Wednesday, September 18, 2013
The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"
I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project. Here is the text of the email, which includes links to the publication as well as a summry of its key findings:
While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984. As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.
Key findings from the report include:
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.
- One of every nine individuals in prison is serving a life sentence.
- The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
- Approximately 10,000 lifers have been convicted of nonviolent offenses.
- Nearly half of lifers are African American and 1 in 6 are Latino.
- More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
- More than 5,300 (3.4%) of the life-sentenced inmates are female.
September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Thursday, September 12, 2013
US Sentencing Commission releases more documents in its great new "Quick Facts" seriesI am so very pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of documents as part of its terrific new series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.)
As I have said before, I think this is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these latest two publications in the series:
- Marijuana Trafficking Offenses (September 2013)
- Methamphetamine Trafficking Offenses (September 2013)
September 12, 2013 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack
Thursday, September 05, 2013
ABA Death Penalty Review Project releases its assessment for VIrginiaAs reported in this Richmond Times-Dispatch article, headlined "Study urges fairness reforms in death penalty cases," a big new report on the operation of the death penalty in the Old Dominion has just been released. Here are the basics:
A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases. The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.
A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups. Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.
According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976. The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.
The ABA study complimented Virginia on improvements including the accreditation of the Virginia Department of forensic Science’s four laboratories and the state medical examiner’s office as well as the certification of their employees. Among the recommendations for improvement, however, was requiring law enforcement agencies to electronically record suspect interrogations and confessions. A recent survey found only nine Virginia police agencies record a majority of their interrogations.
The team also recommends that in capital murder cases the Virginia Supreme Court require prosecutors to disclose the identity and any prior statements of testifying witnesses to allow the defense adequate preparation time. Virginia’s pre-trial discovery rules providing the defense with information to prepare its case are more restrictive than in other states, the team concluded. A defendant in a death case could go to trial without knowing who will testify against them....
The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches. The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.
The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.
A copy of the full report is available via the ABA's website at this link. And the other prior ABA state-specific assessment are available via this page. Without reading this latest Virginia report in some detail, I cannot readily conclude whether this report's conclusions strike me as sound. But I can already note that this new ABA state death penalty review report seems, in both tone and content, to be much more complementary about Virginia's administration of capital punishment than most if not all other ABA state death penalty review reports.
Friday, August 02, 2013
Could prison perhaps be helping to cause serious recidivism in Delaware?The question in the title of this post is the first reaction I had upon seeing this lengthy local story, headlined "Study: 8 in 10 released inmates return to Del. prisons." Here are the details:
Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study. The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day....
Conducted by the Delaware Criminal Justice Council, the report was a necessary initial step to evaluating the effectiveness of the state's justice system, including the programs available to prisoners while behind bars or after being freed. "These are people who have been sentenced to a year or more in prison, the more serious offenders, and we expected them to be the highest recidivists," said Drewry N. Fennell, the criminal justice council's executive director.
"It really gives us a baseline against which to measure our successes in the future. And our failures. And to know whether we are spending our time and money well in ways that really do enhance communities that people are going back to, as well as enhancing the lives of people who have been incarcerated. We don't want to invest in things that don't do that."
Delaware Gov. Jack Markell said the information should be used to develop better strategies to prevent crime and reduce the number of criminals who re-offend. "Too many people released from our prisons go on to commit more crimes. We need to change that," he said in a statement.
Delaware officials haven't studied how effective the corrections system is in keeping offenders from returning to prison since 2000, and that study was limited to a one-time snapshot of prisoners returning after their release in the 1980s and early 1990s.
Delaware Public Defender Brendan O'Neill, whose taxpayer-funded agency represents about 85% of the state's defendants, said he was surprised the rates included in the new report are so high. "It raises more questions than it answers now," O'Neill said, while applauding officials for finally conducting the long-needed study....
Delaware Attorney General Beau Biden said in a written statement that the report "highlights an alarming rate of recidivism that needs to be addressed by the criminal justice system." Biden said its findings underscore problems his office has been trying to address, such as prison sentences that don't "adequately reflect the seriousness of the crime" or deter future crimes, and the failure of judges to order pre-sentence reports for most serious felony cases.
Delaware embarked on the study on the orders of the General Assembly, which passed a bill in 2012 that required an annual report from the Criminal Justice Council's Statistical Analysis Center. The law, part of the Justice Reinvestment Initiative that looks to spend corrections dollars more wisely, requires one-year, two-year and three-year rates of re-arrest, reconviction and recommitment of released offenders....
Researchers studied 1,167 prisoners released in 2008 and 1,091 freed in 2009. About 91% were men. Fifty-nine percent were black, and 41% white. Those released in 2008 had slightly higher rates of going back into the criminal justice system than those freed in 2009. Of the 2008 group, 56% got arrested for a "serious offense" within one year, compared to 53% in 2009. Fennell said serious crimes include all felonies and Class A and B misdemeanors. Class B misdemeanors include crimes such as marijuana possession, prostitution and criminal contempt....
Perry Phelps, head of the Bureau of Prisons, cautioned, however, that the deck is often stacked against former inmates because they have trouble getting public assistance, college financial aid or jobs. Lawmakers, educators and employers need to face that reality and remove some of the barriers for those who truly want to reform to help prevent them from returning to their criminal ways, he said.
"We tell people in this country we forgive and forget. You go to jail and do your time and you are set free. But that's not the reality of it," Phelps said. "Some people are ostracized as criminals for so long when they go back to society."
A press release concerning this recidivism report is available at this link, and the full report is available at this link. Among the notable findings from the detailed report is that property offenders serving significant prison terms the first time around still have the highest recidivism rate, which leads me to worry (as my post title suggests) that property offenders may be folks most likely to learn about new and improved ways to commit new offenses while inside prison.
Tuesday, July 30, 2013
New USSC data on implimentation and impact of retroactive crack guidelines after FSA
I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act." This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.
Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive. Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.
For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.
As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.
July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Friday, July 26, 2013
New BJS data show continued 2012 decline in state prison populations (and continued federal increase)As detailed in this official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Prison Population Declined for Third Consecutive Year During 2012," the impact of tight budgets and state reforms continues to impact national prison populations in important and significant ways. Here are the basic details:
The U.S. prison population declined 1.7 percent (or by 27,770 inmates) from 2011 to 2012, falling to an estimated 1,571,013 prisoners.... Nine states had a decrease of over 1,000 prisoners in 2012: California, Texas, North Carolina, Colorado, Arkansas, New York, Florida, Virginia and Maryland.
This is the third consecutive year of a decline in the number of state prisoners, which represents a shift in the direction of incarceration practice in the states over the past 30 years. The prison population grew every year between 1978 and 2009, from 307,276 prisoners in 1978 to a high of 1,615,487 prisoners in 2009....
California accounted for the majority (51 percent) of the decline in state prisoners with 15,035 fewer inmates in 2012 than 2011. The decline in California was due in part to its Public Safety Realignment policy, which was designed to reduce overcrowding in the state prisons by diverting new admissions of “nonserious, nonsex, nonviolent offenders” from state prisons to local jails.
The decline in the state prison population was offset by an increase in the number of federal inmates. The federal prison population grew by 0.7 percent (or 1,453 inmates) during 2012, a slower rate than the average annual increase of 3.2 percent each year over the past 10 years.
The U.S. imprisonment rate dropped to 480 sentenced prisoners per 100,000 residents in 2012, continuing a decline since 2007. The national imprisonment rate for males (910 sentenced prisoners per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (63 sentenced prisoners per 100,000 female U.S. residents). The female imprisonment rate decreased 2.9 percent in 2012 from 65 per 100,000 female U.S. residents in 2011.
In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 per 100,000 state residents).
Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).
