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.

April 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, March 28, 2018

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

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.

Key Findings

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:

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:

March 20, 2018 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

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?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

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. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

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)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, March 06, 2018

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

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.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

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.

February 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (3)

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.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

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.

January 10, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 07, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver 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.”

January 3, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

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.

December 15, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Thursday, December 14, 2017

DPIC releases 2017 year-end report noting "second lowest" executions and death sentences in a quarter century

SentencingTrendsThis 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.

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

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:

December 9, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, December 07, 2017

"The Effects of Aging on Recidivism Among Federal Offenders"

The title of this post is the title of this notable new report released today by the US Sentencing Commission. Here is how the USSC describes the report and its highlights on this webpage:

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)...

Report Highlights

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.

December 7, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (2)

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?

November 29, 2017 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Who Sentences? | Permalink | Comments (2)

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....

Key Findings

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.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia 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:

Summary

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.

Key Findings

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. 

October 20, 2017 in Detailed sentencing data, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 19, 2017

"Women’s Mass Incarceration: The Whole Pie 2017"

Women_pie_2017The 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.

October 19, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

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.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

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.

September 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

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:

Report Summary

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.

Key Findings

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.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

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:

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.

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.)

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.

July 30, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Who Sentences? | Permalink | Comments (9)

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:

July 27, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Thursday, July 20, 2017

"The Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases"

The title of this post is the title of this interesting empirical paper authored by Stephanie Holmes Didwania that was recently posted on SSRN. Here is the abstract:

This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence — when one is charged — by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence.

To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.

July 20, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, July 13, 2017

Urban Institute releases "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons"

Logo-simpleThis morning the Urban Institute released online here a big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." As explained in an email I received, this "online feature examines the causes and consequences of rising time served in America’s prisons [t]hrough visualizations, analysis of trends and demographics, and stories told by people who have served long prison terms." An executive summary can be found at this link, and here are excerpts from it:

People are spending more time in prison, and the longest prison terms are getting longer.  Since 2000, average time served has risen in all 44 states that reported complete data to the National Corrections Reporting Program.  In states with more extensive data, we can trace the rise back to the 1980s and 1990s. In nearly half the states we looked at, the average length of the top 10 percent of prison terms increased by more than five years between 2000 and 2014.

The increase in time served has been sharpest among people convicted of violent offenses.  These changes have an outsized effect on prison populations because people convicted of violent offenses make up more than half the people in state prisons and the majority of people with long terms.

Longer terms are growing in number and as a share of the prison population.  In 35 states, at least 1 in 10 people in prison have been there for a decade or more.  This is even higher — nearly 1 in 4 people — in states like California and Michigan.  In at least 11 states, the number of people who have served at least a decade has more than doubled since 2000.

These trends aren’t accidental, and that they vary so much across states suggests that the growth in time served is driven by state-level decisionmaking.  States grappling with expanding prison populations must include those serving the longest prison terms in their efforts to curb mass incarceration.

Incarceration affects some people and communities more than others, and these patterns are often more pronounced among those who spend the most time in prison.  In 35 of the 44 states we looked at, racial disparities in prisons were starkest among people serving the longest 10 percent of terms.  In recent years, racial disparities have decreased among people serving less than 10 years, but 18 states actually saw an increase in disparities among people serving longer terms.

Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.  Thousands have been in prison for more than half their lives.  One in five people in prison for at least 10 years is a black man incarcerated before age 25.

A growing share of women in prison have served more than 10 years.  In Michigan, for example, 8 percent of women in prison had served at least a decade as of 2000; by 2013, that number was 13 percent.  In Wisconsin, this figure rose from 1.8 to 6.5 percent over the same period.  In light of this trend, more research is needed to understand how women are uniquely affected by long-term incarceration.

More than one in three people serving the longest prison terms is at least 55 years old.  More people serving longer terms means that more people are growing old in prison, yet prisons are typically ill-equipped to address the needs of the elderly and disabled.

July 13, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, July 11, 2017

US Sentencing Commission releases new overview of mandatory minimums in federal system

As reported in this official press release, the "United States Sentencing Commission today released a new publication — An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview) — that examines the use of federal mandatory minimum penalties and the impact of those penalties on the federal prison population." Here is more from the press release about this new publication and its findings:

The new publication updates much of the data contained in its 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System and compiles data through 2016, the most recent full fiscal year for which federal sentencing data is available.

