releasing a lot of once-violent offenders. That may be the right thing to do in individual cases, but it’s a knotty problem.
Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."
But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot. In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways. The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions. (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)
This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002. During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002. In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982. I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.
I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration. The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions. But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.
September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)
Thursday, September 17, 2015
Lots of new data from BJS on prisoners and from USSC on federal sentencing
Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources. Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:
From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"
From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"
Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics. With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:
The number of prisoners held by state and federal correctional authorities on December 31, 2014 (1,561,500) decreased by 15,400 (down 1%) from yearend 2013.
The federal prison population decreased by 5,300 inmates (down 2.5%) from 2013 to 2014, the second consecutive year of decline.
The number of women in prison who were sentenced to more than 1 year increased by 1,900 offenders (up 2%) in 2014 from 104,300 in 2013 to 106,200 in 2014.
In 2014, 6% of all black males ages 30 to 39 were in prison, compared to 2% of Hispanic and 1% of white males in the same age group.
Violent offenders made up 54% of the state male prison population at yearend 2013, the most recent year for which data were available.
Half of males (50%) and more than half of females (59%) in federal prison were serving time for drug offenses on September 30, 2014
Wednesday, September 09, 2015
Examining death penalty developments in distinct death penalty states
The death penalty is subject to plenty of attention and scrutiny nationwide and especially in states that have traditionally carried out the most executions like Texas and Oklahoma. But, I have noticed in the last few weeks some headline-making developments and/or notable commentary concerning capital punishment procedures and practices in a lot of distinct states with distinct death penalty histories. Going alphabetically by state, here is a round-up of some of the recent media pieces that have caught my eye:
Delaware: "Judge blasts Delaware death penalty case"
Pennsylvania: "End Pennsylvania’s limbo over death penalty"
Tuesday, September 01, 2015
"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"
The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:
This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.
However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites. After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent. These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.
September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)
Guns, gangs, ganja, going after police ... are there obvious lessons from 2015 homicide spikes?
The question in the title of this post is prompted by this lengthy front-page New York Times article spotlighting the notable spike in homicides in many US cities so far in 2015. The article is headlined "Murder Rates Rising Sharply in Many U.S. Cities," and here are excerpts:
Cities across the nation are seeing a startling rise in murders after years of declines, and few places have witnessed a shift as precipitous as this city. With the summer not yet over, 104 people have been killed this year — after 86 homicides in all of 2014.
More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier. In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.
Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing. Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.
Rivalries among organized street gangs, often over drug turf, and the availability of guns are cited as major factors in some cities, including Chicago. But more commonly, many top police officials say they are seeing a growing willingness among disenchanted young men in poor neighborhoods to use violence to settle ordinary disputes....
Urban bloodshed — as well as the overall violent crime rate — remains far below the peaks of the late 1980s and early ’90s, and criminologists say it is too early to draw broad conclusions from the recent numbers. In some cities, including Cincinnati, Los Angeles and Newark, homicides remain at a relatively steady rate this year.
Yet with at least 35 of the nation’s cities reporting increases in murders, violent crimes or both, according to a recent survey, the spikes are raising alarm among urban police chiefs. The uptick prompted an urgent summit meeting in August of more than 70 officials from some of the nation’s largest cities. A Justice Department initiative is scheduled to address the rising homicide rates as part of a conference in September....
The police superintendent in Chicago, Garry McCarthy, said he thought an abundance of guns was a major factor in his city’s homicide spike. Even as officials in both parties are calling for reducing the prison population, he insisted that gun offenders should face stiffer penalties. “Across the country, we’ve all found it’s not the individual who never committed a crime before suddenly killing somebody,” Mr. McCarthy said on Monday. “It’s the repeat offenders. It’s the same people over and over again.”
Among some experts and rankandfile officers, the notion that less aggressive policing has emboldened criminals — known as the “Ferguson effect” in some circles — is a popular theory for the uptick in violence. “The equilibrium has changed between police and offenders,” said Alfred Blumstein, a professor and a criminologist at Heinz College, Carnegie Mellon University.
Others doubt the theory or say data has not emerged to prove it. Richard Rosenfeld, a criminologist from the University of Missouri-St. Louis, said homicides in St. Louis, for instance, had already begun an arc upward in 2014 before a white police officer killed an unarmed teenager, Michael Brown, in nearby Ferguson. That data, he said, suggests that other factors may be in play.
Less debated is the sense among police officials that more young people are settling their disputes, including one started on Facebook, with guns....