In 2011 (the most recent data available), the majority (53 percent) of sentenced state prisoners were serving time for a violent offense, including robbery (14 percent), murder or nonnegligent manslaughter (12 percent), rape or sexual assault (12 percent) and aggravated or simple assault (10 percent). About 18 percent were serving time for property offenses, 17 percent for drug crimes and 11 percent for public order offenses, such as weapon violations, drunk driving, commercialized vice and court offenses.
White prisoners comprised 35 percent of the 2011 state prison population, while black prisoners were 38 percent and Hispanics were 21 percent. The percentage of Hispanic inmates sentenced for violent offenses (58 percent) during 2011 exceeded that of non-Hispanic black (56 percent) and non-Hispanic white (49 percent) inmates, while the number of black inmates imprisoned for violent crimes (284,631) surpassed that of white (228,782) or Hispanic (162,489) inmates.
The number of white inmates sentenced for property crime (108,560) was larger than the number of black (78,197) and Hispanic (38,264) inmates sentenced for property crime, while more black inmates were sentenced for drug offenses than inmates of other races or Hispanic origin.
All of this data, and lots more of note, can be found via this 17-page BJS report, which carries the thrilling title "Prisoners in 2012 - Advance Counts." Effective media coverage of this notable new prisoner data can be found via this New York Times article headlined "U.S. Prison Populations Decline, Reflecting New Approach to Crime."
Wednesday, July 03, 2013
"Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies"The title of this post is the title of this important new report emerging from a group of researchers working at Yale Law School. The report provides a soberly fitting and depressing way to launching into a holiday weekend celebration American freedoms. Here is the abstract:
This report provides an overview of state and federal policies related to long-term isolation of inmates, a practice common in the United States and one that has drawn attention in recent years from many sectors. All jurisdictions in the United States provide for some form of separation of inmates from the general population. Prison administrators see the ability to separate inmates as central to protecting the safety of both inmates and staff. Yet many correctional systems are reviewing their use of segregated confinement; as controversy surrounds this form of control, its duration, and its effects.
The debates about these practices are reflected in the terms used, with different audiences taking exceptions to each. Much of the recent public discussion calls the practice “solitary confinement” or “isolation.” In contrast, correctional facility policies use terms such as “segregation,” “restricted housing,” or “special management,” and some corrections leaders prefer the term “separation.”
All agree that the practice entails separating inmates from the general population and restricting their participation in everyday activities; such as recreation, shared meals, and religious, educational, and other programs. The degree of contact permitted — with staff, other inmates, or volunteers — varies. Some jurisdictions provide single cells and others double; in some settings, inmates find ways to communicate with each other. The length of time spent in isolation can vary from a few days to many years.
This report provides a window into these practices. This overview describes rules promulgated by prison officials to structure decisions on the placement of persons in “administrative segregation,” which is one form of separation of inmates from the general population. Working with the Association of State Correctional Administrators (ASCA), the Arthur Liman Program at Yale Law School launched an effort to review the written policies related to administrative segregation promulgated by correctional systems in the United States. With ASCA’s assistance, we obtained policies from 47 jurisdictions, including 46 states and the Federal Bureau of Prisons.
This overview provides a national portrait of policies governing administrative segregation for individuals in prisons, outlines the commonalities and variations among jurisdictions, facilitates comparisons across jurisdictions, and enables consideration of how and when administrative segregation is and should be used. Because this review is of written policies, it raises many questions for research – about whether the policies are implemented as written, achieve the goals for which they are crafted, and at what costs. Information is needed on the demographic data on the populations held in various forms of segregated custody, the reasons for placement of individuals in and the duration of such confinement, the views of inmates, of staff on site, and of central office personnel; and the long-term effects of administrative segregation on prison management and on individuals. Without such insights, one cannot assess the experiences of segregation from the perspectives of those who run, those who work in, and those who live in these institutions.
Friday, April 26, 2013
A data-based exploration of prison growth and the drug war
I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story. Here are his first three posts in a series that is a must-read for a number of reasons:
- Hunting Zombies: The War on Drugs and Prison Growth
- Setting the Stage: The Explosion in Prison Populations
- Some More Evidence Against the War on Drugs Hypothesis
Thursday, April 11, 2013
How should we understand and react to a small uptick in San Diego's crime rate?The question in the title of this post is my reaction to this local article which carries the (problematic? incomplete?) big and bold headline "County crime increased in 2012." Here are the basics of the (important? problematic? fascinating?) local California crime story:
The decades-long trend of declining crime across San Diego County took a turn last year, when reported incidents increased by 7 percent. Regional law enforcement officials say they are concerned, but not certain if there is cause for alarm.
“Nobody in law enforcement likes it when the crime rate goes up,” Sheriff Bill Gore said Wednesday, adding that it is cause for concern. “Crime rates have been going down for 30 years. We didn’t think crime would go to zero.”
The 2012 numbers were released Wednesday by the San Diego Association of Governments, which each year tallies the seven major crimes tracked by the FBI: homicide, rape, robbery, aggravated assault, burglary, larceny and motor theft.
The countywide figures, in rounded numbers, show that reported crimes rose from 76,000 in 2011 to 81,000 in 2012, a 7 percent increase. Violent crimes rose 7 percent, property crimes rose 6 percent.
Crime rose by 7 percent within the city of San Diego, which had 35,000 crimes in 2011 compared to 37,000 in 2012. Incorporated cities and unincorporated county areas served by the Sheriff’s Department saw an 8 percent increase in crime, from about 16,000 to 17,000.
The local numbers seem to echo, and exceed, a national upward trend in crime figures. “Nationally, for the first six months of 2012, we saw a less than 2 percent increase in the numbers — a slight uptick,” said James Austin, president of nonprofit JFA Institute, a Washington D.C.-based criminal justice research and consulting firm. “By region, most of that increase is produced in the Northeast and the Western region, and San Diego is part of the Western region. So that is consistent.”
With the 2012 increase in crimes, authorities around San Diego County have asked themselves “Why?” and looked for ways to slam on the brakes. Some are ready to place at least some of the blame on the state’s public safety realignment law, also known as AB 109. “It’s too early to say,” said Cynthia Burke, director of SANDAG’s criminal justice research division. “It’s something law enforcement is tracking.”...
San Diego police Chief Bill Lansdowne pointed out that in 2011, the city had its lowest crime rate in 42 years. Then came last year’s spike. There were more homicides, rapes, assaults, home burglaries, larcenies and car thefts. The only crime category to drop was nonresidential burglaries.
“I believe AB 109 is starting to have an effect on our crime,” Lansdowne said. He said lower numbers of police officers, because of budget cuts, were also a likely factor. Gore, too, said financial constraints and staff reductions have had their effect, and he hopes to fill 250 empty deputy positions by mid-2014.
In recent months, Lansdowne said, the department has focused crime-fighting efforts on areas seeing the greatest increases. One result, he said, is that homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent.
He also is hiring more officers, and looking forward to San Diego’s share of a $1.6 million state grant to county law agencies to address AB 109 issues. Within the county last year, Ramona saw the largest increase in crime — 28 percent — with 546 crimes reported in 2011 and 699 in 2012. Most of the crime was burglary and theft, said Lt. James Bovet, in charge of the town’s sheriff’s station....
Bovet said he was watching closely last year as the mountain community’s crime figures edged up. “Our overall crime rate is low, but this increase was so dramatic, we had to take some quick steps,” he said. “We analyzed our crime problems and prioritized out staff with more deputies per shift. I tasked my deputies here to pretty much talk weekly to a probationer. We do more to keep track of our known criminals and parolees.”
Bovet said deputies also broke up two burglary rings late last year, making several arrests. “I can tell you, this year, we’ve seen significant decreases in crime,” Bovet said. “We’ll keep monitoring it and do what we can do.”
Assuming the data reported here (both in the text and in the chart) is accurate, the real question/story here for sentencing fans is how should we come to understand this data and react thereto. For folks who do not like the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is real easy to claim that this crime increase is the fault of activist judges and Governor Jerry Brown. But for folks who want to defend the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is also real easy to claim that local authorities failed to plan properly for realignment and/or that modern budget cuts and limited funding for police and realted social services is the primary reason crime ticked up.