Judge William H. Pryor, Jr., Acting Chair of the Commission stated, "This publication examines the latest data about the use of mandatory minimum sentences in the federal criminal justice system.  When Congress created the Commission, Congress empowered it to serve 'as a clearinghouse and information center' about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies.  See 28 U.S.C. § 995(a)(12)(A). The Commission has published this report to fulfill that Congressional mandate."

Among the key data findings in the publication are:

  • The average sentence length for federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 was 110 months of prison, nearly four times the average sentence (28 months) for offenders whose offense did not carry a mandatory minimum.

  • Slightly more than half (55.7%) of federal inmates in custody as of September 30, 2016 were convicted of an offense carrying a mandatory minimum.

  • Over one-third (38.7%) of federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 received relief from the mandatory minimum at sentencing, which is a decrease from 46.7 percent in fiscal year 2010.

  • Hispanic offenders continued to represent the largest group of federal offenders (40.4%) convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016.

  • White offenders had the longest average sentence (127 months) among federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016, which is a shift from fiscal year 2010 when Black offenders convicted of an offense carrying a mandatory minimum penalty had the longest average sentence (127 months).

  • While Black offenders convicted of an offense carrying a mandatory minimum penalty continued to receive relief from the mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed from a difference of 11.6 percent in fiscal year 2010 to 3.2 percent in fiscal year 2016.

The 2017 Overview is part of a multi-year study included in the Commission’s policy priorities over the past several amendment cycles and is intended to be the first in a series of reports on mandatory minimum penalties.  Continuation of the study is listed as a tentative policy priority for the amendment year ending May 1, 2018.  The Commission will accept public comment on proposed priorities through July 31, 2017.

The full USSC report, which runs 89 pages, is available at this link. I hope to find some time in the coming weeks to highlights some additional data from this latest review of the latest mandatory minimum realities.

July 11, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (2)

Thursday, June 08, 2017

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, May 31, 2017

"Era of Mass Expansion: Why State Officials Should Fight Jail Growth"

Era_MassIncarceration_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This PPI press release provide context and summary for the report's coverage:

State capitols share responsibility for growing jail populations, charges a new report by the Prison Policy Initiative. “Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often, state policymakers ignore jails,” argues the new report, Era of Mass Expansion: Why State Officials Should Fight Jail Growth.

The fact that jails are smaller than state prison systems and under local control has allowed state officials to avoid addressing the problems arising from jail policies and practices. “Reducing the number of people jailed has obvious benefits for individuals, but also helps states curb prison growth down the line,” says Joshua Aiken, report author and Policy Fellow at the Prison Policy Initiative.

Every year, 11 million people churn through local jail systems, mostly for minor violations of state law. Of the 720,000 people in jails on a given day, most have not been convicted of a crime and have either just been arrested or are too poor to make bail. And since the 1980s, crime has fallen but the number of people jailed has more than tripled.

The new report finds that the key driver of jail growth is not what one might expect – courtroom judges finding more people guilty and sentencing them to jail. In fact, the number of people serving jail sentences has actually fallen over the last 20 years. Instead, the report finds two troubling explanations for jail growth:

  • An increasing number of people held pre-trial.

  • Growing demand from federal and state agencies to rent cell space from local jails.

Recognizing the importance of state-specific data for policymakers and advocates, the report offers more than a hundred graphs that make possible state comparisons of jail trends. The report uncovers unique state problems that drive mass incarceration:

  • In some states, state officials have not utilized their ability to regulate the commercial bail industry, which has profited from the increased reliance on money bail and increased bail amounts. These trends have expanded the pre-trial population dramatically over time.

  • In other states, state lawmakers have expanded criminal codes, enabled overzealous prosecutors, and allowed police practices to play a paramount role in driving up jail populations, while underfunding pre-trial programs and alternatives to incarceration.

  • In 25 states, 10% or more of the people confined in local jails are being held for state or federal agencies, with some counties even adding capacity to meet the demand. This report is the first to be able to address the local jail population separately from the troubling issue of renting jail space.

Era of Mass Expansion draws particular attention to the states where the dubious practice of renting jail space to other authorities contributes most to jail growth. “Local sheriffs, especially in states like Louisiana and Kentucky, end up running a side business of incarcerating people for the state prison system or immigration authorities,” explains Aiken. “Renting out jail space often creates a financial incentive to expand jail facilities and keep more people behind bars.” The report finds that renting jail space for profit has contributed more to national jail growth since the 1980s than people who are being held by local authorities and who have actually been convicted of crimes.