In New Orleans, Michael S. Harrison, the police superintendent, said the city’s rise in homicides did not appear to reflect any increase in gang violence or robberies of strangers, but rather involved killings inside homes and cars by people who know their victims — particularly difficult crimes to predict or prevent....
In New York, there have been a larger number of gang-related killings, Stephen Davis, the department’s top spokesman, said. But he also said many homicides remained unexplained, the result of disputes with murky origins. “There are a lot of murders that happen in the spur of the moment,” Mr. Davis said.
Especially because 2014 was a year with record-low homicide rates in many jurisdictions, I am not too surprised (though I am much troubled) by these new homicide data. I share the view that it is too early to draw any firm conclusions as to what is causing or what should be done about this uptick in deadly urban violence. But I also think it is not too early for researchers to be asking a lot of hard questions about what sets of legal and social factors which were previously successful in reducing homicide rates are now proving less effective.
Astute readers should see that I threw ganja into the alliterative mix of factors in the title of this post because changes in national marijuana policies and practices are among the legal and social factors that I have been watching closely lately in relation to crime rates. This New York Times article does not discuss this factor — or many others crime and punishment factors like increases in opioid addiction, or reduced use of the death penalty — surely because there are so many different and hard-to-track factors which might play some role in any changing nationwide crimes patterns.
Saturday, August 29, 2015
"Federal Drug Sentencing Laws Bring High Cost, Low Return"
The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:
More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.
Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.
Friday, August 28, 2015
Despite copious reform talk, big and tough federal drug sentencing system churns on
As regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years. And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.
The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year. But this overall decline was driven mostly by a significant decline in immigration cases. Here are some snippets from the report which highlight some of modern federal sentencing trends:
The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011. Since then the number of cases has decreased each year. In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836. Since fiscal year 2011, the number of these cases has declined by 12.0 percent....
Drug cases have traditionally been the most common federal cases. However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011. That year immigration cases were the most common offense in the federal system.... In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses. That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....
Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.
For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007. In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months). This compares to a high of 129 for these offenders in fiscal year 2007. Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months). Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....
Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines. In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993. The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent. This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.
In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases. Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.
These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.
August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)
Do tough sex offender restrictions really hurt women and children more than keeping them safe?
The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:
In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.
But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....
Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.
The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.
Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....
Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....
Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.
None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.
There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.
Thursday, August 27, 2015
BJS releases latest data on crime victimization throughout United States
This new press release from the Bureau of Justice Statistics reports on encouraging crime news for 2014 based on one notable metric. Here are the basic data from the press release:
The violent crime rate did not change significantly in 2014 compared to 2013, the Bureau of Justice Statistics (BJS) announced today. Violent crimes include rape or sexual assault, robbery, aggravated assault and simple assault. In 2014, the violent crime rate was 20.1 victimizations per 1,000 U.S. residents age 12 or older.
The rate of domestic violence, which includes crime committed by intimate partners (current or former spouses, boyfriends or girlfriends) and family members was also unchanged from 2013 to 2014 (4.2 per 1,000). Likewise, in 2014 the rates of intimate partner violence (2.4 per 1,000), violence resulting in an injury (5.2 per 1,000) and violence involving a firearm (1.7 per 1,000) did not change significantly.
In comparison, the property crime rate, which includes burglary, theft and motor vehicle theft, fell from 131.4 victimizations per 1,000 households in 2013 to 118.1 per 1,000 in 2014. The overall decline was largely the result of a decline in theft....
From 2013 to 2014, crime rates varied slightly by region. There was no significant difference in the rate of violent crime in the Midwest and South, while the Northeast and West had slight decreases. Property crime rates decreased in the Midwest, South and Western regions of the country, but there was no significant change in the rate of property crime in the Northeast....
From 2013 to 2014, there were no significant changes in rates of violent crime across urban, suburban and rural areas.
The full new BJS report, excitingly titled "Criminal Victimization, 2014," is available here and the findings are based on data from the National Crime Victimization Survey (NCVS). Interestingly, while the press release quoted above emphasizes there has been no change in violent crime rate, the first few paragraphs of the full report provides a slightly more encouraging story based on the detailed numbers (and the broader multi-year trends) and highlighted by my emphasis below:
In 2014, U.S. residents age 12 or older experienced an estimated 5.4 million violent victimizations and 15.3 million property victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS). There was no significant change in the overall rate of violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2013 (23.2 victimizations per 1,000 persons age 12 or older) to 2014 (20.1 per 1,000) (figure 1). However, the rate of violent crime in 2014 was lower than the rate in 2012 (26.1 per 1,000). From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000.