Perhaps more importantly, perhaps the right "story" and reaction thereto is celebration of government improvements, not finger-pointing and government blame. As the chart above reveals, crime rates in San Diego, even after the SCOTUS Plata ruling and the realignment plan, remain a historically low level. And it seems that an small uptick in crime led to local police department reviewing closely whether and how they could do more effectivel crime-fighting for less money. And, at least according to the "cops on the beat," it now appears that despite realignment AND budget cuts, now in some areas "homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent."
In other words, despite the short-hand bad-news headline of "County crime increased in 2012," the real story is much more mixed, and a lot of different stories can be told about whether and why the local crime glass is half-full or half-empty. Unfortunately, while I have the time and energy to think this all through and am inclined to spin this story in a positive way, I suspect the average voter and average politician instead only has time to see the headline and to (over)react to what seems like very bad news concerning both crime and punishment in California.
Some related posts on the great crime decline and modern crime rates:
- Is the great US crime decline now finally over?: BJS reports crime up in 2011
- FBI reports crime was down yet again in 2011 (though BJS said it was up)
- Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
- Still more (and still puzzling) crime rate declines reported by FBI
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Amazingly great new FBI data: crime down yet again in start of 2011!
- Still more great news and data on the latest crime rates in the United States
- Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Some speculations about the great crime decline in Florida
Saturday, March 16, 2013
"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencingThe title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism." Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:
Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.
The downward variance rate is at its most extreme with a very controversial crime: child pornography offending. The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position. A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.
The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued. Bivariate measures showed statistically significant correlations among relevant measures. The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits. A multivariate logistic regression analysis was employed using downward variances as the dependent variable. Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.
The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference. It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline. Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.
Some recent related posts:
- US Sentencing Commission releases big new report on federal child porn sentencing
- Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?
- The many (impossible?) challenges of federal child pornography sentencing
- DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken
- Notable debate in Wisconsin over new state child porn sentencing law
March 16, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, March 06, 2013
Ohio completes its 50th execution in modern eraAs reported in this new AP report, headlined "Ohio executes man who fatally shot security guard," my own great state of Ohio has this morning reach a notable modern death penalty milestone. Here are the basics:
A man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree was executed on Wednesday.
Frederick Treesh received a single powerful dose of pentobarbital and was pronounced dead at 10:37 by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville. Treesh was sentenced to die for killing Henry Dupree in Eastlake east of Cleveland on Aug. 27, 1994.
Treesh, in a last statement, apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution. "I've never been tried, I've never been charged," he said. After a few more comments he said, "If you want me murdered, just say it."
Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.
Gov. John Kasich denied Treesh clemency last week, following the recommendation of the state parole board, which ruled unanimously last month that the evidence showed Dupree was seated when shot and hadn't shown any sign of being a threat to Treesh. The board also said Treesh's decision to shoot a clerk in the face as he left the store suggests Treesh's "murderous intent" when coming to the store. Treesh and his co-defendant "gratuitously brutalized, humiliated and killed innocent people, most of whom, like Dupree, posed no real or perceived threat to them," the board said.
Prosecutors say Treesh, 48, and the co-defendant robbed banks and businesses, committed sexual assaults, stole cars, committed carjackings and shot someone to death in a Michigan robbery during a spree that also took them to Indiana, Iowa, Minnesota and Wisconsin.
Just a decade ago, Ohio was among a number of large industrial and western states with a fairly large death row but few actual executions. States still in that category include California, Nevada and Pennsylvania and used to include Illinois.
But now Ohio in among the ranks of mostly southern states that have completed more than 50 executions in the post-Furman modern death penalty era. Via this page at the Death Penalty Information Center, here is a list of the states that Ohio has now joined (with their total modern executions in parentheses):
Wednesday, February 27, 2013
US Sentencing Commission releases big new report on federal child porn sentencingAs reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):
All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.
Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year. That growth reflects the increasing role of the Internet in child pornography offenses. Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.
Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago. Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established. Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders. As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.
Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision. Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”
The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses. Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses. Both figures should be considered conservative because such offenses are underreported....
Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”
I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.
February 27, 2013 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
Thursday, February 21, 2013
US Sentencing Commission website back in action with full Booker report and FY 2012 sentencing data
I am very pleased to have discovered tonight that the US Sentencing Commission, just less than a month after Anonymous hacked into its website (basic here), now has its website up and running again. And not only is the USSC website back, but it is now better than ever with these two new big sets of materials:
This report assesses the continuing impact on the federal sentencing system of the Supreme Court's decision in United States v. Booker.
This report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Congrats to the USSC for getting its on-line house back in order. I for one truly missed the USSC website when it was gone.
Recent related posts:
- US Sentencing Commission releases (and provides on-line here only) new Booker report
- Summary of key USSC findings in its big new Booker report
- Wall Street Journal covers USSC's new Booker report (and its unusual coverage)
Sunday, February 17, 2013
If you are eager for access to all parts of the new US Sentencing Commission Booker report...
Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system.
Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals. I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order. But, as of this writing, the USSC's main webpage is still "under construction."
Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing. I remain hopeful that the USSC's website will be back in action by the time the CP report is ready. But I suppose only time will tell.
Recent related posts:
- US Sentencing Commission releases (and provides on-line here only) new Booker report
- Summary of key USSC findings in its big new Booker report
- Wall Street Journal covers USSC's new Booker report (and its unusual coverage)
February 17, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, February 15, 2013
Wall Street Journal covers USSC's new Booker report (and its unusual coverage)The Wall Street Journal has a pair of new pieces based on the US Sentencing Commission's recently released Booker report. This main one has this provocative headline "Racial Gap in Men's Sentencing," and here are excerpts:
Prison sentences of black men were nearly 20% longer than those of white men for similar crimes in recent years, an analysis by the U.S. Sentencing Commission found. That racial gap has widened since the Supreme Court restored judicial discretion in sentencing in 2005, according to the Sentencing Commission's findings, which were submitted to Congress last month and released publicly this week.
In its report, the commission recommended that federal judges give sentencing guidelines more weight, and that appeals courts more closely scrutinize sentences that fall beyond them.
The commission, which is part of the judicial branch, was careful to avoid the implication of racism among federal judges, acknowledging that they "make sentencing decisions based on many legitimate considerations that are not or cannot be measured."
Still, the findings drew criticism from advocacy groups and researchers, who said the commission's focus on the very end of the criminal-justice process ignored possible bias at earlier stages, such as when a person is arrested and charged, or enters into a plea deal with prosecutors.
"They've only got data on this final slice of the process, but they are still missing crucial parts of the criminal-justice process," said Sonja Starr, a law professor at the University of Michigan, who has analyzed sentencing and arrest data and found no marked increase in racial disparity since 2005....
In the two years after the Booker ruling, sentences of blacks were on average 15.2% longer than the sentences of similarly situated whites, according to the Sentencing Commission report. Between December 2007 and September 2011, the most recent period covered in the report, sentences of black males were 19.5% longer than those for whites. The analysis also found that black males were 25% less likely than whites in the same period to receive a sentence below the guidelines' range.
The Sentencing Commission released a similar report in 2010. Researchers criticized its analysis for including sentences of probation, which they argued amplified the demographic differences.
In the new study, the Sentencing Commission conducted a separate analysis that excluded sentences of probation. It yielded the same pattern, but the racial disparity was less pronounced. Sentences of black males were 14.5% longer than whites, rather than nearly 20%.
Jeff Ulmer, a sociology professor at Pennsylvania State University, described the commission's latest report as an improvement but said it was "a long way from proving that [judicial discretion] has caused greater black-white federal sentencing disparity."
For reasons that will be obvious if you click through to the story, I especially enjoyed this companion piece appearing at the WSJ Law Blog under the headline "After 'Anonymous' Attack, Sentencing Body Seeks Blogger's Help."