For state policymakers, the report offers 10 specific recommendations to change how offenses are classified and treated by law enforcement, eliminate policies that criminalize poverty or create financial incentives for unnecessarily punitive practices, and monitor the upstream effects of local discretion. “There are plenty of things local officials can do to lower the jail population,” says Aiken. “With this report, I wanted to bring in state-level actors by showing how much of the solution is in their hands.”

May 31, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Friday, May 26, 2017

US Sentencing Commission releases report on "Youthful Offenders in the Federal System"

Cover_youthful-offendersThe US Sentencing Commission released this notable new report today titled simply "Youthful Offenders in the Federal System." Here is the report's introduction and "key findings" from its first two pages:

Introduction

Although youthful offenders account for about 18 percent of all federal offenders sentenced between fiscal years 2010 and 2015, there is little current information published about them.  In this publication, the United States Sentencing Commission (“the Commission”) presents information about youthful offenders, who for purposes of this report are defined as persons age 25 or younger at the time they are sentenced in the federal system.

Recent studies on brain development and age, coupled with recent Supreme Court decisions recognizing differences in offender culpability due to age, have led some policymakers to reconsider how youthful offenders should be punished.  This report reviews those studies and provides an overview of youthful federal offenders, including their demographic characteristics, what type of offenses they were sentenced for, how they were sentenced, and the extent of their criminal histories.

The report also discusses the intersection of neuroscience and law, and how this intersection has influenced the treatment of youthful offenders in the criminal justice system. The Commission is releasing this report as part of its review of the sentencing of youthful offenders.  In June 2016, the Commission’s Tribal Issues Advisory Group (TIAG) issued a report that proposed several guideline and policy changes relating to youthful offenders, including departure provisions and alternatives to incarceration.

Because many of the TIAG recommendations on this topic apply to all youthful offenders, and not just Native Americans, the Commission voted to study the treatment of youthful offenders as a policy priority for the 2016-2017 amendment cycle.

The key findings in this report are that:

• There were 86,309 offenders (18.0% of the federal offender population) age 25 or younger sentenced in the federal system between 2010 and 2015.

• The majority (57.8%) of youthful offenders are Hispanic.

• There were very few youthful offenders under the age of 18 sentenced in the federal system (52 between 2010 and 2015).

• Almost 92 percent of offenses committed by youthful offenders were nonviolent offenses.

• Similar to the overall federal offender population (or non-youthful offenders group) the most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%).

• The average sentence for youthful offenders was 34.9 months.

• Youthful offenders were more likely to be sentenced within the guidelines range than non-youthful offenders (56.1% compared to 50.1%).

• Youthful offenders recidivated at a much higher rate than their older counterparts — about 67 percent versus 41 percent.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (4)

"U.S. Prison Population Trends 1999-2015: Modest Reductions with Significant Variation"

The title of this post is the title of this brief "Fact Sheet" from The Sentencing Project, which gets started this way:

While states and the federal government have modestly reduced their prison populations in recent years, incarceration trends continue to vary significantly across jurisdictions. Overall, the number of people held in state and federal prisons has declined by 4.9% since reaching its peak in 2009.  Sixteen states have achieved double-digit rates of decline and the federal system has downsized at almost twice the national rate.  But while 38 states have reduced their prison populations, in most states this change has been relatively modest.  In addition, 12 states have continued to expand their prison populations even though most have shared in the nationwide crime drop.

Six states have reduced their prison populations by over 20% since reaching their peak levels:

• New Jersey (35% decline since 1999)

• New York (29% decline since 1999)

• Alaska (27% decline since 2006)

• California (26% decline since 2006, though partly offset by increasing jail use)

• Vermont (25% decline since 2009)

• Connecticut (22% decline since 2007)

Southern states including Mississippi, South Carolina, and Louisiana, which have exceptionally high rates of incarceration, have also begun to significantly downsize their prison populations.  These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  Moreover, the states with the most substantial prison population reductions have often outpaced the nationwide crime drop.