The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 131.4 victimizations per 1,000 households in 2013 to 118.1 victimizations per 1,000 in 2014. The decline in theft accounted for the majority of the decrease in property crime. Since 1993, the rate of property crime declined from 351.8 to 118.1 victimizations per 1,000 households.
This particular BJS data source had shown an uptick in overall crime in the period from 2010 to 2012. It is encouraging news that this data source is now showing that crime seemed to be going back down again in the period from 2012 to 2014.
Wednesday, August 26, 2015
New research report examines impact of "Realignment" on crime in California in 2014
Via an email from the Center on Juvenile and Criminal Justice (CJCJ), I received news about this notable new research report titled "Realignment and Crime in 2014: California’s Violent Crime in Decline." Here is how the CJCJ report was summarized in the email I received:
A new report from the Center on Juvenile and Criminal Justice examines the impact of Public Safety Realignment on county crime given newly produced 2014 data. CJCJ finds no causal relationship between Realignment and changes in rates of reported Part I offenses.
• Since Realignment was implemented in 2011, statewide violent crime and property crime have generally decreased. This decline seems to be a continuation of the downward crime trend of the past two decades that has not demonstrably been affected by Realignment.
• Almost all counties experienced a decrease in their rates of state prison commitments for non-violent offenses in 2013 versus 2010. However, these declines showed no correlation with changes in crime rates in individual counties in 2014 versus 2010. For example, Orange County’s rate of non-violent prison admissions decreased by 53 percent along with substantial reductions in crime, while adjacent Riverside County saw a 30 percent decrease in non-violent prison admission rates along with less favorable crime trends.
• Trends in motor vehicle theft, which some researchers have connected to Realignment, were highly erratic among individual counties (for example, down 35 percent in Fresno County; up 102 percent in Shasta County). No correlations between Realignment and motor vehicle theft were apparent.
This report builds on CJCJ's previous county-level analyses finding that no definitive conclusions can be drawn about the impact, if any, of Realignment on crime at this time. Instead, this report highlights nine “model counties” that have shown uniquely large decreases in reliance on state prisons alongside uniquely large reductions in property, violent, and total crime. Policymakers should study the measures taken in these nine counties to better implement effective and safe statewide decarceration strategies.
August 26, 2015 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)
Sunday, August 23, 2015
Could marijuana reform be making Washington roadways safer even if more drivers test positive for THC?
The question in the title of this post is prompted by a chart reprinted here that accompanies this extended article concerning the variety of possible impacts of marijuana reform in Washington state. The article is headlined "Is marijuana dragging us down?: Here's a look at marijuana's role in traffic fatalities, quality-of-life issues, crime," and here are criminal justice excerpts (with key line emphasized):
When recreational marijuana was legalized, Washington entered the unknown, triggering questions — and predictions — about what might happen. Would drug dealers hang around the pot shops? Would it bring riffraff into the neighborhood and make shops easy crime targets? Would people abuse the drug? Or smoke and drive, putting others in harm's way?...
The Washington Traffic Safety Commission found that marijuana has increasingly become a factor in fatal crashes. Most drivers in fatal collisions are tested for drugs. In 2014, among 619 drivers involved in fatal crashes, 89 tested positive for cannabis, according to the Washington Traffic Safety Commission. Of those marijuana-positive drivers, 75 had active THC (the psychoactive compound in cannabis) in their blood, meaning they had recently used the drug. That's twice as many drivers with active THC in their blood than there were in 2010. About half of those 75 drivers were above the legal limit of 5 nanograms of THC per milliliter of blood, the traffic safety commission said. The driver with the highest THC level tested at 70 nanograms of marijuana per milliliter of blood — 14 times the legal limit.
Half of last year's THC-positive drivers were also under the influence of alcohol, and most were above the 0.08 blood alcohol concentration limit, the traffic safety commission said. Marijuana and alcohol used together has a compounding effect.
Shelly Baldwin, spokeswoman for the Washington Traffic Safety Commission, said drugs have surpassed alcohol as factors in fatal crashes. "Marijuana ends up being the most frequent drug, but certainly we see methamphetamine and opiates and cocaine, prescription drugs. There's a long list," Baldwin said....
