Friday, February 16, 2018

New GAO report explores "Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism"

The United States Government Accountability Office yesterday released this lengthy report with the title that is the quoted portion of the title of this post.  This "Highlights" page summarizes "What GAO Found":

About two-thirds of inmates with a serious mental illness in the Department of Justice's (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses — drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent) — as of May 27, 2017.  GAO's analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.  GAO also analyzed available data on three selected states' inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates.  BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require.  BOP does track costs associated with mental health care services system-wide and by institution.  System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.  The six state departments of corrections each used different methods and provided GAO with estimates for different types of mental health care costs.  For example, two states provided average per-inmate costs of incarceration for mental health treatment units where some inmates with serious mental illness are treated; however, these included costs for inmates without serious mental illness housed in those units.

DOJ, Department of Health and Human Service's Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness.  The framework calls for correctional agencies to assess individuals' recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending.  To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care.  BOP and the six states also identified strategies for reducing recidivism consistent with this guidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care.  Further, GAO's literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

February 16, 2018 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

Thursday, February 15, 2018

Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?

As noted in this post last week, the ABA House of Delegates earlier this month asked for all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger.  But, as the title of this post wonders, the push for raising the age on limits on the death penalty could be impacted by the horrible crimes committed yesterday in Florida.  This article, "Suspect in Florida shooting could face death penalty for 17 counts of premeditated murder," provide these basics:

Nikolas Cruz, the suspect in the shooting at a Florida high school on Wednesday, could face the death penalty after being charged with 17 counts of premeditated murder.

Sheriffs in Broward County posted custody records online Thursday, the morning after they arrested Cruz. They listed 17 separate counts of premeditated murder, matching the latest casualty figures from officials.

Cruz, 19, will stand trial as an adult. In Florida, a judge can impose the death penalty if a sentencing jury unanimously recommends it.

I am not at all surprised that Cruz may soon be facing the death penalty, and I will not be at all surprised if supports of the death penalty will make Cruz a poster-child example of why the age for death penalty eligibility ought not be raised.

A few prior related posts:

February 15, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (37)

"Aching bad: 'Kingpin Granny' nicked in huge prescription drugs bust"

As a fan of Breaking Bad, I could not resist using the title of this news report of a notable drug dealer as the title of this post.  Here is the story:

Silver surfers are known to rattle from the numerous pills foisted on them by doctors as their health fails, but one Tennessee veteran stands accused of possessing drugs with an altogether different purpose.

Dubbed "Kingpin Granny" by Decatur County cops, The Smoking Gun reported that 75 year-old wheelchair-bound Betty Jean Jordan was arrested at her home in Parsons, 160km (100 miles) southwest of Nashville, on Friday following an undercover investigation in which agents bought tabs from her.

The subsequent raid on the gangster granny's property uncovered over a thousand pills including the opioid painkiller Oxycodone, smack addict weaner Methadone and anti-anxiety tranq Xanax. Cops also said they seized more than $12,000 in "cash and assets".

Jordan was slapped with six felony narcotic charges – one count of drug manufacturing/delivery/sale, two counts of possession of a prescription drug with intent, one count of possession of a prescription drug – plus one count of evading arrest.

The little old lady was taken to the county slammer but was released after posting the $50,000 bond. Meanwhile, authorities are further investigating the alleged distribution ring and hope to make more arrests.

February 15, 2018 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

Wednesday, February 14, 2018

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, February 13, 2018

Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies

Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.

I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham.  That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains.  Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:

Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.

Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.

February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Brain Development, Social Context and Justice Policy"

The title of this post is the title of this new paper available via SSRN authored by Elizabeth Scott, Natasha Duell and Laurence Steinberg. Here is its abstract:

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime.  But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend.  This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct.  Instead the decision to offend, like much behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context.  The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior.

Brain development in adolescence is associated with reward-seeking behavior and limited future orientation.  Further, as compared to adults, adolescents are particularly sensitive to external stimuli (particularly peers), easily aroused emotionally, and less able to regulate strong emotions.  The Article shows how these tendencies may be manifested in different teenagers in different ways, depending on many factors in the social context.  By analyzing this intricate relationship, the Article clarifies how social environment influences adolescent choices in ways that incline or deter involvement in crime and in other risky behavior.  Thus a teenager who lives in a high-crime neighborhood with many antisocial peers is more likely to get involved in criminal activity than one in a neighborhood with few such peers, even though the two may not differ in their tendencies and propensities for risk-taking.