The pace of decarceration has been very modest in most states, especially given that nationwide violent and property crime rates have fallen by half since 1991.  Despite often sharing in these crime trends, 15 states had less than a 5% prison population decline since their peak year.  Moreover, 12 states have continued to expand their prison populations, with four producing doubledigit increases since 2010: North Dakota, Wyoming, Oklahoma, and Minnesota.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, May 25, 2017

"The portal itself is like a video game for criminal justice nerds."

The title of this post is a sentence that got me (too) excited about this new criminal justice resource called "Measure for Justice."  The sentence is found in this Marshall Project article, fully headlined "The New Tool That Could Revolutionize How We Measure Justice: A small nonprofit gathers criminal justice statistics, one county at a time." Here are excerpts from the article describing what is revolutionary about Measures for Justice:

The enormity of the country’s criminal justice system — 15,000 state and local courts, 18,000 local law enforcement agencies, more than two million prisoners — looks even more daunting when you consider how little we know about what is actually going on in there. Want to know who we prosecute and why? Good luck. Curious about how many people are charged with misdemeanors each year? Can’t tell you. How about how many people reoffend after prison? We don’t really know that, either.

In an age when everything is measured — when data determines the television we watch, the clothes we buy and the posts we see on Facebook — the justice system is a disturbing exception. Agencies exist in silos, and their data stays with them. Instead, we make policy based on anecdote, heavily filtered through a political lens.

This week the nonprofit Measures for Justice is launching an online tool meant to shine a high beam into these dark corners. It is gathering numbers from key criminal justice players — prosecutors offices, public defenders, courts, probation departments — in each of America’s more than 3,000 counties. Staffers clean the data, assemble it in an apples-to-apples format, use it to answer a standard set of basic questions, and make the results free and easy to access and understand.

It’s the kind of task you’d expect a federal agency like the Bureau of Justice Statistics, which has an average annual budget of $97 million, to take on. Instead, the 22 people at Measures for Justice’s Rochester, N.Y., offices are doing the work themselves on an annual budget of $4.6 million, donated mostly from foundations. So far they’ve tackled six states: Washington, Utah, Wisconsin, Pennsylvania, North Carolina and Florida, gathering most of the numbers one county at a time. Together, these make up 10 percent of the nation’s counties. The team chose those six states for their geographical diversity and — to ease the data gathering in the project’s early phases — because they had unified statewide court databases. The hope is to complete 15 more states by 2020, while updating the statistics from the first six states every two years.

“We’re giving people data they’ve never had access to before,” says Amy Bach, the founder and executive director of Measures for Justice. “We’re telling them stories about their communities and their counties that they’ve never heard before.” The project, which has as its motto “you can’t change what you can’t see,” centers on 32 “core measures”: yardsticks to determine how well local criminal justice systems are working. How often do people plead guilty without a lawyer? How often do prosecutors dismiss charges? How long do people have to wait for a court hearing? Users can also slice the answers to these questions in different ways, using “companion measures” such as race and political affiliation.

The portal itself is like a video game for criminal justice nerds. Users can compare counties, click on interactive maps and bar charts, and layer one data point upon another. The interface is clean and easy to use, if a little wonky. (The organization wants to present data in context, so each infographic is followed by a screen full of fine print and footnotes.) It’s meant for everyone — not just professors and policy wonks.

May 25, 2017 in Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (0)

Wednesday, May 24, 2017

"The Price of Prisons: Examining State Spending Trends, 2010 - 2015"

Images (2)The title of this post is the title of this notable new Vera Institute of Justice report. Here is its introduction:

After decades of a stable rate of incarceration, the U.S. prison population experienced unprecedented growth from the early 1970s into the new millennium — with the number of people confined to state prisons increasing by more than 600 percent, reaching just over 1.4 million people by the end of 2009.The engine driving this growth was the enactment and implementation over time of a broad array of tough-on-crime policies, including the rapid and continuous expansion of the criminal code; the adoption of zero-tolerance policing tactics, particularly around minor street-level drug and quality-of-life offenses; and the proliferation of harsh sentencing and release policies aimed at keeping people in prison for longer periods of time (such as mandatory minimum sentences, truth-in-sentencing statutes, and habitual offender laws).

Unsurprisingly, this explosion in the use of incarceration had a direct financial influence on state budgets.  Creating and sustaining such a sprawling penal system has been expensive.  With more people under their care, state prison systems were compelled to build new prison facilities and expand existing ones.  To staff these new and expanded facilities, they also had to hire, train, and retain ever more employees.  In addition to expanding the state-operated prison system, some states also began to board out increasing numbers of people to county jails, privately-run facilities, and other states’ prison systems.