In 2014, 703 Washington drivers tested positive for being above the legal marijuana limit of 5 ng/mL. That's a fraction of the total DUI violations, which were 25,795 statewide last year. In general, though, driving under the influence violations have gone down in Washington. That means the increase in marijuana detection among drivers is a new, unnerving trend for traffic officials....
The who, what, when, where, why and how of crime is always changing. Officials are hesitant to say what leads to crime, given its ebb and flow, making it difficult to discern whether legalizing pot affected public safety.
Marijuana-related crimes, such as possession and selling of drug paraphernalia, have dropped off, which makes sense given it's now legal to have pot and a pipe. In general, crime has gone down around Clark County, though it increased about 1 percent for the whole state last year, according to the Washington Association of Sheriffs and Police Chiefs. Drug violations accounted for nearly 13,700 crimes reported statewide last year — an uptick from 2013's almost 13,000 violations.
The question in the title of this post is generated by what strikes me as a remarkable — and remarkably significant? — 35% decline in the total number of DUI offenses in Washington state since marijuana was legalized by voter initiative in 2012. Many public health experts have led me to conclude that if a significant segment of the population substitutes marijuana use for alcohol use — instead of supplementing alcohol with marijuana — there will be net public-health benefits because of reduced alcohol-related harms that should surpass any increased marijuana-related harms. These data from Washington state, which do seem to show a small increase in marijuana-related roadway harms, suggest there has been a major overall reduction in dangerous driving and thus net public safety benefits in the Evergreen State since marijuana was legalized.
As I say repeatedly in a variety of settings, it is way too early to reach any firm conclusions about what basic crime and public safety data in marijuana reform jurisdictions really mean for the short- or long-term consequences of legalizations. Nevertheless, even the basic numbers reported here highlight the importance of considering all marijuana-specific data in the context of the broader public safety issues with which they interact.
Thursday, August 13, 2015
New juve research suggests punishment certainty matters over severity to achieve deterence
This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:
Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.
In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.
The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....
The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Monday, August 10, 2015
Taking stock of what Glossip now means for executions throughout the US
The most important practical question in the wake of the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol — not only for the roughly 3000 murderers currently on death row throughout the United States, but also for all those eager to see death sentences carried out — is whether Glossip will increase the chances and speed with which the condemned get taken to a death chamber for a execution. This new AP article, headlined "Justices Speak out About Death Penalty, but Executions Go On," speaks somewhat to this reality (while also highlighting that court challenges to death sentences are not going to decline anytime soon). Here are excerpts:
Wherever their summer travels have taken them, Supreme Court justices probably will weigh in over the next few days on Texas' plans to execute two death row inmates in the week ahead. If past practice is any guide, the court is much more likely to allow the lethal-injection executions to proceed than to halt them.
Opponents of the death penalty took heart when Justices Stephen Breyer and Ruth Bader Ginsburg made the case against capital punishment in late June as arbitrary, prone to mistakes and time-consuming. Even if death penalty opponents eventually succeed, the timeline for abolition probably will be measured in years, not months.
That's because Breyer, joined by Ginsburg, was writing in dissent in a case involving death row inmates in Oklahoma, and five sitting justices, a majority of the court, believe "it is settled that capital punishment is constitutional," as Justice Samuel Alito wrote in his opinion for the court in that same case.
Texas has scheduled back-to-back executions Wednesday and Thursday for Daniel Lee Lopez and Tracy Lane Beatty. Lopez was convicted of running over a Texas police officer with his car during a high-speed chase. Lopez' lawyer already has asked the court to stop the execution. Beatty strangled his 62-year-old mother, then stole her car and drained her bank accounts. He has an appeal pending in lower courts and could also end up at the Supreme Court.
The justices rarely issue last-minute reprieves to death-row inmates. Even after Breyer's opinion calling for a re-examination of capital punishment by the Supreme Court, no justice publicly backed a Missouri inmate's plea to halt his execution to allow the court to take up the constitutionality of the death penalty.
Similarly, the three Oklahoma inmates who lost their high court case now face execution in September and October and want the justices to reconsider the decision from June in light of Breyer's dissent. The court almost never does that....
The 18 executions that have taken place so far this year have been carried out in just five states — Texas, Missouri, Georgia, Florida and Oklahoma. Nine of those were in Texas. Twelve states with the death penalty have not had an execution in more than five years. That list includes California and Pennsylvania, which between them have more than 900 death row inmates....
