Wednesday, September 26, 2018
Interesting look at data collection and use in prosecutorial decision-making
The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors’ Offices." Here is how it starts and concludes:
Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers. How much data are prosecutors collecting? How are they using data (if at all), and how has that helped decisionmaking? What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data? In early 2018, the Urban Institute surveyed prosecutors’ offices across the country to seek answers to these questions. Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....
Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes. The findings presented here demonstrate that many prosecutors’ offices collect and use data throughout the case decisionmaking process, from screening to sentencing. And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices. Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data. A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so. Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.
The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics. By increasing data collection efforts, and later using that data in decisionmaking, prosecutors’ offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.
Monday, September 24, 2018
US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses
Via email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions. This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage. Here are excepts from the summary:
This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....
Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.
Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....
The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....
Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.
In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....
In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....
The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....
The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.
Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....
Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group. In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).
Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).
Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.
September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)
Thursday, September 13, 2018
"Can We Downsize Our Prisons and Jails Without Compromising Public Safety? Findings from California's Prop 47"
The title of this post is the title of this new article in Criminology & Public Policy authored by Bradley Bartos and Charis Kubrin. Here is its abstract:
Our study represents the first effort to evaluate systematically Proposition 47's (Prop 47's) impact on California's crime rates. With a state‐level panel containing violent and property offenses from 1970 through 2015, we employ a synthetic control group design to approximate California's crime rates had Prop 47 not been enacted. Our findings suggest that Prop 47 had no effect on homicide, rape, aggravated assault, robbery, or burglary. Larceny and motor vehicle thefts, however, seem to have increased moderately after Prop 47, but these results were both sensitive to alternative specifications of our synthetic control group and small enough that placebo testing cannot rule out spuriousness.
As the United States engages in renewed debates regarding the scale and cost of its incarcerated population, California stands at the forefront of criminal justice reform. Although California reduced its prison population by 13,000 through Prop 47, critics argue anecdotally that the measure is responsible for recent crime upticks across the state. We find little empirical support for these claims. Thus, our findings suggest that California can downsize its prisons and jails without compromising public safety.
The authored of this research also have this new commentary in Governing headlined "The Myth That Crime Rises as Prisons Shrink: California's dramatic reduction in its prison populations hasn't compromised public safety." Here is an excerpt:
Approved by the voters in 2014, Prop 47 was controversial from the start. It downgraded the lowest-level non-violent drug and petty-theft crimes from felonies to misdemeanors. Critics warned that the measure would embolden would-be criminals as felony arrests throughout the state plummeted. After Prop 47 went into effect in 2014, lowering prison populations by 13,000, that controversy only escalated. Soon law-enforcement officials were calling for the measure to be repealed. They blamed rising crime rates on Prop 47.
But the science doesn't support the assertion that Prop 47 is to blame. We recently published a study that was the first effort to systematically evaluate Prop 47's impact on crime in California. Our research found that the proposition had no appreciable impact on crime in the year following its enactment.
Monday, September 03, 2018
Noticing latest USSC data on retroactive impact of "drugs -2" guideline amendment
Just before the long weekend, I saw that the US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated August 2018, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 31, 2018, and for which court documentation was received, coded,and edited at the Commission by August 23, 2018."
The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782 (the so-called "drugs -2" guideline amendment) fully retroactive, now 31,381 federal prisoners have had their federal drug prison sentences reduced by an average of 25 month. (Notably, this federal register document reports that the "average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017." This "average cost" number is a very imperfect proxy for the actual prison cost savings from reduced sentences resulting from the retroactive drugs-2 guideline amendment, but it suggests federal taxpayers have saved billions in prison costs thanks to drugs -2 retroactivity.)
Among other impacts, the the drugs -2 amendment and its retroactivity are likely key contributors to a continued decline in the federal prison population. The amendment was in 2014, and its retroactivity became effective in November 2015. In Fiscal Year 2014, the federal prison population clocked in at 214,1495, and in Fiscal Year 2015 the federal prison population was down to 205,723. By Fiscal Year 2016, the federal prison population dropped all the way down to 192,170; by Fiscal Year 2017, the federal prison population was down further to 185,617. As as of August 30, 2018, the federal prison population was at 182,797. (All theses data come from this Bureau of Prisons webpage.) I keep expecting and waiting for the policies and practices of Attorney General Jeff Sessions to turn around this recent steady decline in the federal prison population, but is seems the "drugs -2" guideline amendment, its retroactivity and other forces have keep a downward pressure on the federal prison population for the time being.
Friday, August 17, 2018
New research finds racial bias infects sex-offender classification system under SORNA
A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:
The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review. African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.
Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals. “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.
The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act. The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.” Tier designation is determined by prior offenses and the severity of the charge and conviction....
The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…” Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.
The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:
Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders. This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.
Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system. Implications for communities and the continued use of the SORNA are presented.
Saturday, July 28, 2018
Interesting early information from the Safe Streets & Second Chances effort to take an evidence-driven approach to recidivism
In this post from January, I spotlighted the Safe Streets & Second Chances initiative which describes itself as an "an innovative program that takes an evidence-driven approach to the chronic issues of repeat offenders and recidivism, using academic research to craft individualized reentry plans that shift the ultimate measure of success from whether individuals are punished to whether these individuals are improved, rehabilitated, and capable of redemption." This new Washington Post piece, headlined "Koch network project gears up to help inmates reenter society after prison," provides an interesting update on the project:
A new project funded by the network aligned with billionaire industrialist Charles Koch is tracking and monitoring 1,100 inmates in four states after they are released from prison starting Aug. 1 to help them successfully reintegrate into society.
Through the project, called Safe Streets and Second Chances, a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to their rearrest. The project is in its $4 million pilot phase, as researchers prepare to test the effectiveness of a new reentry model that focuses on individualized plans to help inmates find healthy coping and thinking patterns, the right employment opportunities, and positive social engagement.
For the past six months, the researchers have been interviewing the men and women in the program, who are currently housed in 48 prisons in rural and urban areas in Texas, Florida, Pennsylvania and Kentucky. They will present the early findings today in Colorado, at the twice-annual meeting of the network’s largest donors....