Recent related post:
- US Sentencing Commission releases (and provides on-line here only) new Booker report
- Summary of key USSC findings in its big new Booker report
February 15, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, February 04, 2013
"Colorado Capital Punishment: An Empirical Study"The title of this post is the title of this paper now up at SSRN by Justin F. Marceau, Sam Kamin and Wanda Foglia. Here is the abstract:
This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010. Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers. More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.
We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.
These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder. The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors. The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment. Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.
I do not think one needs to be a sophisticated empiricist to have an inkling, based on the quality and quantity of support for the death penalty expressed in some comments, that not all readers of this blog with feel compelled to reach the same constitutional conclusion reached by these authors concerning Colorado's modern experience with capital punishment.
February 4, 2013 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Friday, February 01, 2013
Summary of key USSC findings in its big new Booker report
As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link. Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.
Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter. Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:
 The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
 The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.
 For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.
 The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.
 For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
Prosecutorial practices have contributed to disparities in federal sentencing.
 Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.
 Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.
 Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.
I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial. Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings. For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities. (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)
All these key findings should and likely will engender lots of discussion and debate in the weeks ahead. For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention). As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point. I have a feeling, though, that others may have distinct views.
Recent related post:
February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Saturday, January 12, 2013
New resource on location of death sentences handed down in 2012I was intrigued to see this new information and resource on the top of the Death Penalty Information Center website:
The Death Penalty Information Center is pleased to offer a new resource page on death sentences in 2012. Seventy-seven (77) people were sentenced to death in 2012, the second lowest number of sentences since the death penalty was reinstated in 1976. Of those sentenced, 3 were women; 48% were black; 40% were white. Four states (FL, CA, TX, and PA) were responsible for 66% of the death sentences, and only 9 counties produced over a third of the death sentences in the country. Information is provided on the name, race, state, and county for each defendant. A downloadablle spreadsheet enables sorting by each of these categories. Click here for our Death Sentences in 2012 page.
Monday, December 24, 2012
Latest USSC data on retroactivity of crack guidelines reduced by FSA
I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity." The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."
Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive. That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).
Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons. The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data.
Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around. If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.
December 24, 2012 in Detailed sentencing data, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Tuesday, December 18, 2012
DPIC reports slight uptick in number of death sentences imposed in 2012The Death Penalty Information Center released its year-end report on death penalty developments today, and the full eight-page report is available at this link. This press release from DPIC about the report echoes its theme of the death penalty in decline by making these points at the outset:
Only nine states carried out executions this year, equaling the fewest number of states to do so in 20 years, according to a new report released today by the Death Penalty Information Center (DPIC). More than half of the states (29) either have no death penalty or have not carried out an execution in five years. The number of executions in 2012 (43) was 56 percent less than the peak in 1999 and equal to last year’s total.
The number of new death sentences in 2012 was the second lowest since the death penalty was reinstated in 1976. Seventy-eight people were sentenced to death in 2012, representing a 75 percent decline since 1996 when there were 315 sentences.
Many death penalty states with histories of high use had no new death sentences or no executions in 2012. North Carolina, South Carolina, and Virginia (which is second to Texas in total executions since 1976) had no death sentences and no executions. No executions were carried out in Alabama, Georgia, Louisiana, or Missouri.
“Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states. It is very likely that more states will take up the question of death penalty repeal in the years ahead.”
Especially as compared to death penalty's modern heyday in the United States (which roughly corresponds to the half-decade following the oklahoma City bombing and President Bill Clinton's second term in office), this basic narrative of the capital punishment in decline is accurate. But as my post headline and the graphic above notes, the very latest developments suggest a flattening out of the declining trend.
Despite the controversy over the Troy Davis execution and the initiative repeal effort in California this year, there was still apparently a slight uptick in the total number of death sentences imposed throughout the United States. And, as the data from DPIC here reveal, the 43 executions in 2012 is right around the average number of yearly executions throughout the United States over the past half-decade. Thus, assuming recent capital past is prologue, we can and should reasonably predict on average six or seven death sentences and three or four executions every month in the United States for the foreseeable future.
On a related front, I wonder if anyone has any good data on the number of LWOP sentences imposed in 2012 or before. I have long worried that a small reduction in death sentences imposed within a jurisdiction might sometimes result in disproportionately large increase in the number of LWOP sentences in that jurisdiction. I do not have rigorous data to back up my concerns here, and I would be grateful for any information anyone may have about relationships between death sentencing trends and imprisonment trends in 2012 or before.
Monday, December 17, 2012
BJS releases official accounting of "Prisoners in 2011" in the United StatesAs reported in this official press release, the US Justice Department’s Bureau of Justice Statistics this morning released its official accounting of the total population of prisons as of the end of 2011. Here are a few data highlights via the press release:
Twenty-six state departments of corrections reported decreases in their prison population during 2011, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. California reported the largest decline (down 15,493), while New Jersey, New York, Michigan, Florida, and Texas each had population decreases of more than 1,000 prisoners in 2011.
Among states that had increases in their prison populations, Tennessee and Kentucky both added more than 1,000 inmates in 2011. During 2011, the total U.S. prison population declined for the second consecutive year, to under 1.6 million inmates or 15,023 fewer inmates than in 2010. This represents a 0.9 percent decrease in the total prison population.
The overall decline in 2011 was due to the decrease in state prisoners, down 21,614 prisoners or 1.5 percent from 2010. The reduction in California’s prison population under the Public Safety Realignment policy accounted for 72 percent of the total decrease in state prisoners. The federal prison population offset the decline in the states with an increase of 6,591 prisoners (up 3.1 percent) from 2010 to 2011.
As in 2010, prison releases in 2011 (688,384) exceeded prison admissions (668,800). Admissions to federal prisons increased 12 percent (up 6,513 inmates) in 2011 while state prison admissions decreased 6.4 percent (down 41,511 inmates) from 2010. The number of admissions to state prisons (608,166) fell to its lowest level since 2001. Sixty-three percent (26,340 admissions) of the decrease in state prison admissions between 2010 and 2011 was due to fewer parole violators being reincarcerated.
In 2011 the U.S. imprisonment rate dropped to 492 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents. The national imprisonment rate for males (932 per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (65 per 100,000 female U.S. residents)....
In 2010 (the most recent data available) 53 percent of sentenced state prisoners were serving time for a violent offense, 18 percent for property offenses, 17 percent for drug crimes and 10 percent for public order offenses, such as weapons, drunk driving, commercialized vice and court offenses.
An estimated 188,200 sentenced state prisoners (14 percent) were serving time for murder or manslaughter in 2010, while 160,800 offenders were incarcerated for rape and other sexual assaults. Between 2000 and 2010, the estimated number of state prisoners sentenced for any violent offense increased by 99,400 inmates, or 16 percent (from 625,600 prisoners in 2000 to 725,000 in 2010).
Inmates sentenced for drug offenses comprised 48 percent (94,600 inmates) of the sentenced federal prison population in 2011, while 7.6 percent of federal prisoners were held for violent offenses. An estimated 11 percent (22,100 inmates) were serving time in federal prison for immigration offenses.
Because imprisonment, especially at the margins, always seems to me to be a very expensive way to try to reduce crime, I am pleased to see that the prison population in the US went down a bit in 2011. But, significantly, it seems most of the national prison population decrease can be attributed to the Plata litigation and subsequent realignment in California. Absent significant prison population reductions in other states in 2012, it is possible that the national prison population in the land of the free could tick back up soon (thanks, in large part, to the seemingly ever-growing federal prison population).
The full 34-page BJS report "Prisoners in 2011," which has lots and lots of interesting data, is available at this link. Among other interesting information, this new report reveals that, as of the end of 2011, the five largest prison systems in population terms are, in order, the feds, Texas, California, Florida and Georgia.