Geographic disparity was among several defects Breyer and Ginsburg identified in June. Another is the length of time many inmates spend living under a sentence of death, which Breyer had previously suggested also might be a violation of the constitutional ban on cruel and unusual punishment. Six of the 18 men who have been executed in 2015 spent at least 20 years on death row, including one who served 31 years before his execution....
Among the questions surrounding the possibility that the Supreme Court would take up the constitutionality of the death penalty is the makeup of the court itself. With four justices in their late 70s or early 80s, the next president might have the chance to fill several vacancies and could change the court's direction.
"Obviously, the composition of the court matters greatly and the biggest unknown variable about the life of the American death penalty is the presidential election of 2016. My expected time frame for constitutional abolition varies greatly based on the result," said Jordan Steiker, a University of Texas law professor....
Steiker said he thinks Breyer's dissent will serve as a road map for death penalty lawyers and future justices who may not feel constrained to wait before grappling with executions. "It was invigorating to those who'd like to see constitutional abolition," he said. "The arguments not new, but they had not been marshaled as effectively by a justice until this opinion."
Critically, Glossip does not preclude Eighth Amendment challenges to various execution protocols, it just makes it somewhat harder for these challenges to prevail. In addition, states continue to face practical challenges in acquiring execution drugs and often have to deal with with state-level execution administration difficulties. For those reasons, I am not surprised we have not yet seen a significant post-Glossip up-tick in executions.
More broadly, unless and until a handful of recently execution-dormant states with sizeable death rows get back in the execution business — states like Alabama, Arizona, California, North Carolina, Ohio and Pennsylvania — it remains likely that more condemned murderers on death rows in the US will die of natural causes than will have their capital punishments actually carried out.
Thursday, August 06, 2015
"Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century"
The title of this post is the headline of this new paper just now appearing on SSRN and authored by Meg Beardsley, Sam Kamin, Justin F. Marceau and Scott Phillips. Here is the abstract:
This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state.
Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.
Tuesday, August 04, 2015
"Should prison sentences be based on crimes that haven’t been committed yet?"
The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing. The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:
Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.
Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science. The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.
But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars....
[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.
There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.
The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...
The core questions around risk assessment aren’t about data. They are about what the goals of criminal justice reforms should be. Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities. Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals. But once they enter the real world, there are usually trade-offs.
August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)
Saturday, August 01, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Thursday, July 30, 2015
What accounts for decline in federal white-collar prosecutions (and should we care)?
The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:
Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.
The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.
During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.
The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).
The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.
White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.
Thursday, July 23, 2015
"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
Tuesday, July 14, 2015
In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform. Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.
But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform. Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):
Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.
And yet, this increased spending has not yielded results. More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.
Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community. These are the ties we need to help reintegrate offenders as productive members of society.
These severed ties are also at the heart of the moral case for reform. It’s not just the people in prison who are paying the punishment for their crimes. Mass incarceration tears families apart and deprives children of their fathers and mothers. It likely means a loss of job, possibly home, and any support he or she had within the community.
And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process. The system is broke, and it’s our job to fix it.
It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.
Prior related post:
July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)
Sunday, July 12, 2015
"The Economic Perspective on Sentencing"
The title of this post is the title of this article authored by Joshua Fischman recently posted on SSRN. Here is the abstact:
Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious. This Essay considers what economists have to contribute to the study of sentencing. One common explanation — that economists’ use of rational choice modeling has applicability to the study of deterrence — does not adequately account for much of the sentencing research that economists are producing.
This Essay considers two alternative explanations. First, empirical research in both fields is predominately observational. Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of which have also proved useful in the study of criminal sentencing. Second, both fields are policy-oriented social sciences. Methods developed by economists for relating data to theoretical normative constructs, such as surplus and social welfare, have also proven useful in sentencing research, particularly in the study of inter judge disparity.
Friday, July 03, 2015
New CRS report: "Risk and Needs Assessment in the Criminal Justice System"
A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:
The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013. Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.
There have been legislative proposals to implement a risk and needs assessment system in federal prisons. The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism. Such credits would allow inmates to be placed on prerelease custody earlier. The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.
Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism. Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors. Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention. In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism. It also suggests that no single instrument is superior to any other when it comes to predictive validity.
The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment. The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention. The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior. The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.
However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy. Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.
There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:
• Should risk and needs assessment be used in federal prisons?
• Should certain inmates be excluded from earning additional time credits?
• Should risk assessment be incorporated into sentencing?
• Should there be a decreased focus on punishing offenders?
July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Thursday, June 25, 2015
Highlighting the need for much better modern prison metrics
Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:
The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.
Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.
Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.
Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.
Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.
A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....
The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?
Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.
The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.
Wednesday, June 24, 2015
"A Shrinking Texas Death Row"
The title of this post is the headline of this intriguing new item from the Texas Tribune. The piece has a series of great interactive charts providing the details on this basic death-penalty data story:
The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.
The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year. So far this year, nine inmates have been executed.
The main reason is a drop in new death sentences. In 1999, 48 people were sentenced to Texas death row, according to BJS data. In 2008, that number was nine — and has stayed in that range ever since. This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).
Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant. “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."
Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions. In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.
But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants. Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....
Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ. Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.
Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates. So far this year, Kase said three death penalty cases have gone to trial. All have ended with life-without-parole sentences.
Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission
I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website. Here is the text of the alert I received (along with relevant links):
Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels. This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment. Read the report.
For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”
The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle. Public comment is due on or before July 27, 2015. More information
There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,
June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Tuesday, June 16, 2015
Notable new data and other recent posts from Marijuana Law, Policy and Reform
I am pleased to see that the growing state, national and interenation marijuana reform movement is leading to much more research on marijuana use and law enforcement activities (in Colorado and elsewhere). I have revently reported on some notable new research at Marijuana Law, Policy and Reform, and here are links to those posts (and a few other recent posts of note):
- Colorado Supreme Court affirms statutory interpretation permitting dismissal of medical marijuana user
Friday, June 05, 2015
"Sex Offender Law and the Geography of Victimization"
The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN. The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):
Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated. We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.
Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live. To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders. We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk. Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs.
Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."
Monday, June 01, 2015
"The Missing Statistics of Criminal Justice"
The title of this post is the headline of this interesting commentary by Matt Ford in The Atlantic. The subheadline sets out its themes: "An abundance of data has fueled the reform movement, but from prisons to prosecutors, crucial questions remain unquantified." Here are excerpts:
After Ferguson, a noticeable gap in criminal-justice statistics emerged: the use of lethal force by the police. The federal government compiles a wealth of data on homicides, burglaries, and arson, but no official, reliable tabulation of civilian deaths by law enforcement exists....
This raises an obvious question: If the FBI can’t tell how many people were killed by law enforcement last year, what other kinds of criminal-justice data are missing? Statistics are more than just numbers: They focus the attention of politicians, drive the allocation of resources, and define the public debate. Public officials — from city councilors to police commanders to district attorneys — are often evaluated based on how these numbers change during their terms in office. But existing statistical measures only capture part of the overall picture, and the problems that go unmeasured are often also unaddressed. What changes could the data that isn’t currently collected produce if it were gathered?
In one sense, searching for these statistical gaps is like fishing blindfolded — how can someone know what they don’t know? But some absences are more obvious than others. Bruce Western, a professor of sociology at Harvard University, cited two major gaps. One is the racial demography of arrests and criminal records....
There may be many missing statistics from the realm of policing, but even greater gaps lie elsewhere. Thanks to the FBI’s Uniform Crime Reports, police departments might actually be one of the better quantified parts of the criminal-justice system. Prisons also provide a wealth of statistics, which researchers have used to help frame mass incarceration in its historical and demographic content. The Justice Department’s Bureau of Justice Statistics maintains an annual report on the size of the U.S. prison population. The report includes state-by-state demographic statistics like inmate ages, races, crimes committed, and other crucial data for researchers and policymakers.
But while current prison statistics give a good sense of the size and scale of mass incarceration, they provide little information on conditions inside the vast constellation of American prisons. Perhaps the most glaring gap is solitary confinement. No one knows exactly how many people are currently kept in isolation in American prisons. “There are estimates, but no official count nationwide,” Western said....
Another major gap in prison statistics is the number of non-sexual assaults behind bars. Although Congress mandated the collection of sexual assault statistics with the Prison Rape Elimination Act in 2002, prisons are not required to report ordinary assaults to the Bureau of Justice Statistics....
Prisons and police departments may be the most visible parts of the criminal-justice system, but they are not necessarily the most powerful. As judges lost flexibility with the growth of mandatory-minimum sentences during the tough-on-crime era, prosecutors became the most pivotal actors within the criminal-justice process. This rise in influence was matched with a decline in transparency. “Up until the late 1980s and early 1990s, we used to collect more data — not a whole lot of data, but more data — on what prosecutors do,” [Professor Marie] Gottschalk explained. “[Now] the police are certainly much more accountable than prosecutors are, in terms of the visibility of what they do and the transparency of what they do.”