The network is advocating a shift in the criminal justice system toward prioritizing rehabilitation and reducing recidivism, rather than focusing on punishment. For years, the network has pushed for bipartisan support for overhauling the criminal justice system, and has teamed up with Van Jones, a former Obama administration official and CNN political commentator, for the cause....
With the research conducted through Safe Streets and Second Chances, network officials say they want to transform the way reentry programs are run in communities across the country. “What we’re trying to do is to prepare prisoners to reenter society and become productive members and taxpaying citizens, hopefully living productive lives and taking care of their families,” said Doug Deason, a Dallas businessman and Koch network donor who is on the advisory council of Safe Streets and Second Chances.
After interviewing the inmates preparing for release, researchers found these prisoners overwhelmingly felt optimistic about their chances of rehabilitation in life outside prison but generally had high levels of trauma. Nearly 70 percent of people in the program reported seeing someone seriously injured or killed. Half the inmates had seen or handled dead bodies — more than a dozen times for some male prisoners. The majority of them reported having a close friend or family member who was murdered, and 58 percent reported having a drug use disorder.
People with untreated trauma symptoms are more likely to become impulsive and incorrectly perceive threats to themselves and others, which could lead to an act of crime and recidivism, according to Carrie Pettus-Davis, a Florida State University professor and the lead researcher. It also could affect their ability to navigate the laws restricting felons from employment, housing and education opportunities, she said.
“Despite all of the positive orientations and aspirations, this population also is really dealing with some very challenging circumstances,” Pettus-Davis said. “There’s an enormous amount of trauma represented for both men and women. ... Once people become incarcerated, we need to make sure we’re appropriately responding to experiences of psychological trauma.”
Lots of information and data about and from this project can be found in this new release from Safe Streets & Second Chances under the title "New Research Shows Incarcerated Individuals Want to Be Rehabilitated and Are Hungry for Second Chances as They Reenter Society." Here are excerpts (with links from the original):
Incarcerated individuals want to be rehabilitated, are eager for a second chance, and are emotionally capable of successfully reentering society, new independent data shows.
According to statistics compiled by Florida State University (FSU) researchers, both male and female participants said they want to work more, learn more, and spend more time on personal relationships, improving their health, and practicing their faith than they currently do while incarcerated. They also reported fairly high levels of emotional well-being, suggesting that they are primed to successfully rejoin society upon their release....
According to the data, inmates want to rehabilitate themselves through work, education, and faith, and spend more time on personal relationships.
- Respondents expressed a desire to work or improve their work situation.
- Men reported working about two hours a day but said they would like to work almost four times that amount.
- Women reported working almost 1.5 hours per day but said they’d like to work over three times that amount.
- Overall, respondents said they’d like to spend twice the amount of time they currently spend on school activities.
- Both men and women said they want to devote more time to community involvement and spend twice as much time working on personal relationships.
- Both groups said they’d like to spend more time each week on spiritual or religious activities.
Next, while individuals said they had experienced a generally high level of trauma in life, they also reported a fairly high level of emotional well-being.
- Nearly 70 percent of participants said they had seen someone seriously injured or killed.
- 50 percent said they had seen dead bodies (other than at a funeral) or had to handle dead bodies. Male respondents reported experiencing this an average of over 17 times.
- Over 40 percent said they had been attacked with a gun, knife, or some other weapon by someone, including a family member or friend.
- About 57 percent said that a close friend or family member had been murdered.
- Over 32 percent of female respondents said they had been forced to have intercourse or another form of sex against their will.
- On average, females reported having experienced sexual abuse as a child 8.88 times.
- 58 percent reported having a drug use disorder, while 35 percent reported having an alcohol use disorder.
- While both men and women reported similar levels of childhood emotional abuse, they also reported fairly high levels of current emotional well-being, suggesting that they are emotionally resilient and fit to contribute to society in a positive way.
Thursday, July 12, 2018
US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement
The United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements). A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication. Here are highlights from the web account:
This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.
Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing. The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.
Cases in which an 851 enhancement applied are rare.
- The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
- The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief. There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.
The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.
- In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
- There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
- Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn. Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.
The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.
- In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
- Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).
While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.
- Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
- Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
- Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
- The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.
The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.
Monday, July 09, 2018
Lots more great new Quick Facts publications from US Sentencing Commission
In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data. Here are just a few of these publications I have been checking out:
Drug Trafficking (July 2018)
Methamphetamine Trafficking (July 2018)
Heroin Trafficking (July 2018)
Marijuana Trafficking (July 2018)
Section 924(c) Offenders (July 2018)
Felon in Possession of a Firearm (July 2018)
Robbery Offenses (July 2018)
Theft, Property Destruction, & Fraud (June 2018)
There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.
Thursday, July 05, 2018
Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"
I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications. Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."
This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:
Females make up a small percentage of federal offenders. The proportion of federal offenders who were women decreased slightly from 13.3% in fiscal year 2013 to 13.1% in fiscal year 2017.
More than two-thirds of female offenders (68.0%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).
Weapons were involved less frequently (6.1%) in cases involving women than in cases involving men (10.1%).
More than three-quarters (76.9%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2017 (93.8%).
For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (40.2% in fiscal year 2013 and 36.6% in fiscal year 2017), compared to 49.8% and 49.2% for male offenders.
The average sentence imposed slightly increased over the last five years, from 27 months in fiscal year 2013 to 28 months in fiscal year 2017.
"Police, Race, and the Production of Capital Homicides"
The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:
Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.
This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police. It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims. We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place. Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities. Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.
Monday, July 02, 2018
US Sentencing Commission releases mid-FY 2018 sentencing data with re-engineered accounting of departures and variances
US Sentencing Commission has now released here its latest quarterly data report, and this one "contains preliminary quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2018" (which is the period from October 1, 2017, through March 31, 2018). I do not believe the USSC released first quarter FY 2018 data, so this new report seems to be the first big data report of the "post-Sessions Memo era" -- i.e., since AG Jeff Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to pursue those offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences, and to more regularly seek within-guideline sentences.