Thursday, November 29, 2012
Latest BJS data report 2011 decline in US prison and overall correction populationsAccording the latest, greatest official numbers from the Bureau of Justice Statistics, the total population subject to criminal justice control in the US declined (again) in 2011. This press release from BJS sets out the basics:
About 6.98 million people were under some form of adult correctional supervision in the U.S. at yearend 2011, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. This was the equivalent of about one in 34 U.S. adults (or about 2.9 percent of the adult population) in prison or jail or on probation or parole, the lowest rate of adults under correctional supervision observed since 2000.
The adult correctional population declined by 1.4 percent or 98,900 offenders during 2011. This was the third consecutive year of decline in the number of offenders under the supervision of adult correctional authorities....
At yearend 2011, about 4,814,200 offenders were supervised in the community on probation or parole, and 2,239,800 were incarcerated in state or federal prisons or local jails. About one in 50 adults was under community supervision while about one in 107 adults was in prison or jail.
While both the community supervision population (down 1.5 percent) and the incarcerated population (down 1.3 percent) decreased during 2011, the majority of the decline (83 percent) in the total number of adults under correctional supervision during the year was due to a drop in the probation population. The probation population declined two percent or by 81,800 offenders during 2011, falling below four million for the first time since 2002.
For the third consecutive year, the number of offenders discharged from probation supervision (about 2.2 million offenders) exceeded the number who entered probation (about 2.1 million) during 2011, contributing to the decrease in the probation population....
An increase in the parole population partially offset declines in all other components of the adult correctional population. The parole population increased 1.6 percent or by 13,300 offenders during 2011. The state parole population increased 1.1 percent and the federal parole population grew 5.1 percent during the year....
The failure rate of parolees (defined as the percentage of parolees who were returned to jail or prison out of all parolees who could have been incarcerated at any point during the year) decreased for the fifth consecutive year. During 2011, about 12 percent of parolees at risk of reincarceration were incarcerated at some time during the year, down from about 15 percent during 2006.
All these data and so much more can be found in these two official new reports from BJS: Correctional Populations in the United States, 2011; and Probation and Parole in the United States, 2011
Wednesday, November 28, 2012
"The Micro and Macro Causes of Prison Growth"The title of this post is the title of this very interesting paper on prison growth now on SSRN and authored by the always astute John Pfaff. Here is the abstract:
This paper explores both "who" has driven up US prison populations in recent years and "why" this growth has occurred. At least since the early 1990s, the "who" appears to primarily be prosecutors. Crime and arrests have fallen, and the percent of felony cases resulting in admissions and time served once admitted have been flat. But the probability that an arrest results in a felony charge has gone up significantly. (Limitations in data prevent us from examining the role of filing decisions before 1994.)
As for the "why," this paper provides some evidence that, at least since the crime drop began, increases in prison spending appear to track increases in state budgets fairly closely, suggesting that increased fiscal capacity is an important causal factor. It also looks at the politics-of-crime theories and explains that all previous efforts are unsatisfactory because they have focused on state and federal actors. Prosecutors, who are driving prison growth, are county officials, and it is unclear that state- and national-level political theories explain more-local outcomes.
Sunday, November 04, 2012
"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:
Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws. The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates. The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.
This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature. We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages. We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges. We address the problem of disentangling trends using a rigorous method called regression discontinuity design. We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker. Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.
November 4, 2012 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, November 02, 2012
Record-high government-sponsored departure rate in latest quarter of post-Booker data
Late yesterday, I got this e-mail alert via the US Sentencing Commission:
The United States Sentencing Commission's Preliminary Quarterly Data Report for the third quarter of fiscal year 2012 is now available on the Commission's website [at this link]. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first three quarters of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Only late today did I finally get a chance to look through these new numbers and the only big story within is what I highlighted via the title of this post coming from Table 4 of this big quarterly data report: during the third quarter of FY 2012 (which runs from April 1 to June 30), the rate of government-sponsored departures hit a record high of 28.7%. For some statistical context, the average rate of government-sponsored departures post-Gall has generally been under 26% (although the last six quarters all show rates above that modern historical average).
Interestingly, though the rate of non-government-sponsored below-guideline sentences has actaully declined each of the last three quarter, the rate of within-guideline sentencing hit a modern record low of 53.1% in the third quarter of FY 2012 because of the record-high rate of government-sponsored departures during this period.
The first sensible explanation I can devise for this latest data is that they reflect the impact of the Justice Department's decision way back in January (reported here and here) to authorize so-called "fast-track" departures in all districts, not just in a select few pre-authorized fast-track districts. I suspect that this decision may have led not only to an uptick in government-sponsored fast-track departures, but perhaps also some other types of "government-sponsored" departures in plea agreements for those who might not quite fit the standard fast-track criteria.
Wednesday, September 26, 2012
A review of the year that was 2011 in federal sentencingThe US Sentencing Commission has this week released this basic report "Overview of Federal Criminal Cases, Fiscal Year 2011." Though there is no new remarkable data in this report, this overview provides an effective reminder of what the (still growing) massive federal sentencing system is all about. Here is part of the start of the report:
The United States Sentencing Commission received information on 86,361 federal criminal cases in which the offender was sentenced in fiscal year 2011. Among these cases, 86,201 involved an individual offender and 160 involved a corporation or “organizational” offender....
The vast majority of the cases reported to the Commission involve an individual defendant. Over the last decade, the number of these cases has increased every year except one. In fiscal year 2011, the increase was 2.7 percent over the number of such cases in fiscal year 2010. Cases involving immigration, drugs, fraud, or firearms continue to be the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors. These four crime types have been the most common for the last decade. In fiscal year 2011, these crimes accounted for 83.0 percent of all cases reported to the Commission.
Immigration cases continued to be the fastest growing segment of cases in the federal system. In fiscal year 2011, there were 29,717 immigration cases reported to the Commission, an increase of 1,213 cases from the prior fiscal year. In the last ten fiscal years, the number of cases of this type has increased by 153.2 percent, while the total federal caseload has grown by 33.9 percent....
The number of drug cases has been relatively stable over the last five fiscal years, but because of the overall increase in federal cases, the portion of the criminal caseload attributable to those cases decreased to 29.1 percent in fiscal year 2011.... Firearms cases were 9.2 percent of the caseload in fiscal year 2011, a decrease of 2.4 percentage points from five years ago. The proportion of fraud cases over that period also was relatively stable at 9.8 percent in fiscal year 2011, but has declined slightly from 10.7 percent in fiscal year 2007....
The vast majority of convicted defendants plead guilty. In fiscal year 2011, more than 96 percent of all offenders did so, a rate that has been largely the same for ten years. When offenders pled guilty, 44.0 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 61 percent (61.5%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
A little simple division brings a little more perspective to these number: with more than 86,000 federal sentencings of individuals in FY2011, the system averaged over 1,650 sentencings per week and thus more than 330 federal sentencing per federal work-day. Put even more starkly, in the 15 minutes it took me to put together this post, on average 10 more persons were sentenced by the federal district judges.
Tuesday, September 11, 2012
"Estimating Gender Disparities in Federal Criminal Cases"The title of this post is the title of this great-looking new paper by Sonja Starr, which is now available via SSRN. Here is the abstract:
I have long found that, in both the classroom and in other settings, discussion of discretion and disparity in the criminal justice treatment of different genders can often foster more dynamic and less polarizing discusson than when the focus is on race. For this reason (and many others), I hope to soon find time to consume this important new article and may well comment on it further.
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.
Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.
Tuesday, August 14, 2012
New USSC report provides data on federal sentencing realities
The US Sentencing Commission recently published this interesting and effective little document titled simply "Overview of Federal Criminal Cases, Fiscal Year 2010." Here are one of many passages that should interest federal sentencing data junkies:
Until fiscal year 2009, drug offenses had been the most common federal crime during the 20 years for which the Commission has released sentencing data. In fiscal year 2010, 25,043 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug. Of these, 1,025 offenders were convicted of an offense involving simple possession of a drug.
Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 43.6 percent of the offenders sentenced under the Chapter Two drug guidelines. These cases were almost evenly split between offenses involving crack cocaine (20.1%) and offenses involving powder cocaine (23.5%).
Marijuana cases were the next most common, representing 26.0 percent of all drug crimes. In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases. Drug offenses involving methamphetamine represented 17.7 percent of all drug crimes. Heroin cases were the least common of the major drug offenses, accounting for 6.7 percent of all drug crimes.
Monday, July 16, 2012
Exciting new data and resources from US Sentencing Commission
Via e-mail, I have today received this exciting news concerning new materials and data available from the US Sentencing Commission via its website:
The United States Sentencing Commission today introduces its new Interactive Sourcebook. The Interactive Sourcebook allows users to re-create and customize the tables and figures presented in the Commission's printed Sourcebooks of Federal Sentencing Statistics, and contains additional viewing options and tables not published in the printed Sourcebooks. Please view the Interactive Sourcebook Features Guide to learn how to use the site. For more information, view the Frequently Asked Questions.
The United States Sentencing Commission's Preliminary Quarterly Data Report for the second quarter of fiscal year 2012 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Friday, July 06, 2012
Federal sentencing data junkies rejoice: USSC creates new "Research and Statistics Page"
A helpful reader reminded me that I had not yet spotlighted with the justified fanfare and blog firework that the US Sentencing Commission has just rolled out this awesome new page on its website, which is excitingly titled the "Research and Statistics Page." Here is how the USSC explains the new website offering: "This page contains content from the Commission's former Research and Data and Statistics pages. It also features new content, including the Commission's annual individual offender datafiles and prison and sentencing impact assessments."
Helpfully, the reader who made sure I posting these USSC developments, also sent me this terrific and insightful account of why the "prison and sentencing impact assessments" (which appear on this new special webpage) merit significant attention:
The Commission finally is publishing prison impact assessments. While it only has the assessments for this amendment cycle, hopefully it will publish retroactively (and should be encouraged to do so).
Such data are very useful, if for nothing else than to get some idea of the real-world effects amendments to the FSGs have. If data show very little impact, then not a lot of fuss should be given to them (and frankly, we should wonder why such amendments even would be necessary). In contrast, those amendments with a projected significant impact should be more thoroughly vetted/reviewed/criticized, and the actual prison effects should be followed (most especially where there is a net impact on prisons, i.e., more beds needed). And, of course, when a politically unpopular amendment is under consideration, if it also lowers the number of beds to be utilizied, then the cost-savings can make an otherwise bitter pill easier to swallow.
BTW, from what I understand, the model used to do these assessments goes all the way back to the late 80s and hasn’t been update since (nor an empirical assessment of how well the model predicts the impact). So, with such data available now, this additional area of study is available.
I agree completely with these sentiments, and I will add that another exciting aspect of the USSC's new data page is an icon which indicates that the Commission is developing an "Interactive Sourcebook." I am hopeful and cautiously optimistic that such a resource can and will make it much easier for both academics and practitioners to get quick and helpful federal sentencing data on an array of intricate subtopics.
Kudos to everyone at the USSC for getting this new data page up and running and also (in advance) to any and everyone else who helps me identify the latest and greatest data to mine from the page.
UPDATE: A different helpful reader has told me that the penultimate sentence in the quoted e-mail above contains misinformation and that the USSC's prison impact model is, in fact, regularly updated. Troublesomely, I cannot effectively assess who has the story right about this "insider" debate over the USSC data. But I can say that even questionable data is better than no data, so I just care that the USSC has made this data available no matter its precision.
Tuesday, June 19, 2012
Latest death row data on shows spike in percentage of condemned Latinos
Via this DPIC posting, I see that the NAACP Legal Defense Fund now has some notable updated data on condemned inmates via its Death Row USA publication available here. The DPIC posting summarizes highlights of this data in this way:
The latest edition of the NAACP Legal Defense Fund's Death Row USA shows a decrease of 19 inmates between January 1 and April 1, 2012. Over the last decade, the total population of state and federal death rows has decreased significantly, from 3,682 inmates in 2000 to 3,170 inmates as of April 2012. California continues to have the largest death row population (724), followed by Florida (407), Texas (308), Pennsylvania (204), and Alabama (200). Neither California nor Pennsylvania have carried out an execution in the past six years.
The report includes information on the race of death row inmates. Although the overall population of death row has decreased since 2000, the percentage of Latino inmates facing execution has been steadily increasing. In 1991, Latinos made up 6% of the nation's death row. In 2012, Latinos or Latinas comprised 12.4% of death row inmates. In jurisdictions having 10 or more inmates on death row, the states with the highest percent of Latino/Latina death row inmates are Nebraska (45%), Texas (29%) and California (23%). The report also contains statistics on executions and an overview of recent legal developments related to capital punishment.
Wednesday, June 06, 2012
"Time Served: The High Cost, Low Return of Longer Prison Terms"
The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.
Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.
Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.
Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender -- or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.
The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.
Almost all states increased length of stay over the last two decades, though that varied widely from state to state. In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.
A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences.
The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.
This press release from the Pew folks includes these additional details from the report:
Though almost all states increased length of stay over the last two decades, the overall change varied widely between states. Among 35 reporting states representing nearly 90 percent of 2009 prison releases, time served rose most rapidly in Florida, where terms grew by 166 percent and cost an extra $1.4 billion in 2009. Prison terms increased in Virginia by 91 percent, North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced their overall time served, including Illinois (25 percent) and South Dakota (24 percent).
Among prisoners released in 2009 from the reporting states, Michigan had the longest overall average time served, at 4.3 years, followed by Pennsylvania (3.8 years). South Dakota had the shortest average time served at 1.3 years, followed by Tennessee (1.9 years). The national average time served was 2.9 years.
Tuesday, April 03, 2012
"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers. Here is the abstract:
The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.
April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Wednesday, March 28, 2012
Latest USSC quarterly data show slight downtick in within-guideline sentences
I am pleased to report that the US Sentencing Commission, fresh on the heels of releasing lots of complete Fiscal Year 2011 federal sentencing data (as reported here), today has released on its website the latest, greatest, freshest new quarterly sentencing data. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY12 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 28, 2012)
The new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Most notably, after the last two quarters revealed a slight uptick in the total number of within-guideline sentences (mostly as a result of a slight decrease in the number of judge-initiated below-guideline sentences), these 1st Quarter FY12 data shows a new downtick in within-guideline sentences, though mostly as a result of an increase in the number of prosecutor-initiated below-guideline sentences.
Monday, March 26, 2012
US Sentencing Commission releases new annual report and sourcebook of federal sentencing stats
Though I continue to have a severe case of March Madness thanks to my Buckeyes making it to the Final Four, the US Sentencing Commission has just posted some new goodies on its website that would also enable me to have a severe case of federal sentencing data madness. Specifically, here's what now available for download via the USSC's website:
The 2011 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2011. See the Commission's 2011 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
I hope to see if there are any interesting stories to mine from these new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is more of note in these new USSC documents.
UPDATE on 3/27: I just received this email notice of an additional release from the USSC concerning its most up-to-date full-year data runs:
The United States Sentencing Commission's Final Quarterly Data Report for fiscal year 2011 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Wednesday, March 07, 2012
Notable FPD fact sheet says "TRAC Analysis of Variations in Sentencing Misses the Mark"
The afternoon I received an effective brief "Fact Sheet" produced by some federal public defenders which discusses limits on the federal sentencing data released by TRAC earlier this week. The full two-page fact sheet, which is titled "TRAC Analysis of Variations in Sentencing Misses the Mark" and can be downloaded below, gets started this way:
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing.” The press release accompanying TRAC’s report stated it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Media reports claimed “widely disparate sentences for similar crimes.” (AP)
The data released by TRAC might in the future shed light on federal sentencing, but its initial analyses, and media coverage, demonstrate the danger of a little knowledge about a complex subject. TRAC’s analysis fails to meet minimal academic standards and should not be a basis for policy making.