One prosecutorial tool with little transparency is plea dealing. In 2013, more than 97 percent of all federal criminal charges that weren’t dismissed or dropped were resolved through plea deals. (State-by-state totals are incomplete or unavailable, but often estimated to be similarly high.) For prosecutors, the benefits are clear: Offenders are punished without expending manpower and resources in lengthy trials. But plea deals are also one of the least-scrutinized parts of the criminal-justice system. “In most cases, that’s a complete black box,” Gottschalk said. “It allows prosecutors to have this enormous power without much transparency to the public.”
In the absence of reliable statistics, anecdotal evidence often fills the void. This is especially true when studying racial bias in the prosecutorial process. Prosecutors are not required by law to compile data on racial disparities. They also have little incentive to gather and publish it voluntarily, partly because of resource constraints and partly because of its potential negative implications.
A small number of offices have sought answers nonetheless, often with troubling results. In 2011, Manhattan District Attorney Cyrus Vance invited the Vera Institute to examine his office’s internal records for evidence of racial disparities. The institute’s final report found that disparities plagued every step of the process. Among its findings: Black and Hispanic defendants were more likely to be offered plea deals on misdemeanors that included imprisonment than white and Asian defendants. Would similar reviews of prosecutors’ offices nationwide produce similar results?...
This data’s absence shapes the public debate over mass incarceration in the same way that silence between notes of music gives rhythm to a song. Imagine debating the economy without knowing the unemployment rate, or climate change without knowing the sea level, or healthcare reform without knowing the number of uninsured Americans. Legislators and policymakers heavily rely on statistics when crafting public policy. Criminal-justice statistics can also influence judicial rulings, including those by the Supreme Court, with implications for the entire legal system.
Beyond their academic and policymaking value, there’s also a certain power to statistics. They have the irreplaceable ability to both clarify social issues and structure the public’s understanding of them. A wealth of data has allowed sociologists, criminologists, and political scientists to diagnose serious problems with the American criminal-justice system over the past twenty years. Now that a growing bipartisan consensus recognizes the problem exists, gathering the right facts and figures could help point the way towards solutions.
Thursday, May 28, 2015
Newt Gingrich and Van Jones lament treatment of mentally ill in US criminal justice system
CNN has this notable new commentary authored by the notable twosome of Newt Gingrich and Van Jones headlined "Mental illness is no crime." Here are excerpts:
Today, mentally ill Americans are disproportionately more likely to be arrested, incarcerated, suffer solitary confinement or rape in prison and commit another crime once released.
Quick: Name the largest provider of mental health care in America. If you guessed "our prisons and jails," you would be right. A 2006 U.S. Department of Justice study found that three out of four female inmates in state prisons, 64% of all people in jail, 56% of all state prison inmates and 45% of people in federal prison have symptoms or a history of mental disorder.
America's approach when the mentally ill commit nonviolent crimes -- locking them up without addressing the problem -- is a solution straight out of the 1800s.
When governments closed state-run psychiatric facilities in the late 1970s, it didn't replace them with community care, and by default, the mentally ill often ended up in jails. There are roughly as many people in Anchorage, Alaska, or Trenton, New Jersey, as there are inmates with severe mental illness in American prisons and jails, according to one 2012 estimate. The estimated number of inmates with mental illness outstrips the number of patients in state psychiatric hospitals by a factor of 10.
Today, in 44 states and the District of Columbia, the largest prison or jail holds more people with serious mental illness than the largest psychiatric hospital. With 2 million people with mental illness booked into jails each year, it is not surprising that the biggest mental health providers in the country are LA County Jail, Rikers Island in New York and Cook County Jail in Chicago.
Our system is unfair to those struggling with mental illness. Cycling them through the criminal justice system, we miss opportunities to link them to treatment that could lead to drastic improvements in their quality of life and our public safety. These people are sick, not bad, and they can be diverted to mental health programs that cost less and are more effective than jail time. People who've committed nonviolent crimes can often set themselves on a better path if they are provided with proper treatment....
A new initiative, "Stepping Up," unites state and local governments and the American Psychiatric Foundation to promote research-based practices to tackle our overreliance on jail as mental health treatment, such as in-jail counseling programs that reduce the chances of repeat offenders.
State and local officials have shown us the way. We've seen large communities such as Miami-Dade County, Florida, completely redesign their systems at every level, training police officers in crisis intervention, instituting careful assessments of new jail admissions and redirecting their mentally ill populations into treatment, effectively reducing the rates of re-arrest....