From a quick glance and comparing this data from the last full year of sentencing data from the Obama Administration (in this FY 2016 data report), there does seem to be a noticeable uptick in mean sentences in some big crime categories. For example (drawing from Table 6 in both data runs): the mean drug trafficking sentence was 75 months in the first half of FY 2018, the mean in FY 2016 was only 66 months; the mean fraud sentence was 27 months in the first half of FY 2018, the mean in FY 2016 was only 25 months. But, interestingly, in other big crime categories there was a downtick in mean sentences: the mean firearm sentence was 70 months in the first half of FY 2018, the mean in FY 2016 was 75 months; the mean immigration sentence was 11 months in the first half of FY 2018, the mean in FY 2016 was 13 months. Putt this all together with other less common offenses, and it turns out the cumulative mean federal sentence for the first half of FY 2018 was 45 months, the exact same mean for all federal sentences in FY 2016.
I would report some similar comparable data on departures and variances, but the USSC in this data run has significant altered how it accounts and reports this data. Here is part of the USSC's explanation of its new accounting:
Beginning with this report, the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances. The former category comprises all cases in which the sentence imposed was within the applicable guideline range or, if outside the range, where the court indicated that one or more of the departure reasons in the Commission’s Guidelines Manual was a basis for the sentence. Variance cases are those where the sentence was outside the guideline range (either above or below) and where the court did not cite any guideline reason for the sentence. Data for important subgroups within these two categories are also reported.
In other words, within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances broken out distinctly. It seems that all the key data previously reported on Table 8 of past USSC's data reports still appears in Table 8A of the new report. But, fascinatingly, the new organization showcases now that roughly 3/4 of all sentences (74.7% to be exact) are "Sentences under the Guidelines Manual" with "variances" now accounting for only 25.3% of the sentences (with 2% being upward variances, 5.5% being "government motion" variances and 17.7% being "non-government" variances).
Repackaging aside, we can still look at the "within-guideline" number on Table 8 and 8A for direct comparisons on this front between the first half of FY 2018 and all federal sentences in FY 2016. Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50% in the first half of FY 2018. Without a more intricate and sophisticated analysis controlling for caseloads and other factors, it is too hard to say there is conclusive evidence that the Sessions Memo is having a real impact on federal sentencing outcome. But these data are suggestive of trends that seem likely to continue as move cases more through the pipeline and as a new set of federal prosecutors give effect to commands from Main Justice.
Wednesday, June 27, 2018
The Sentencing Project effectively reviews "Trends in U.S. Corrections"
The folks at The Sentencing Project late last week published this document, titled "Trends in U.S. Corrections," which serves as an effective fact sheet compiling major developments regarding the scope of imprisonment in the US criminal justice system over the past several decades. The short document has lots of effective graphs reporting on lots of demographic realities of prison populations, and here is a bit of its prose on two particular issues:
Sentencing policies of the War on Drugs era resulted in dramatic growth in incarceration for drug offenses. Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 450,345 in 2016. Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.
At the federal level, people incarcerated on a drug conviction make up just under half the prison population. At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years. Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense....
The number of people serving life sentences continues to grow even while serious, violent crime has been declining for the past 20 years and little public safety benefit has been demonstrated to correlate with increasingly lengthy sentences. The lifer population has nearly quintupled since 1984. One in nine people in prison is now serving a life sentence and nearly a third of lifers have been sentenced to life without parole.
Monday, May 28, 2018
Another helpful review of analysis of huge set of federal sentencing outcomes
In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions." I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column. His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts:
Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants. “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”...
It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.
But the study’s findings on how judges’ partisan affiliations affected the racial and gender gaps were new and startling. “The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote. “We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap.”
The two kinds of gaps appear to have slightly different explanations. “We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses,” the study said. “We also find that racial disparities by political affiliation are largely driven by drug offenses.”
The authors of the study sounded a note of caution. “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right,’” the authors wrote. “Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court.”
The study is studded with fascinating tidbits. Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently. Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.
Prior related post:
- Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background
Thursday, May 24, 2018
Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background
This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for. In other words, just the scope and methods of this research is fascinating.
Moreover and more importantly, there is great richness in the findings of the full paper. For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation." In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range. Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds." Here are excerpts:
Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School. That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....
They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones. They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.
Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants. Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.
Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage. These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.
Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women. “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.
Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.
If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.
UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.
May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)
Wednesday, May 23, 2018
Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics
The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005. This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:
Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.
About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.
This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned. The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states. This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology). In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.
There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.
As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.
Sunday, May 20, 2018
Vera Institute of Justice reports on "People in Prison 2017"
Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:
Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States. This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.
At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).
There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline). The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.) This brings the rate of prison incarceration down 14 percent since its peak in 2007.
The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland. However, the declines were not universal. Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee. (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)
In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.
Thursday, May 17, 2018
US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"
As reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:
The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.
While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender’s criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.
Key findings of the Commission’s study are as follows:
Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.
Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.
A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.
The nature of offenders’ criminal histories varied considerably by their federal instant offense. The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders. Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction. Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).
Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines. Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.
A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.
Wednesday, May 02, 2018
Interesting statistics in BJS statistical brief "Capital Punishment, 2016"
Earlier this week, the Justice Department's Bureau of Justice Statistics released this short new publication titled simply "Capital Punishment, 2016." The paper presents statistics on persons under sentence of death in the United States as of year-end 2016. Though already a bit dated, the publication is still an interesting accounting of summary trends in the death row population, including admissions to and releases from death row. Here are a few highlights from the publication's list of highlights:
At year-end 2016, a total of 32 states and the Federal Bureau of Prisons (BOP) held 2,814 prisoners under sentence of death, which was 58 (2%) fewer than at year-end 2015.
California (26%), Florida (14%), and Texas (9%) held nearly half (49%) of the nation’s prisoners under sentence of death at year-end 2016; in 2016, Texas executed seven prisoners, Florida executed one, and California did not execute any prisoners.
In 2016, the number of prisoners under sentence of death decreased for the sixteenth consecutive year.
Twelve states received a total of 32 prisoners under sentence of death in 2016....
Of the 20 prisoners executed, 18 were white (2 of Hispanic origin) and 2 were black.
Seventeen states and the BOP removed 70 prisoners from under sentence of death by means other than execution....
Among prisoners under sentence of death at year-end 2016, a total of 55% were white and 42% were black.
At year-end 2016, among the 2,553 prisoners under sentence of death whose ethnic origin was known, a total of 378 prisoners (15%) were Hispanic.
Ninety-eight percent of prisoners under sentence of death were male.