The cases sentenced by the judges in the study are not similar.
- The only similarity among the cases sentenced in each district is that prosecutors categorized them as “drug,” “white collar,” etc. All other case differences are ignored. Heroin or marijuana cases, involving 1 gram or 1 ton, are all called “similar” drug cases. First-time offenders are lumped with lifetime criminals.
- Academic researchers studying disparity use data from the U. S. Sentencing Commission to categorize cases along dozens of different variables, but this data was not used in TRAC’s analysis.
The intra-district comparisons intended to control for differences among cases are flawed.
- The study compared median (half below, half above) sentences among judges in a particular district, on the assumption that these judges sentenced similar types of cases. But this is often untrue.
- Many districts have several courthouses in different cities, which sentence very different types of crimes. Average sentences should be different among judges who sentence different types of offenses and offenders.
- Academic researchers faced with this problem are careful to compare only judges in the same courthouse who are part of the same random case assignment pool. This helps compensate for individual case differences in the long run.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
- Trying to unpack the new federal sentencing data from TRAC
Monday, March 05, 2012
Trying to unpack the new federal sentencing data from TRAC
As reported in prior posts here and here, the folks at the Transactional Records Access Clearinghouse (aka TRAC) have assembled important new data on federal sentencing outcomes which includes information (linked here, but requiring a subscription) on sentencing outcomes for nearly every federal judge over the last five years. The New York Times has this new article about the TRAC data, which is headlined "Wide Sentencing Disparity Found Among US Judges," and highlights some more of the backstory concerning why the new TRAC data is so notable:
The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary....
Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers.
In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005.
The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government.
The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.
Unfortunately, based only on the publicly available materials set out by TRAC here in this simple report, I find it extremely hard to reach any new or refined views or conclusions about post-Booker sentencing practices. It seems that one must purchase a TRAC subscription to be only able even to understand the nature and potential limits of the data that TRAC has assembled concerning the sentencings of individual judges. Moreover, based on the TRAC reporting, I fear that the TRAC data only includes final sentencing outcomes and lacks any refined information about applicable mandatory minimums, calculated guideline ranges, offender criminal histories and other obviously relevant considerations that may be driving different sentencing patterns in different sets of cases.
Notably, at the end of the TRAC report, the folks at TRAC praise their justifiably praise their data compilation efforts with this comment: "TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts." I very much like this sentiment, and hope in the days and weeks ahead to see judges, law schools, scholars, public interest groups, Congress and others trying to unpack the TRAC data so we can all better understand and assess what it may be telling us.
Recent related posts:
- New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
- "Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
"Surprising Judge-to-Judge Variations Documented In Federal Sentencing"
As previously "previewed" in this post, today the Transactional Records Access Clearinghouse (aka TRAC) has released important new data and a report concerning federal sentencing practices in recent years. This TRAC report, which carries the same title as this post, is now available at this link, and it gets started this way:
An analysis of more than 370,000 cases completed in the nation's federal courts during the last five years has documented extensive and hard-to-explain differences in the sentencing practices by the judges working in many federal districts.
This first-of-its-kind, judge-by-judge review by the Transactional Records Access Clearinghouse (TRAC) of federal sentences imposed for drugs, white collar and other kinds of crimes from FY 2007 to FY 2011 indicates that the typical sentence handed down by a federal district court judge can be very different than the typical sentences handed down for similar cases by other judges in that same district. This finding raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.
Caution. A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is "just." No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.
But a fair court system also requires "equal justice" under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.
There is a whole lot here to consume and discuss in this TRAC report, and I hope to discuss what I see as soon as I get back from my afternoon class and have time to consume it.
Recent related post:
Sunday, March 04, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...
Thursday, January 26, 2012
"The Price of Prisons: What Incarceration Costs Taxpayers"
The title of this post is the title of this important new (and relatively brief) report from the Vera Institute of Justice, which aspires to provide a complete picture of state prison costs to taxpayers. Here is the text of the e-mail blast I received about the report:
A newly released study by a team of Vera researchers calculates—for the first time—the full cost of prisons to taxpayers, including costs outside states’ corrections budgets. The Price of Prisons: What Incarceration Costs Taxpayers—published today—shows that in 40 participating states the aggregate cost of prisons in FY2010 was $38.8 billion, $5.4 billion more than their corrections budgets reflected.
Individually, states’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut. Detailed fact sheets for each of the 40 participating states are available [at this link].
The Price of Prisons is a joint product of Vera’s Center on Sentencing and Corrections and its Cost-Benefit Analysis Unit, and was conducted in partnership with the Public Safety Performance Project of the Pew Center on the States.
Sunday, January 08, 2012
Interesting new data on operation of death penalty in Connecticut
Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State. First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:
This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination. My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut. The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.
Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony. Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.
Second, from the start and end of the NYT editorial:
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....
Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study. But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional. A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.
Thursday, December 15, 2011
Latest official BJS numbers show historic modern decrease in prison population
Proving once again the aphorism that what goes up (and up and up and up) must eventually come down, this new press release reports on a notable new development concerning modern prison populations:
The Bureau of Justice Statistics (BJS) reported today that the number of offenders under adult correctional supervision in the U.S. declined 1.3 percent in 2010, the second consecutive year of decline since BJS began reporting on this population in 1980. At yearend 2010, about 7.1 million people, or 1 in 33 adults, were under the supervision of adult correctional authorities in the U.S.
In addition, the total U.S. prison population fell to 1.6 million at yearend 2010, a decline of 0.6 percent during the year, the first decline in the total prison population in nearly four decades. This decline was due to a decrease of 10,881 in the number of state prisoners, which fell to just under 1.4 million persons and was the largest yearly decrease since 1977. The federal prison population grew by 0.8 percent (1,653 prisoners) to reach 209,771, the smallest percentage increase since 1980....
During 2010, prison releases (708,677) exceeded prison admissions (703,798). The decrease in commitments into state prison, especially the 3.3 percent decrease in the number committed from the courts on a new sentence, was responsible for the decline in the state prison population. The time that offenders entering state prison could expect to serve on a commitment, about 2 years, remained relatively stable between 2009 and 2010, which indicates that the decline in the state prison population during the year was the result of a decrease in admissions.
Half of state departments of corrections reported decreases in their prison population during 2010. California (down 6,213) and Georgia (down 4,207) reported the largest decreases, followed by New York (down 2,031) and Michigan (down 1,365). Illinois (up 3,257) reported the largest increase, followed by Texas (up 2,400) and Arkansas (up 996).
In 2010, the U.S. imprisonment rate dropped to 497 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents. The national imprisonment rate for males (938 per 100,000 male U.S. residents) was about 14 times the imprisonment rate for females (67 per 100,000 female U.S. residents).
Among offender age groups, about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.
All of these interesting data and lots and lots more appear this pair of new documents:
I cannot overstate how excited I am to learn that, at the same time that US crime rates continue to hit record modern lows, we are also seeing a decrease in the number of persons incarcerated throughout the country. And I hope and trust that all readers, no matter what their perspective on sentencing law and policy, will also see this news as cause for celebration.
DPIC year-end report indicates record-low number of US death sentences in 2011
The Death Penalty Information Center has just released its always notable year-end report for 2011, which can be accessed here. The report carries this lengthy sub-title: "Illinois Abolition, Oregon Moratorium, and Troy Davis Execution Highlight Growing Concerns About Death Penalty; Executions Decline, Death Sentences Fall Well Below 100." As the title to this post reveals, I think the most notable and important part of the 2011 story is the significant decline in death sentences as discussed in these passages from the report:
Death sentences continued their sharp decline since the 1990s. The number of new death sentences imposed in 2011 stands at 78, a decline of about 75% since 1996, when 315 inmates were sentenced to death. This is the lowest number of death sentences in any year since the death penalty was reinstated in 1976. Texas, which had 48 new death sentences in 1999, had only 8 this year.