Perhaps most surprisingly in these partisan times, Republicans and Democrats in Congress are standing shoulder-to-shoulder to support mental health reform. The bipartisan Comprehensive Justice and Mental Health Act, co-sponsored by Sen. Al Franken, D-Minnesota, and Sen. John Cornyn, R-Texas, in the Senate, passed unanimously out of the Senate Judiciary Committee earlier this month. The legislation includes simple measures that would fund alternatives to jail and prison admissions for those in need of treatment and expand training programs for law enforcement personnel on how to respond to people experiencing a mental health crisis.
The notion of bipartisan, comprehensive criminal justice reform is not just idle talk. It is happening. Both sides see practical alternatives to incarceration that can reduce prison populations, improve public safety, save lives and save money. If Congress moves swiftly to pass the great ideas now percolating in the House and Senate, it will become a reality. Take it from a conservative and a liberal: A good place to start is by addressing the needs of our mentally ill citizens in jails and prisons.
Friday, May 22, 2015
"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"
The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:
For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.
I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.
Here is some of what she goes on to say about this very interesting topic:
While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established). There is a trend toward sexual contact with teenage males. Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.
In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.
Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped. Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty. Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.
Of course, I don’t condone this behavior in the least. I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.
Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men. Treatment providers aren’t given special instruction in dealing with women. The treatment programs are written for men, using statistics about male offenders and past treatment models of men. Imagine! Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.
At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders. This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work. But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.
A lack of evidence should never be the reason for poor rehabilitation. It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future. When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon. By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.
Research about recidivism rates is also based primarily on male populations and varies drastically. Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all. But since the law doesn’t differentiate among sex offenders, these studies are nearly useless. A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child. The lumping-together of sex offenses creates confusion even while it feeds public hysteria....
Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment. It does nothing to address the complex emotional choices that led people to their crimes. Rather, the justice system beats down already hurting women.
May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack
Thursday, May 14, 2015
"Is Burglary A Crime Of Violence? An Analysis of National Data 1998-2007"
The title of this post is title of this interesting federally funded empirical research. Here is the abstract:
Traditionally considered an offense committed against the property of another, burglary is nevertheless often regarded as a violent crime. For purposes of statistical description, both the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS) list it as a property crime. But burglary is prosecuted as a violent crime under the federal Armed Career Criminal Act, is sentenced in accord with violent crimes under the United States Sentencing Guidelines, and is regarded as violent in state law depending on varied circumstances. The United States Supreme Court has treated burglary as either violent or non-violent in different cases.
This study explored the circumstances of crimes of burglary and matched them to state and federal laws. Analyzing UCR, NCVS, and the National Incident Based Reporting System (NIBRS) data collections for the ten year period 1998-2007, it became clear that the majority of burglaries do not involve physical violence and scarcely even present the possibility of physical violence. Overall, the incidence of actual violence or threats of violence during burglary ranged from a low of .9% in rural areas based upon NIBRS data, to a high of 7.6% in highly urban areas based upon NCVS data. At most, 2.7% involved actual acts of violence.
A comprehensive content analysis of the provisions of state burglary and habitual offender statutes showed that burglary is often treated as a violent crime instead of prosecuting and punishing it as a property crime while separately charging and punishing for any violent acts that occasionally co-occur with it. Legislative reform of current statutes that do not comport with empirical descriptions of the characteristics of burglaries is contemplated, primarily by requiring at the minimum that the burglary involved an occupied building if it is to be regarded as a serious crime, and preferably requiring that an actual act of violence or threatened violence occurred in order for a burglary to be prosecuted as a violent crime.
Friday, May 08, 2015
"Have Texans lost their taste for capital punishment?"
The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:
I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.
A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.
I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.
In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”
A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.
And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.
Monday, May 04, 2015
Fairer capital fight has Virginia prosecutors fighting for the death penalty less
As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.
UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.
Monday, April 20, 2015
New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences
The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015. Here are links to these two new data runs:
First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)
Final FY14 Quarterly Sentencing Update (Published April 20, 2015)
I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014. Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges.
Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%. In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.
But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update. I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going). But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.
For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data. But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.
Friday, April 17, 2015
US Sentencing Commission releases data report on illegal reentry offenses
Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:
This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases. Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines. In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases. As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.
Part I of this report summarizes the relevant statutory and guideline provisions. Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles. Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases. Part IV presents key findings.
Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.
In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations. The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.
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.