Thursday, April 26, 2018
Bureau of Justice Statistics reports 2016 declines in number incarcerated and subject to community supervision in United States
This press release from the Bureau of Justice Statistics reports on the notable data appearing in two notable new BJS publications:
The number of adults supervised by the U.S. correctional system dropped for the ninth consecutive year in 2016. The correctional population includes persons supervised in the community on probation or parole and those incarcerated in prisons or local jails. This report from the Bureau of Justice Statistics is the latest official snapshot of the state of the U.S. correctional population.
From 2007 to 2016, the proportion of the adult population under the supervision of U.S. correctional authorities decreased by 18 percent, from 3,210 to 2,640 adults under correctional supervision per 100,000 residents. The number of adults under correctional supervision per 100,000 U.S. adult residents was lower in 2016 (2,640) than at any time since 1993 (2,550). Overall, about 1 in 38 adults were under some form of correctional supervision at year-end 2016.
An estimated 6,613,500 persons were under correctional supervision on December 31, 2016, about 62,700 fewer persons than on January 1. The total correctional population declined 0.9 percent during 2016 due to decreases in both the community supervision population (down 1.1 percent) and the incarcerated population (down 0.5 percent).
The incarcerated population decreased from 2,172,800 in 2015 to 2,162,400 in 2016. All of the decrease in the incarcerated population was due to a decline in the prison population (down 21,200), while the jail population remained relatively stable. The number of persons held in prison or local jail per 100,000 U.S. adult residents (incarceration rate) has declined since 2009 and is currently at its lowest rate (860 per 100,00 in 2016) since 1996 (830 per 100,000).
During 2016, the community supervision population fell from 4,586,900 on January 1 to 4,537,100 at year-end. All of the decrease in the community supervision population in 2016 was due to a decline in the probation population (down 52,500). The parole population increased 0.5 percent in 2016 (up 4,300 persons). More than two-thirds (69 percent) of the correctional population were supervised in the community at year-end 2016, similar to the percentage observed in 2007.
These data and a whole lot more appear in these two new BJS publications:
UPDATE: Keith Humphryes has here his typically sharp WonkBlog commentary here focused on these new data under the headline "The U.S. prisoner population continued to shrink in 2016, new data show." Here concludes this way (with links from the original):
A smaller correctional population is a dividend of lower crime rates combined with a national wave of sentencing and rehabilitation reforms at the state level. Because the current generation of adolescents and adults is committing significantly less crime than did prior generations at their age, there will be ample opportunity to shrink the correctional system even further in the coming years.
Saturday, April 07, 2018
"Capital Punishment Decisions in Pennsylvania: 2000-2010: Implications for Racial, Ethnic and Other Disparate Impacts"
The title of this post is the title of this notable empirical paper recently posted to SSRN and authored by John Kramer, Jeffery Todd Ulmer and Gary Zajac. Here is its abstract:
A study of disparity in the administration of the death penalty in Pennsylvania by Kramer, Ulmer, and Zajac (2017) was recently completed for the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness. This study collected basic statistical data on 4,274 cases charged with homicide in Pennsylvania from 2000 to 2010, and then collected highly detailed data from courts and prosecutors’ offices on a subset of 880 first degree murder convictions in 18 counties accounting for more than 87% of all 2000-2010 first degree murder convictions. Utilizing propensity score methods in analyses of these first degree murder convictions, the study examined whether defendants’ and victims’ race/ethnicity (separately and in combination), predicted: 1) prosecutors’ decisions to seek the death penalty, 2) prosecutors’ decisions to retract a motion to seek the death penalty once it is filed, and 3) court decisions to sentence defendants to death or life without parole.
Key findings were: 1) No pattern of disparity was found to the disadvantage of Black or Hispanic defendants in prosecutors’ decisions to seek and, if sought, to retract the death penalty. 2) Black and Hispanic defendants were not disadvantaged in death penalty sentence decisions relative to White defendants. 3) Cases with White victims, regardless of race of defendant, were 8% more likely to receive the death penalty, while Black victim cases were 6% less likely to receive the death penalty. 4) Prosecutors filed to seek the death penalty in 36% of first degree convictions; but later retracted that filing in 46% of those cases. Moreover, a predominant pattern emerged in which a death penalty filing strongly predicted a guilty plea in these murder cases, and pleading guilty strongly predicted the retraction of the death penalty filing. 5) There were very large differences between counties in the likelihood of prosecutors filing to seek the death penalty, the likelihood of their retracting that filing, and in courts imposing the death penalty. In fact, the biggest extra-legal influence on whether defendants faced or received the death penalty was where their cases were handled. 6) Public defenders were less likely than private or court appointed attorneys to have the death penalty filed in cases they represented. However, public defender cases were more likely to receive the death penalty, and defendants represented by private attorneys were especially unlikely to receive the death penalty. These defense attorney differences also, in turn, varied greatly between counties.
Wednesday, March 28, 2018
"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"
The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.
In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.
The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".
Key findings of the Commission’s study are as follows:
The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.
Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.
Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.
March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)
Thursday, March 22, 2018
Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:
The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted. Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.
As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts. For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.
The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions. In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA. (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA. And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)
As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill. Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time. In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA. Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon. But, sadly, given an array of problematic personalities and politics, I am not optimistic.
A few prior related posts:
- Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?
- Sentencing Reform and Corrections Act of 2017 now has 20 sponsors in the Senate but...
- Mapping the politics and making the case against the Sentencing Reform and Corrections Act of 2017
- AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"
- Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote!
- Trump White House expresses opposition to sentencing reform part of SRCA of 2017
- Senator Grassley talking up Senate vote on his SRCA bill along with any prison reform bill lacking sentencing reforms
March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)
Tuesday, March 20, 2018
"Gender Disparities in Plea Bargaining"
The title of this post is the title of this notable new article now available via SSRN authored by Carlos Berdejó. Here is the abstract:
Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this article reveal significant gender disparities in this stage of the criminal justice system.
Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced. These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating gender disparities. While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment. These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.