The Article’s interactive model offers powerful support for laws and policies that subject adolescent offenders to more lenient sanctions than adults receive and that tailor dispositions to juveniles’ developmental needs.  Our examination confirms and illuminates the Supreme Court’s conclusion that juvenile offenders differ in important ways from adult counterparts; juveniles deserve less punishment because their offenses are driven by biological and psychological immaturity, and also because, as legal minors, they cannot extricate themselves from social contexts (neighborhoods, schools and families) that contribute- to involvement in crime.  The model also confirms that correctional facilities and programs, which constitute young offenders’ social settings, can support healthy development to adulthood in individual offenders, or affect their lives in harmful ways.

February 13, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Saturday, February 10, 2018

Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?

Mf-law-day-bbf-3-5-4-15-300x160In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation."  This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:

A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies.  Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks.  She was ordered to pay $15,246 in restitution.

Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment.  Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."

In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant.  He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."

Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country.  Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison.  The unusual order — first reported by The Oklahoman — attracted national and international attention.  The judge has been both praised and condemned.

"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination."  The judge Thursday did not directly comment on the public criticism.

He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."

The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.

Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said.  She pleaded guilty last year to one federal counterfeiting offense.  She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.

She has prior theft and counterfeit check convictions in county courts but always received probation.  She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.

She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....

"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.

This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:

If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make.  The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized.  She will receive a shorter sentence because she made that decision.  But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue.  Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.

Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.

As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence. 

I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress.  But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior.  The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.

That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here.  But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.

Prior related post:

February 10, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Thursday, February 08, 2018

Should (encouraged!?!) sterilization be a permissible federal sentencing factor in mitigation?

The question in the title of this post is prompted by a remarkable federal sentencing story out of Oklahoma reported in this local article headlined "Woman underwent sterilization procedure at judge’s suggestion." Here are the details:

At a judge's suggestion, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children.

Summer Thyme Creel, 34, had the elective procedure in November after the judge wrote he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday in Oklahoma City federal court.

U.S. District Judge Stephen Friot made the unusual suggestion in an order last June. He noted in the order Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. "I spoke with her in detail about it and she voluntarily wanted to do it," her court-appointed defense attorney, Brett Behenna, said.

A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. "Creel not only has a fundamental constitutional right to procreate ... but she admits that she had an interest in an elective sterilization procedure even before the court's order of June 16," Assistant U.S. Attorney Jessica Perry told the judge in a sentencing memo.

"Furthermore, Creel's decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence," the prosecutor wrote.

Creel has a lengthy criminal record involving theft and counterfeit check crimes. She is listed in court records over the last two years at addresses in Oklahoma City, Checotah and Lawton. She was charged for the first time in federal court in 2016. A federal grand jury alleged she and others participated in a counterfeit ring that relied on mail stolen from mailboxes.

Creel pleaded guilty a year ago to a single count in the indictment for using a $202.22 counterfeit check at a Walmart in Moore in 2014. Her sentencing has been delayed for a number of reasons, the first time because she couldn't show up in court. She was in the Oklahoma County jail for using a counterfeit check at a Hobby Lobby in Midwest City....

In delaying the sentence the first time, the judge made note of both Creel's criminal past and her history as a mother. "By virtue of a series of relationships with various sires over approximately the last 14 years, Ms. Creel has given birth to seven children out of wedlock," the judge wrote in the June order.

"Comparing the dates of Ms. Creel's periods of habitual use of crack cocaine and methamphetamine ... with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel's children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances," the judge wrote.

"It comes as no surprise, therefore, that, in 2012, Ms. Creel relinquished her parental rights with respect to six of her seven children 'after an Oklahoma Department of Human Services investigation for failure to protect the children from harm.' Her seventh child was born in 2016," the judge wrote.

The judge then pointed out he can consider at sentencing any information concerning the background, character and conduct of an offender. Finally, he told Creel in his order that at her sentencing she "may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation."