After hitting a high of 1.4 million people in 2009, however, the overall state prison population has since declined by 5 percent, or 77,000 people.  Lawmakers in nearly every state and from across the political spectrum — some prompted by the 2008 recession — have enacted new laws to reduce prison populations and spending, often guided by a now-large body of research supporting alternative, more effective responses to crime.7 In addition to fiscal pressures, the push for reform has been further bolstered by other factors, including low crime rates; shifting public opinion that now favors less incarceration and more rehabilitation; and dissatisfaction with past punitive policies that have failed to moderate persistently high recidivism rates among those sent to prison.

With these various political, institutional, and economic forces at play, most states have adopted a variety of different policies, including those that increase opportunities to divert people away from the traditional criminal justice process; expand the use of community-based sanctions; reduce the length and severity of prison sentences for certain offenses, including the rollback of mandatory penalties; increase opportunities for people to gain early release; and better provide enhanced reentry support for those leaving prison or jail.

In light of nearly a decade of broad-based criminal justice reform, this report seeks to determine where state prison spending stands today and how it has changed in recent years.  In particular, if a goal of recent reforms has been to make deep and lasting cuts to prison spending by reducing the prison population, have states who have witnessed the desired downward shift in prison size also witnessed it in spending?  To answer this question, researchers at the Vera Institute of Justice (Vera) developed a survey to measure changes in state prison population and expenditures between 2010 and 2015, and conducted follow-up interviews with state prison budget officials to better understand spending and population trends.

Vera’s study confirms that prisons remain an expensive enterprise, despite the success of many states — including Michigan, New Jersey, New York, and South Carolina —in simultaneously reducing their prison populations while achieving budget savings.  The first part of this report describes 2015 prison expenditures, identifying the main driver of corrections spending across responding states.  The second half of the report then discusses how changes in prison populations during the study period, and other trends largely outside the control of departments of corrections have affected prison spending. What is clear is that increased spending is not inevitable, since nearly half of states have cut their spending on prisons between 2010 and 2015.  But while one might expect that states with shrinking prison populations are uniformly spending less on prisons, or conversely that states with growing populations are spending more, Vera’s findings paint a more complicated picture.  Indeed, often there is no single reason that explains a rise or fall in spending, but a multitude of factors that push and pull expenditures in different directions.

May 24, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Monday, May 08, 2017

US Sentencing Commission releases report providing overview of FY 2016 federal sentencing cases

Fig1_fy16overviewThe US Sentencing Commission just released this helpful and relatively brief data report titled simply "Overview of Federal Criminal Cases Fiscal Year 2016."  Among other useful realities, this report provides a certain kind of data marker for the end of the "Obama era" for federal caseload and sentencing patterns.  (The chart reprinted here from the report shows how the number of persons federal sentenced significantly increased during Obama's first term and significantly decreased during Obama's second term.) Here is the overview of the USSC report and key findings via this USSC webpage:

The United States Sentencing Commission received information on 67,874 federal criminal cases in which the offender was sentenced in fiscal year 2016. Among these cases, 67,742 involved an individual offender and 132 involved a corporation or other “organizational” offender. The Commission also received information on 11,991 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases.

Key Findings

A review of cases reported to the Commission in fiscal year 2016 reveal the following:

  • The 67,742 individual original cases reported to the Commission in fiscal year 2016 represent a decrease of 21.4% since fiscal year 2011, the year in which the largest number of offenders were sentenced. Drug cases continued to be the most common type of federal case, accounting for 31.6% of all cases.

  • Methamphetamine offenses continued to be the most common drug cases, representing 30.8% of all drug crimes.  The proportion of methamphetamine cases has increased substantially since fiscal year 1994, when those cases accounted for only 6.4% of all drug cases.

  • Just under half (44.5%) of all drug offenders were convicted of an offense carrying a mandatory minimum penalty; however, this proportion was the lowest it has been since fiscal year 1993.

  • Immigration cases were the second most common, accounting for 29.6% of the total federal caseload.  In fiscal year 2011, immigration cases were the most common federal crime — however, since that year the number of these cases has steadily declined.