Building upon these results and the existing literature documenting racial disparities in criminal case outcomes, the article explores the intersection of gender and race in determining disparities in the plea-bargaining process. The results indicate that gender and racial disparities complement each other in a way that yields additive effects. The charge reduction rate for white female defendants is more than double that of black male defendants. White male and black female defendants experience similar charge reduction rates, in-between those of white female and black male defendants. Consistent with the pattern of gender disparities documented in the article, these inter-group disparities are greater in cases involving misdemeanor offenses and defendants with no prior convictions.
Prior related post:
Saturday, March 17, 2018
"Mass Incarceration: The Whole Pie 2018"
Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.
This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.
This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.
While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.
With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....
While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.
Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....
[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:
- What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
- Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
- Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
- Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?
Thursday, March 15, 2018
"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"
The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:
This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....
Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:
Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.
- In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
- Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
- As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.
Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.
- While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
- The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).
In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.
- The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
- Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
- Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).
Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.
- The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
- The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
- Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.
- Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
- However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
- Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.
Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.
- Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
- The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
- Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
- Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders.
Wednesday, March 07, 2018
"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"
The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:
The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014. In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences. The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis. Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option. Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states. This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.
Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences. This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions. But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:
• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)
• Did sentencers become more reluctant to return death sentences? (no)
• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)
• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)
• Did robbery during a murder became a less powerful aggravator? (yes)
• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)
• Did death sentences become less common in multiple perpetrator cases? (yes)
• Did low population counties increasingly drop out of death sentencing? (yes)
• Did low revenue counties increasingly drop out of death sentencing? (no) and
• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)
Tuesday, March 06, 2018
US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics
The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.
The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.
The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.
I fear I won't be able to find all the time I would like to churn over all the notable data in these reports. But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):
The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017. To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings. Select highlights from FY 2017 data are outlined below:
In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.
The race of federal offenders remained largely unchanged from prior years. In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race. Non-U.S. citizens accounted for 40.7 percent of all offenders.
Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.
Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.
Drug sentences remained relatively stable across all drug types in fiscal year 2017. The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.
Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government. Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016. In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.
Wednesday, February 14, 2018
"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"
The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007. Here is part of the report's abstract:
Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record. Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management. Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts. This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....
Results: Results were mixed across sites. One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group. In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison). Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group. Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups). Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.
Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions. In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high). In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria). It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.
This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.
February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)
Wednesday, February 07, 2018
"Event dependence in U.S. executions"
The title of this post is the title of this new empirical paper authored by Frank Baumgartner, Janet M. Box-Steffensmeier and Benjamin Campbell. Here is the abstract:
Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties. The number of executions across counties appears to fit a stretched distribution. These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event. To examine these processes, we employ two-pronged empirical strategy. First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model.
Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing. Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently. This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.
Thursday, February 01, 2018
"Mass Incarceration: New Jim Crow, Class War, or Both?"
The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:
Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration. My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison. After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....
This study takes a careful account of class and how it relates to race and incarceration rates. Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders. The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable. The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.
To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race. It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways. For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education. These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.
On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.
February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)
Wednesday, January 17, 2018
Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data
I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017. Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department. Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.
I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)
USSC FY Total Sentences (mean in month) Drug Trafficking Sentences (mean in month) Immigration Sentences (mean in month)
2009 81,347 (47 months) 23,931 (78 months) 25,924 (17 months)
2013 80,035 (45 months) 22,354 (72 months) 24,972 (16 months)
2016 67,740 (44 months) 19,231 (66 months) 20,052 (13 months)
2017 66,409 (45 months) 18,980 (70 months) 20,333 (12 months)
One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics. Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post).
Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.
Wednesday, January 10, 2018
BJS releases "Prisoners in 2016" reporting another drop in state and federal prison populations in 2016
As reported in this press release, the "number of prisoners in state and federal correctional facilities fell by 1 percent from year-end 2015 to 2016, the Bureau of Justice Statistics announced today. This was the third consecutive year that the U.S. prison population declined." here is more from the release:
State and federal prisons held an estimated 1,505,400 prisoners in 2016, 21,200 fewer than in 2015. The population of the Federal Bureau of Prisons (BOP) accounted for more than a third (34 percent) of the total change in the prison population, dropping by 7,300 prisoners, from 196,500 to 189,200 prisoners. Although the overall prison population decreased, the number of prisoners held in private facilities increased 2 percent in 2016
State and federal prisons admitted 2,300 fewer prisoners in 2016 than in 2015. The BOP accounted for the majority (96 percent) of the decline, down 2,200 admissions.
More than half (54 percent) of state prisoners were serving sentences for violent offenses at year-end 2015, the most recent year for which data were available. Nearly half (47 percent) of federal prisoners had been sentenced for drug offenses as of Sept. 30, 2016, the most recent date for which federal offense data were available. More than 99 percent of those drug sentences were for trafficking.
In 2016, the rate at which people were sentenced to more than one year in state or federal prison (imprisonment rate) was the lowest since 1997. There were 450 prisoners per 100,000 U.S. residents held in state and federal prisons in 2016, compared to 444 prisoners per 100,000 in 1997.
The imprisonment rate decreased for non-Hispanic adult black, non-Hispanic adult white and adult Hispanic prisoners from 2015 to 2016. The rate of imprisonment decreased 4 percent for black adults (from 1,670 to 1,608 per 100,000), 2 percent for white adults (from 281 to 274 per 100,000) and 1 percent for adult Hispanic prisoners (from 862 to 856 per 100,000).
During the decade between 2006 and 2016, the rate of imprisonment decreased 29 percent for black adults, 15 percent for white adults and 20 percent for Hispanic adults.
The full 36-page BJS report, excitingly titled Prisoners in 2016 and full of data of all sorts, is available at this link.
Sunday, January 07, 2018
Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies
Over at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump." Here are excerpts (with a few lines emphasized for some follow-up commentary):
When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.
Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.
Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.
Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.
Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.
The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.
Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices. For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002. And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period. And, of course, crimes rates started ticking up significantly in 2015 and 2016.
Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses. Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years. The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates. But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution. Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.
What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes. For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014. These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners. In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing. According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing. And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).
In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population. Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons. (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.) And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."
I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population. But other directions coming from Main Justice might complicate this story. AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases. But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas. I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.
January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)
Wednesday, January 03, 2018
Detailing increase in felony convictions nationwide in modern times
Stateline has this new piece, headlined "Felony Conviction Rates Have Risen Sharply, But Unevenly," with detailed data on how increases in the number of felony convictions has come to define the modern criminal justice era in the United States. Here are some details:
In recent decades, every state has seen a dramatic increase in the share of its population convicted of a felony, leaving more people facing hurdles in finding a job and a place to live and prompting some states to revisit how they classify crimes.