The June order referenced in this story, which runs only two pages, can be accessed at this link.  It closes by noting that Congress has provided via 18 U,S.C § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I am inclined also to note that in 18 U.S.C § 3553(a)(1) Congress ordered federal judges to consider "the history and characteristics of the defendant" at sentencing.  So there is certainly a statutory basis for Judge Friot to defend his approach to Ms. Creel's case.  I am eager to hear readers' thoughts as to whether Judge Friot's approach is sound and wise even if it may be statutorily defensible.

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, February 06, 2018

ABA House of Delegates enacts resolution urging prohibition of death penalty's application to those under 21

Images (5)As reported in this ABA Journal posting, the "ABA House of Delegates on Monday asked all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger." Here is more:

In the report accompanying the resolution, the chairs of the Death Penalty Due Process Review Project and the Section of Civil Rights and Social Justice wrote: “In light of this evolution of both the scientific and legal understanding surrounding young criminal defendants and broader changes to the death penalty landscape, it is now time for the ABA to revise its dated position and support the exclusion of individuals who were 21 years old or younger at the time of their crime.”

The language of Resolution 111 makes clear that the ABA is not taking a position “supporting or opposing the death penalty.”

In a motion to amend, Robert L. Weinberg, a past president of the District of Columbia Bar and the Bar Association of the District of Columbia, proposed removing that language. He brought up a CLE session held earlier during this midyear meeting by Cassandra Stubbs of the ACLU Capital Punishment Project. “We stand almost alone among the progressive democracies in adhering to capital punishment,” he said....

Michael Byowitz, the Board of Governors’ liaison to the Death Penalty Due Process Review Project, rose to speak in opposition to Weinberg’s amendment.... Byowitz said marginal efforts chipping away at the use of the death penalty are the most effective ways of addressing the problem. “We will be ignored if we are perceived in many of the councils that matter as against the death penalty,” he said. “Let’s not let the perfect be the enemy of the good.”...

The amendment was defeated in a divided vote. Resolution 111 was passed overwhelmingly.

The full Resolution and Report can be accessed at this link.  The report runs a dozen pages and concludes this way:

In the decades since the ABA adopted its policy opposing capital punishment for individuals under the age of 18, legal, scientific and societial developments strip the continued application of the death penalty against individuals in late adolescence of its moral or constitutional justification.  The rationale supporting the bans on executing either juveniles, as advanced in Roper v. Simmons, or individuals with intellectual disabilities, as set forth in Atkins v. Virginia, also apply to offenders who are 21 years old or younger when they commit their crimes.  Thus, this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders.

In adopting this revised position, the ABA still acknowledges the need to impose serious and severe punishment on these individuals when they take the life of another person.  Yet at the same time, this policy makes clear our recognition that individuals in late adolescence, in light of their ongoing neurological development, are not among the worst of the worst offenders, for whom the death penalty must be reserved.

February 6, 2018 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (3)

Advocating for postpartum mental illness to be an express mitigating sentencing factor

The Hill has this notable new sentencing commentary authored by doctors Katherine Wisner and Cara Angelotta headlined "Accounting for postpartum depression in criminal sentencing is the right move." Here are excerpts:

A new Illinois law is set to take effect this summer that will specifically address the legal culpability of women who commit criminal acts during episodes of severe postpartum mental illness.  This is the first law of its kind in the U.S., and as perinatal and forensic psychiatrists, we applaud this legislation and urge other states to follow.

This new law takes the unprecedented step of specifically highlighting postpartum mental illness as a potential mitigating factor for judges to consider in determining an appropriate punishment for a crime.

Once enacted, the state law will allow women who were convicted of a felony, but who did not have evidence of postpartum mental illness presented at their trial or sentencing, to apply for post-conviction sentence reduction.  Practically, this means that women in prison for crimes that were directly related to symptoms of undiagnosed or untreated postpartum mental illness now have a legal mechanism to apply to the courts for a lesser sentence.

The law provides hope for the possibility of treatment, rather than punishment, for women who were convicted without consideration of the devastating effects of postpartum mental illness on behavior.

This legislation is in line with the longstanding Infanticide Act of 1938 in the United Kingdom, which limits the charge for killing an infant to manslaughter, not murder, if the act occurred when the woman’s “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”...

The Illinois legislation is unique because it creates a legal definition of postpartum mental illness. Postpartum depression was defined in the law’s text as "a mood disorder which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.”...