  • Crimes involving firearms were the third most common offense, accounting for 10.8% of the total number of federal criminal convictions in fiscal year 2016.  The average sentence imposed in firearms cases was 75 months.

  • There were 6,517 fraud cases in fiscal year 2016, accounting for 9.6% of the total federal caseload; however, this number represents a 12.2% reduction from the year before.

May 8, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Thursday, May 04, 2017

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

The title of this post is the title of this paper authored by Jordan Hyatt and Steven Chanenson recently posted to SSRN. Here is the abstract:

At-sentencing risk assessments are predictions of an individual’s statistically likely future criminal conduct.  These assessments can be derived from a number of methodologies ranging from unstructured clinical judgment to advanced statistical and actuarial processes.  Some assessments consider only correlates of criminal recidivism, while others also take into account criminogenic needs.  Assessments of this nature have long been used to classify defendants for treatment and supervision within prisons and on community supervision, but they have only relatively recently begun to be used — or considered for use — during the sentencing process.  This shift in application has raised substantial practical and policy challenges and questions.

This paper, supported by the U.S. Department of Justice’s Bureau of Justice Assistance, directly addresses these issues and provides information and examples from a range of jurisdictions, including some which have integrated at-sentencing risk assessment programs in place or are in the process of doing so.  Derived from a survey of judges, as well as a series of interviews with stakeholders from across the nation, opportunities for future research and planning to guide the cautious engagement with at-sentencing risk assessment are identified.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

The Sentencing Project reports on "America’s Increasing Use of Life and Long-Term Sentences"

The Sentencing Project yesterday released this significant new report titled "Still Life: America’s Increasing Use of Life and Long-Term Sentences." Here is its introduction:

The number of people serving life sentences in U.S. prisons is at an all-time high. Nearly 162,000 people are serving a life sentence -- one of every nine people in prison.  An additional 44,311 individuals are serving “virtual life” sentences of 50 years or more. Incorporating this category of life sentence, the total population serving a life or virtual life sentence reached 206,268 in 2016.  This represents 13.9 percent of the prison population, or one of every seven people behind bars. A mix of factors has led to the broad use of life sentences in the United States, placing it in stark contrast to practices in other nations.

Every state and the federal government allow prison sentences that are so long that death in prison is presumed.  This report provides a comprehensive profile of those living in this deep end of the justice system. Our analysis provides current figures on people serving life with parole (LWP) and life without parole (LWOP) as well as a category of long-term prisoner that has not previously been quantified: those serving “virtual” or de facto life sentences.  Even though virtual life sentences can extend beyond the typical lifespan, because the sentences are not legally considered life sentences, traditional counts of life-sentenced prisoners have excluded them until now.

KEY FINDINGS

• As of 2016, there were 161,957 people serving life sentences, or one of every nine people in prison.

• An additional 44,311 individuals are serving “virtual life” sentences, yielding a total population of life and virtual life sentences at 206,268 – or one of every seven people in prison.

• The pool of people serving life sentences has more than quadrupled since 1984.The increase in the LWOP population has far outpaced the changes in the LWP population.

• There are 44,311 people serving prison sentences that are 50 years or longer. In Indiana, Louisiana, and Montana, more than 11 percent of the prison population is serving a de facto life sentence.

• Nearly half (48.3%) of life and virtual life-sentenced individuals are African American, equal to one in five black prisoners overall.

• Nearly 12,000 people have been sentenced to life or virtual life for crimes committed as juveniles; of these over 2,300 were sentenced to life without parole.

• More than 17,000 individuals with an LWP, LWOP, or virtual life sentence have been convicted of nonviolent crimes.

• The United States incarcerates people for life at a rate of 50 per 100,000, roughly equivalent to the entire incarceration rates of the Scandinavian nations of Denmark, Finland, and Sweden.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Monday, May 01, 2017

Spotlighting again the use of risk-assessment computations at sentencing (under an inaccurate headline)

Adam Liptak has this new column discussing the Loomis risk-assessment sentencing case pending SCOTUS cert review, but the column bears the inaccurate headline "Sent to Prison by a Software Program’s Secret Algorithms."  As of this writing, software programs alone have not sent any persons to prison, not in the Wisconsin case before SCOTUS or any other that I know about.  Software may be making recommendations to sentencing decision-makers, and that certainly justifies scrutiny, but we have not quite yet reached the brave new world that this headline suggests.  That said, the headline did grab my attention, and here are parts of the article that follows:

[A] Wisconsin man, Eric L. Loomis, who was sentenced to six years in prison based in part on a private company’s proprietary software. Mr. Loomis says his right to due process was violated by a judge’s consideration of a report generated by the software’s secret algorithm, one Mr. Loomis was unable to inspect or challenge.