In Georgia, 15 percent of the adult population was a felon in 2010, up from around 4 percent in 1980. The rate was above 10 percent in Florida, Indiana, Louisiana and Texas. Less than 5 percent of the population in Maine, Nebraska, New Hampshire, New York, Utah and West Virginia were felons, but every state had a large increase between 1980 and 2010, when the felony population ranged from 1 to 5 percent, according to a University of Georgia study published in October....
Proponents of more lenient sentencing tend to focus on imprisonment, where Louisiana and Oklahoma have the highest rates, but probation is more common. There were 1.9 million people on felony probation in 2015, compared to 1.5 million in prison. In 2010, the two figures were about the same, at 1.6 million, according to the latest federal statistics.
Many view probation as a more humane alternative to imprisonment, said Michelle Phelps, an assistant professor of sociology at the University of Minnesota. But in some states probation has become a “net widener” that draws more nonviolent criminals into the stigma and harsh supervision of a felony conviction.
Phelps pointed to Minnesota, which has one of the lowest rates of imprisonment, but ranked 16th for felon population in 2010. That year felons were about 9 percent of Minnesota’s population, or nearly quadruple the rate in 1980. “Though it’s frequently dismissed as a slap on the wrist, probation can entail onerous requirements,” Phelps said. For instance, probation can require a job and good housing as a condition for staying out of prison, but the felony conviction itself can make it hard or impossible to get that job.
Gary Mohr, who heads Ohio’s Department of Rehabilitation and Correction, said a felony conviction can have lifelong consequences, no matter whether the punishment is imprisonment or probation. “Even probation or a six-month sentence is really a life sentence because it affects jobs, it affects housing, it affects everything in their lives,” Mohr said....
The findings may help put probation reform on the front burner in some states. In Georgia, a February 2017 report by a state commission called for shorter probation sentences and lighter caseloads for probation officers. (The Pew Charitable Trusts, which also funds Stateline, assisted with the paper.) Almost 3 percent of Georgia’s adult population was on felony probation as of 2015 — far more than any other state and a 12 percent increase from 2010, according to the latest federal figures from the Bureau of Justice Statistics....
When crime rates rose in the 1980s and early 1990s, local and state leaders hired more police and they made more arrests, including felony arrests, Phelps said. In addition, many states elevated nonviolent crimes like drug possession to felony status, and many district attorneys adopted a get-tough strategy, seeking felony charges whenever possible. Police focused drug enforcement on high-crime neighborhoods, which were often predominantly African-American, Phelps said. As a result, felony convictions rose much faster among blacks than among whites.
In 2010, about 23 percent of the black population had a felony conviction. The number of African-American felons increased more than fivefold between 1980 and 2010, while the number increased threefold for other felons. The University of Georgia study did not calculate separate rates for Hispanics or other minority groups.
In left-leaning states such as Massachusetts, Minnesota and Oregon, one contributor to the growing share of the population with a felony conviction was an increased awareness of new crimes like domestic violence, sexual abuse and animal abuse, said Josh Marquis, a district attorney in Oregon and a 20-year board member of the National District Attorneys Association.
When crime is a major concern in a community, elected district attorneys are especially sensitive to public pressure to file more felony charges, Marquis said. “We are not rewarded for the number of felonies filed,” Marquis said. “But we do face election and accountability to our neighbors who are also our bosses.”
Friday, December 15, 2017
Looking at the changing demographics of modern mass incarceration
The Marshall Project has this notable new piece headlined "A Mass Incarceration Mystery: Why are black imprisonment rates going down? Four theories." Here is the start of the extended analysis along with the basics of the propounded "four theories":
One of the most damning features of the U.S. criminal justice system is its vast racial inequity. Black people in this country are imprisoned at more than 5 times the rate of whites; one in 10 black children has a parent behind bars, compared with about one in 60 white kids, according to the Stanford Center on Poverty & Inequality. The crisis has persisted for so long that it has nearly become an accepted norm.
So it may come as a surprise to learn that for the last 15 years, racial disparities in the American prison system have actually been on the decline, according to a Marshall Project analysis of yearly reports by the federal Bureau of Justice Statistics and the FBI’s Uniform Crime Reporting system. Between 2000 and 2015, the imprisonment rate of black men dropped by more than 24 percent. At the same time, the white male rate increased slightly, the BJS numbers indicate.
Among women, the trend is even more dramatic. From 2000 to 2015, the black female imprisonment rate dropped by nearly 50 percent; during the same period, the white female rate shot upward by 53 percent. As the nonprofit Sentencing Project has pointed out, the racial disparity between black and white women’s incarceration was once 6 to 1. Now it’s 2 to 1.
Similar patterns appear to hold for local jails, although the data are less reliable given the “churn” of inmates into and out of those facilities. Since 2000, the total number of black people in local detention has decreased from 256,300 to 243,400, according to BJS; meanwhile, the number of whites rose from 260,500 to 335,100. The charts below from the Vera Institute of Justicealso reveal significant drops in the jailing of blacks from New York to Los Angeles, coinciding with little change for whites. (In both the prison and jail data, the total number of incarcerated Latinos has increased, but their actual incarceration rate has remained steady or also fallen, attributable to their increasing numbers in the U.S. population generally.)
Taken together, these statistics change the narrative of mass incarceration, and that may be one reason why the data has been widely overlooked in policy debates. The narrowing of the gap between white and black incarceration rates is “definitely optimistic news," said John Pfaff, a law professor at Fordham University and an expert on trends in prison statistics. "But the racial disparity remains so vast that it’s pretty hard to celebrate. How exactly do you talk about ‘less horrific?'”
According to Pfaff, “Our inability to explain it suggests how poorly we understand the mechanics behind incarceration in general.” In other words, how much of any shift in the imprisonment rate can be attributed to changes in demographics, crime rates, policing, prosecutors, sentencing laws and jail admissions versus lengths of stay? And is it even possible to know, empirically, whether specific reforms, such as implicit bias training, are having an effect on the trend line?....
