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 (12) | 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.