California, the state with the largest death row, saw its death sentences drop by more than half this year -- 10 compared with 29 in 2010 (at least 2 other cases resulted in a jury verdict of death, but the judge has not imposed the sentence). Many death penalty states, such as Maryland, South Carolina, Missouri and Indiana had no new death sentences in 2011. The South and West combined for 87% of the death sentences, while the Midwest and Northeast had 12%.
The annual number of death sentences began declining after 1998. In the 1990s there were close to 300 death sentences annually. Since then, the number has dropped steadily, as the risks of executing the innocent grew more apparent and life without parole sentences became more common. In every region of the country, death sentences have declined, which eventually will affect the number of executions.
Couple points of follow-up to detail some of my thoughts about this part of the story:
1. Though innocence concerns and an LWOP alternative definitely help explain why the national death sentences have declined "about 75% since 1996," these factors do not alone strike me as a sufficient explanation for the big dip in death sentences from 2010 (with 112 death sentences nationwide) to 2011 (with only 78 death sentences). As reflected in this effective Wall Street Journal article about this DPIC report, I suspect the high costs of prosecuting capital cases is prompting fewer prosecutors to seek death sentences and/or more prosecutors being willing to accept plea deals that take death off the table after a capital indictment.
2. I seriously doubt that a decline of the national number of death sentences, unless and until the number gets into teens, "will affect the number of executions" anytime soon. There are still well over 3000 murderers on death row right now, which means the US could have more than five decades of executions at the now-common pace of around 50 executions (and 10 death sentence reversals) each year even if there were zero new death sentences over the next half-century. In addition, there are reasons to believe that many of the newer death sentences in recent years are "better" (i.e., less likely to be reversed) because prosecutors, jurors and judges are not seeking or imposing death sentences in more questionable cases.
3. Speaking of execution rates and death sentences, the latest DPIC data highlight that the yearly execution numbers lately are principally a function of how quickly and how often Texas, Ohio, Alabama, Georgia, Florida and a few other serious death penalty states get murderers from death row to the execution chamber. These five states alone already have nearly 1200 murderers condemned to die, which means these five states alone could sustain a pace of, say, thirty executions per year until the year 2050 without the imposition of any new executions over that time. And if California with its more than 700 condemned murderers were ever to get seriously back into the execution business (which I very much doubt)....
Monday, December 05, 2011
US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Fourth Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 5, 2011)
As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.
These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)
Monday, October 31, 2011
The US Sentencing Commission new mega-report on mandatory minimums now available
I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System." This official press release provides the basics on this important report:
Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.
Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.
Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):
- More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty.
- More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
- Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
- Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
- Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
- Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.
The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link. Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.
October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, October 07, 2011
Eighth Circuit panel unanimously affirms dismissal of challenges to Arkansas execution protocol
Earlier today, an Eighth Circuit panel handed down an opinion in Williams v. Hobbs, No. 10-1573 (8th Cir. Oct. 7, 2011) (available here), which rejects various claims by death row prisoners in Arkansas concerning the state's execution plans. Here is how the opinion starts:
Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.
Wednesday, September 07, 2011
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Friday, August 05, 2011
"On the Chopping Block: State Prison Closings"
The title of this post is the title of this timely new little report from The Sentencing Project. The report spotlights that at least 13 states have closed or are considering closing correctional facilities this year, and includes a detailed chart on state prison closings. The report begins this way:
As a result of recent policy changes and pressures brought on by the fiscal crisis, state lawmakers are closing prisons after 40 years of record prison expansion. Declining prison populations in a number of states have resulted in excess prison capacity. During 2010, the Bureau of Justice Statistics reported the first decline in the overall state prison population since 1977 and found 24 states had reduced prison populations during 2009. In 2011 at least thirteen states have closed prison institutions or are contemplating doing so, potentially reducing prison capacity by over 13,900 beds. Since 2002, Michigan has led the nation in this regard. The state has closed 21 facilities, including prison camps, as a result of sentencing and parole reforms. Overall, the state has reduced capacity by over 12,000 beds for a total cost savings of $339 million.
Other states, including New Jersey and Kansas, have also closed prisons in recent years amid changes in sentencing policy and parole decision making that have resulted in a decline in state prison populations. Maryland also reduced prison capacity when it closed the Maryland House of Corrections in 2007 by transferring 850 prisoners to other prisons.
Wednesday, August 03, 2011
Split Sixth Circuit reverses federal death sentence on interesting grounds
A long and quite interesting Sixth Circuit opinion handed down today in US v. Gabrion, No. 02-1386 (6th Cir. Aug. 3, 2011) (available here), covers a lot of issues relating to the federal death penalty in the course of affirming a conviction and revering the death sentence. This start to the partial dissent by Chief Judge Batchelder provides an effective summary of the majority ruling and the enduring points of disagreement within the panel:
I would affirm the district court in its entirety — both conviction and sentence. Therefore, I concur generally in the portions of the majority’s decision that affirm the judgment of the district court without necessarily joining the majority’s reasoning or discussion. I agree that we need not reach the issue contained in Section XIV but I do not join in the associated dicta. I respectfully dissent from those portions of the majority’s decision that reverse the district court, specifically Sections II and III.
In Section II, the majority conducts a de novoreview of Gabrion’s claim that the district court misinterpreted or misapplied certain provisions of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591—3598. By reading the word “any” in § 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a mitigating factor”) as unqualified and unlimited, the majority holds that these provisions mandate that a capital defendant may offer to the jury any “mitigating” evidence or argument, i.e., any evidence or argument that could conceivably make a juror question the appropriateness of the death penalty. Reading “any” as unlimited necessarily requires the inclusion within these two provisions of Michigan’s policy against the death penalty. The majority therefore concludes that the district court erred by excluding reference to Michigan law.
In Section III, the majority considers Gabrion’s claim that the district court violated his constitutional right to due process by misinstructing the jury on the burden of proof in the weighing of aggravating and mitigating factors, and again conducts a de novo review. The district court instructed the jury that it need only find that the aggravating factors “sufficiently outweigh” the mitigating factors, which is language quoted directly from the statute. See § 3593(e). The majority finds the statutory language unacceptably vague, and therefore constitutionally infirm, and holds that a sentencing court must instruct the penalty-phase jury that it may impose the death penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
I must respectfully disagree with both of these holdings. I would hold that a reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case. Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury. I would affirm the district court.
Shouldn't we be surprised Baze settled so little about lethal injection protocols?
The question in the title of this post is prompted by some new headlines and stories out of Florida and Tennessee reports on-going lethal injection litigation: from Florida here we have "Judge hearing challenge to Fla. execution drug"; from Tennessee here we have "Tennessee Executions on Hold." Moreover, as regular readers know, both the federal government and Ohio are in the midst of a de facto execution moratoria as they seek to shore up their lethal injection protocol and practices (background here and here). And California, the state with the largest death row, seems no closer to resuming executions today than it did five years ago.
I am not at all surprised that attorneys for murderers on death row continue to press vigorously any and all plausible constitutional challenges to lethal injection protocols a full three years after the Supreme Court seemingly important Baze ruling which approved Kentucky's execution protocol. But I am quite surprised that these constitutional challenges continue to be having so much traction in lower courts and continue to hinder the ability of so many states to resume executions.
In short, though I knew the Baze ruling wouldn't resolve or shut down most lethal injection litigation, I expected that this litigation would be a much smaller part of the national death penalty story over time. And yet, the opposite almost seems to be the case (though this may be more a product of recent practical challenges in getting key lethal injection drugs rather than litigation realities).
Do readers share my surprise on this front? Was I just wrong to suspect the 2008 Supreme Court ruling in Baze could and would be a significant turning point in this uniquely modern death penalty story? Are there some important broader lessons — concerning the administration of the death penalty in the United States or concerning the limits of SCOTUS jurisprudence — to be drawn from these realities?