[H]ere are four (not mutually exclusive or exhaustive) theories, compiled from our research and interviews with prison system experts, to explain the nearly two-decades-long narrowing of the racial gap in incarceration.
1) Crime, arrests and incarceration are declining overall....
2) The war on drugs has shifted its focus from crack and marijuana to meth and opioids....
3) White people have also faced declining socioeconomic prospects, leading to more criminal justice involvement....
4) Criminal justice reform has been happening in cities, where more black people live, but not in rural areas....
Even with all of these factors at work, the racial inequity of the American prison system remains vast and continues to wreak devastation on black and Latino communities nationwide. At the current rate, the disparities would not fully disappear for many decades.
I think a lot of other possible factors may be at least marginally contributing to the changing demographics of prison populations between 2000 and 2015, factors ranging from more diversity in the ranks of police, prosecutors and the judiciary to greater concerns with sentencing decision-making (and advocacy) by courts (and lawyers). And perhaps readers have some additional (sensible?) theories on this front that could be shared in the comments.
Thursday, December 14, 2017
DPIC releases 2017 year-end report noting "second lowest" executions and death sentences in a quarter century
This press release from the Death Penalty Information Center, titled "U.S. Sees Second Fewest Death Sentences and Executions in 25 Years," provides a summary of the DPIC's 2017 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:
Executions and death sentences remained near historically low levels in 2017, as public support for the death penalty fell to its lowest level in 45 years, according to a report released today by the Death Penalty Information Center (DPIC). Eight states carried out 23 executions, half the number of seven years ago, and the second lowest total since 1991. Only the 20 executions in 2016 were lower. Fourteen states and the federal government are projected to impose 39 new death sentences in 2017, the second lowest annual total since the U.S. Supreme Court declared the death penalty unconstitutional in 1972. It was the seventh year in a row that fewer than 100 death sentences were imposed nationwide.
“Perhaps more than any place else, the changes in Harris County, Texas are symbolic of the long-term change in capital punishment in the United States. For the first time since 1974, the county that has carried out more executions than any other did not execute any prisoner or sentence any defendant to death,” said Robert Dunham, DPIC’s Executive Director.
“Across the political spectrum, more people are coming to the view that there are better ways to keep us safe than executing a handful of offenders selected from a random death-penalty lottery. There will be times when numbers fluctuate — particularly following historic highs or lows – but the steady long-term decline in the death penalty since the 1990s suggests that in most of the country, the death penalty is becoming obsolete,” Dunham said. DPIC provides information and analysis and tracks data on the death penalty, but does not take a position for or against capital punishment.
The new death sentences imposed in 2017 highlight the increasing geographic isolation and arbitrary nature of the death penalty, Dunham said. “By themselves, three outlier counties — Riverside, CA; Clark, NV; and Maricopa, AZ — were responsible for more than 30% of all the death sentences imposed nationwide. The other 3,140 counties and parishes imposed fewer new death sentences than even last year’s record low.” Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. It was the second time in three years that Riverside sentenced more people to death than any other county.
States scheduled 81 executions in 2017, but 58 of them — more than 70 percent — were never carried out. Nearly 75 percent of executions took place in four states: Texas (7); Arkansas (4); Florida (3); and Alabama (3). But Texas’s state courts stayed seven other executions using new laws to permit those prisoners to obtain judicial review of false or misleading evidence, and its execution total tied 2016 for the fewest conducted by the state since 1996.
Saturday, December 09, 2017
"Make or Buy? The Provision of Indigent Defense Services in the U.S"
I blogged here in August 2016 about an interesting draft paper authored by Yotam Shem-Tov then titled "Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems." The draft sought to empirically examine different outcomes for defendants assigned different types of counsel. The authored of that draft emailed me today to report that the paper is now "much more complete" compared to the prior noted draft. The revised paper, available here via SSRN, is now going by the title that is the title of this post, and here is the new abstract:
U.S. courts provide constitutionally mandated legal services to indigent defendants via private court-appointed attorneys and public defenders' organizations. I investigate the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned either a public defender or a private court-appointed attorney within the same case. Using data from San Francisco and federal district courts, I argue and show empirically that in multiple defendant cases public defender assignment is as good as random. Estimates show that public defenders reduce the probability of any prison sentence by 22%, as well as the length of prison by 10%.
Interestingly, as noted in a prior post, the early draft's abstract indicated a finding that "defendants assigned a public defender in co-defendant cases had slightly worse outcomes." But then, as blogged here in January 2017, the author can to the inverse conclusion after checking his data and receiving feedback about his draft analysis. And now it seems that, after finalizing the numbers, the author has seemingly concluded once-and-for-all that his data show that public defendants generally producing better outcomes than private court-appointed attorneys.
Prior related posts:
- "Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems"
- A revised empirical look at outcomes achieved by federal public defenders and court-appointed attorneys
Thursday, December 07, 2017
"The Effects of Aging on Recidivism Among Federal Offenders"
The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...
Older offenders were substantially less likely than younger offenders to recidivate following release. Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release. The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.
For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge. By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.
Age and criminal history exerted a strong influence on recidivism. For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older. For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.
Education level influenced recidivism across almost all categories. For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%). Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).
Age exerted a strong influence on recidivism across all sentence length categories. Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed. In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.
For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups. For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders. For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud). Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).
At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics. For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners. Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.
Wednesday, November 29, 2017
Might we soon see Top 10 rankings of state criminal justice systems emerging from the Bureau of Justice Statistics?
The question in the title of this post is my slightly tongue-in-cheek reaction to the news reported here by The Crime Report:
President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. He’s Jeffrey H. Anderson, a former senior fellow at the conservative Hudson Institute who is described by the White House as a “constitutional scholar” and a “leader in formulating domestic policy proposals.”...
This year, the Trump administration named him to direct the Office of Health Reform at the U.S. Department of Health and Human Services, where the White House said he led efforts “to reduce insurance premiums, regulatory burdens, and opioid abuse.”
The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.
The Crime Report article goes on to explain why this really is not a laughing matter:
BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.
In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, [be given] “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”
The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.
Anderson does not appear to have any of those qualifications.
The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.” The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”
“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”
As of this writing, the current Anderson and Hester Computer Rankings has Wisconsin ranked #1, University of Central Florida #2, Clemson #3, Georgia #4 and Alabama #5. What this might portend fore the future of the Bureau of Justice Statistics is anyone's guess?