In March, in a signal that the justices were intrigued by Mr. Loomis’s case, they asked the federal government to file a friend-of-the-court brief offering its views on whether the court should hear his appeal.

The report in Mr. Loomis’s case was produced by a product called Compas, sold by Northpointe Inc. It included a series of bar charts that assessed the risk that Mr. Loomis would commit more crimes. The Compas report, a prosecutor told the trial judge, showed “a high risk of violence, high risk of recidivism, high pretrial risk.” The judge agreed, telling Mr. Loomis that “you’re identified, through the Compas assessment, as an individual who is a high risk to the community.”

The Wisconsin Supreme Court ruled against Mr. Loomis. The report added valuable information, it said, and Mr. Loomis would have gotten the same sentence based solely on the usual factors, including his crime — fleeing the police in a car — and his criminal history.

At the same time, the court seemed uneasy with using a secret algorithm to send a man to prison. Justice Ann Walsh Bradley, writing for the court, discussed, for instance, a report from ProPublica about Compas that concluded that black defendants in Broward County, Fla., “were far more likely than white defendants to be incorrectly judged to be at a higher rate of recidivism.”

Justice Bradley noted that Northpointe had disputed the analysis. Still, she wrote, “this study and others raise concerns regarding how a Compas assessment’s risk factors correlate with race.” In the end, though, Justice Bradley allowed sentencing judges to use Compas. They must take account of the algorithm’s limitations and the secrecy surrounding it, she wrote, but said the software could be helpful “in providing the sentencing court with as much information as possible in order to arrive at an individualized sentence.”

Justice Bradley made Compas’s role in sentencing sound like the consideration of race in a selective university’s holistic admissions program. It could be one factor among many, she wrote, but not the determinative one.

In urging the United States Supreme Court not to hear the case, Wisconsin’s attorney general, Brad D. Schimel, seemed to acknowledge that the questions in the case were substantial ones. But he said the justices should not move too fast. “The use of risk assessments by sentencing courts is a novel issue, which needs time for further percolation,” Mr. Schimel wrote.

He added that Mr. Loomis “was free to question the assessment and explain its possible flaws.” But it is a little hard to see how he could do that without access to the algorithm itself. The company that markets Compas says its formula is a trade secret. “The key to our product is the algorithms, and they’re proprietary,” one of its executives said last year. “We’ve created them, and we don’t release them because it’s certainly a core piece of our business.”

Compas and other products with similar algorithms play a role in many states’ criminal justice systems. “These proprietary techniques are used to set bail, determine sentences, and even contribute to determinations about guilt or innocence,” a report from the Electronic Privacy Information Center found [available here]. “Yet the inner workings of these tools are largely hidden from public view.”...

There are good reasons to use data to ensure uniformity in sentencing. It is less clear that uniformity must come at the price of secrecy, particularly when the justification for secrecy is the protection of a private company’s profits. The government can surely develop its own algorithms and allow defense lawyers to evaluate them. At Rensselaer last month, Chief Justice Roberts said that judges had work to do in an era of rapid change. “The impact of technology has been across the board,” he said, “and we haven’t yet really absorbed how it’s going to change the way we do business.” 

Some prior related posts on Loomis case:

May 1, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, April 27, 2017

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

April 27, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (0)

Wednesday, March 29, 2017

Notable review of recent ups and downs in federal prosecutions

FT_17.03.23_prosecutions_numberIn this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:

After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.

Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.

Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.

However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.

Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”

Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...

Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.

Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.

March 29, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, March 14, 2017

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

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

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

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

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

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

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

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

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

March 14, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, March 13, 2017

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

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

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

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

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

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

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

Friday, March 10, 2017

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

I noted in this post earlier this week that the US Sentencing Commission had released the first of a new series of Quick Facts covering federal fraud sentencing with a focus on health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  I have now just noticed that the USSC released a number of other fraud-focused Quick Facts this week, and here are links to them:

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

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

Thursday, March 09, 2017

US Sentencing Commission releases another big recidivism report on federal offenders

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

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

Report Highlights

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

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

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

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

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