Tuesday, November 14, 2017
US Sentencing Commission releases new report on "Demographic Differences in Sentencing"
Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:
For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes. These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.
The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report. This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication. Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....
Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:
1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.
2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.
3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.
4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.
These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.
Wednesday, October 25, 2017
US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"
Via email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system. This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:
Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report. Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.
Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses. As part of this analysis, the Commission makes the 10 key findings:
1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.
2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.
3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.
4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.
5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.
6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.
7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.
8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.
9. There were significant demographic shifts in the data relating to mandatory minimum penalties.
10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.
Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue. I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.
October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)
Monday, October 23, 2017
New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation
This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State. Here are the details as reported by the AP:
A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black. The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent. When the victim is black, the chances are 6 percent lower.
“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.
Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.
The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...
Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic. Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.
In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.
Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.
Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths." Here is how it starts:
A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.
“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”
The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”
October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)
Friday, October 20, 2017
"State Criminal Appeals Revealed"
The title of this post is the title of this interesting new empirical paper available via SSRN and authored by Michael Heise, Nancy King and Nicole Heise. Here is the abstract
Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.
We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes.
Our findings imply that defense appellate success rates may have declined in recent decades. In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others. Also notable is the absence of a relationship between defense success and factors including most crime types and claims raised, the court’s workload, and, for all but one model, whether the appellate judges were selected by election.
Thursday, October 19, 2017
"Women’s Mass Incarceration: The Whole Pie 2017"
The title of this post is the title of this great new report authored by Aleks Kajstura and released by the Prison Policy Initiative jointly with the ACLU’s Campaign for Smart Justice. In the tradition of other great "whole pie" efforts (see, e.g., here), this latest report details the number of women who are locked up by various correctional systems and why. Here is part of the text of the report:
With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.
This report provides a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control. Since 2014, the Prison Policy Initiative has quantified the number of people incarcerated in the United States, and calculated the breakdown of people held by each correctional system by offense in an annual Whole Pie: Mass Incarceration report. This report, done in collaboration with the ACLU’s Campaign for Smart Justice, finally provides similar data on women incarcerated in the Unites States....
In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are nearly evenly split between state prisons and local jails.
The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger picture of men’s incarceration. The disaggregated numbers presented here are an important first step to ensuring that women are not left behind in the effort to end mass incarceration.
A staggering number of women who are incarcerated are not even convicted: more than a quarter of women who are behind bars have not yet had a trial. Moreover, 60% of women in jail have not been convicted of a crime and are awaiting trial.
Avoiding pre-trial incarceration is uniquely challenging for women. The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk. The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail. A previous study found that women who could not make bail had an annual median income of just $11,071. And among those women, Black women had a median annual income of only $9,083 (just 20% that of a white non-incarcerated man). When the typical $10,000 bail amounts to a full year’s income, it’s no wonder that women are stuck in jail awaiting trial.
Even once convicted, the system funnels women into jails: About a quarter of convicted incarcerated women are held in jails, compared to about 10% of all people incarcerated with a conviction.
So what does it mean that large numbers of women are held in jail - for them, and for their families? While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do. Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted - some jails don’t even allow real letters, limiting mail to postcards. This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children. Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women. Women in jails are also more likely to suffer from mental health problems and experience serious psychological distress than either women in prisons or men in either correctional setting.
The numbers revealed by this report enable a national conversation about the policies that impact incarcerated women held in various facilities, and also serve as the foundation for discussions to change the policies that lead to incarcerating women in the first place. All too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses. While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses, including violent offenses that account for roughly a quarter of all incarcerated women, must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on choices that can lead to impactful policy changes.
Monday, October 16, 2017
"Racial Disparity in U.S. Imprisonment Across States and over Time"
The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto. Here is the abstract:
The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014. This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.
For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic. Many states experienced a downturn in the black-white ratio starting in the 1990s. Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.
Sunday, September 10, 2017
Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?
The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission. These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017." The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.
Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year. So, it can be a mistake to see trends or assert causal links based on just a little bit of data. Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence. That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences. But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.
Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo. But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.
Tuesday, September 05, 2017
US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative
I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:
This report analyzes the sentence commutations granted under the 2014 Clemency Initiative. It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated. It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations. It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative. Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.
The key findings of this report are:
President Obama made 1,928 grants of clemency during his presidency. Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.
Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.
The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.
Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.
On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors. Of them, 54 (5.3%) received clemency from President Obama.
By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.
Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)
These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:
A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense. This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....
Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty. Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer. Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.
In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.
September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)
Wednesday, August 09, 2017
Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission
In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses" (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.") Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:
The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.
Sunday, July 30, 2017
Should an uptick in federal gun prosecutions garner bipartisan praise?
The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo." Here is the full text of the press release:
Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)
Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).
“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions. “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers. Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent. That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable. I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”
In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety. The Task Force has provided Sessions with recommendations on a rolling basis. In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.
In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016. The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.
Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924. EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes. That would be the most federal firearms cases since 2005. It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.
Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.
Thursday, July 27, 2017
Helpful summary of USSC's recent overview of mandatory minimums in federal system
As reported in this prior post, the US Sentencing Commission earlier this month released a lengthy new publication titled "An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System" reviewing the use of federal mandatory minimum penalties and their impact on the federal prison population. Now the USSC has released this two-page publication with the big report's highlights. Here are highlights of these highlights:
More than one-fifth of federal offenders sentenced in fical year 2016 (21.9%) were convicted of an offense carrying a mandatory minimum penalty. Their average sentence was 110 months of imprisonment, nearly four times the average sentence for offenders whose offense did not carry a mandatory minimum.
Mandatory minimum penalties continue to significantly impact the size and composition of the federal prison population. Slightly more than half (55.7%; N=92,870) of federal inmates in custody were convicted of an offense carrying a mandatory minimum penalty.
In fiscal year 2016, offenders were less likely to receive relief from a mandatory minimum penalty at sentencing (38.7% compared to 46.7% in fiscal year 2010). This decrease is primarily the result of fewer offenders qualifying for the statutory safety valve because of their criminal history and the presence of other disqualifying aggravating factors in their case.