To be sure, we all have strong emotional reactions to the injury or killing of an infant by a mentally ill mother. The criminal acts in this law apply to forcible felonies, which involve violence or the threat of physical force or violence to any individual, not only the infant but other family members or strangers. But, coupled with the miracle of new life comes the risk for multiple maternal complications, including mental illness, anemia, nausea and vomiting, hypertension, gestational diabetes, excess weight gain, pregnancy loss, cesarean delivery and anesthesia complications.

Perinatal mood and anxiety disorders are associated with increased risks of maternal and infant mortality and morbidity and are recognized as a significant maternal safety issue. The pregnancy-related death rate in the United States has steadily increased across the past three decades — evidence of another risk pregnant women face....

This law specifically identified perinatal (occurring during pregnancy or postpartum) psychiatric disorders as mitigating factors.  We urge support for legislation that incorporates both pregnancy and childbirth and their complications as mitigating factors in crimes committed during postpartum mental disorders in all states.

February 6, 2018 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (5)

"The Fatal Flaw in John R. Lott Jr.’s Study on Illegal Immigrant Crime in Arizona"

A few weeks ago, I posted here a link to an empirical study authored by John Lott titled "Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona."  Today I saw this posting at Cato responding to Lott's study authored by Alex Nowrasteh under the title that is the title of this post.  The response claims that Lott misinterpreted the most important variable in his study, and it starts and ends this way (with links from the original):

Economist John R. Lott Jr. of the Crime Prevention Research Center released a working paper in which he purports to find that illegal immigrants in Arizona from 1985 through 2017 have a far higher prison admissions rate than U.S. citizens.  Media from Fox News to the Washington Times and the Arizona Republic have reported on Lott’s claims while Attorney General Jeff Sessions and Representative Paul Gosar (R-AZ) have echoed them from their positions of authority.  However, Lott made a small but fatal error that undermines his finding. 

Lott wrote his paper based on a dataset he obtained from the Arizona Department of Corrections (ADC) that lists all admitted prisoners in the state of Arizona from 1985 to 2017. According to Lott, the data allowed him to identify “whether they [the prisoners] are illegal or legal residents.”  This is where Lott made his small error: The dataset does not allow him or anybody else to identify illegal immigrants.

The variable that Lott focused on is “CITIZEN.”  That variable is broken down into seven categories. Lott erroneously assumed that the third category, called “non-US citizen and deportable,” only counted illegal immigrants.  That is not true, non-US citizen and deportable immigrants are not all illegal immigrants.  A significant proportion of non-U.S. citizens who are deported every year are legal immigrants who violate the terms of their visas in one way or the other, frequently by committing crimes.  According to the American Immigration Council, about 10 percent of people deported annually are Lawful Permanent Residents or green card holders — and that doesn’t include the non-immigrants on other visas who were lawfully present in the United States and then deported. I will write more about this below. 

Lott mistakenly chose a variable that combines an unknown number of legal immigrants with an unknown number of illegal immigrants.  Lott correctly observed that “[l]umping together documented and undocumented immigrants (and often naturalized citizens) may mean combining very different groups of people.”  Unfortunately, the variable he chose also lumped together legal immigrants and illegal immigrants.

The criminologist who sent me the ADC data also sent along a more detailed dataset for the stock of prisoners in Arizona for June 2017.  This newer dataset’s CITIZEN variable is just as unusable as the same variable in the 1985 to 2017 dataset but it has an additional variable that allowed us to somewhat better identify incarcerated illegal immigrants: whether the prisoner has an Immigration and Customs Enforcement (ICE) detainer....

The equivalent of the “non-U.S. citizens and deportable” variable in the June 2017 ADC database is called “criminal aliens,” another category that is not synonymous with illegal immigrants.  In Arizona’s ADC regulations, the government first determines whether a prisoner is a criminal alien and then investigates whether he or she is an illegal immigrant. In June 2017, only 38.3 percent of criminal aliens had ICE detainers on them and, thus, were more likely to be illegal immigrants.  As a back-of-the-envelope estimation, I assumed that 38.3 percent of “non-U.S citizens and deportable” are actually illegal immigrants in the ADC’s larger 1985-2017 dataset.  This back-of-the-envelope calculation turns Lott’s finding on its head.  Whereas he found that 11.1 percent of the admissions to Arizona prisons in 2014 were illegal immigrants, the real percentage is a maximum of 4.3 percent, below the 4.9 percent estimated illegal immigrant share of the state’s population. 

Lott’s controversial empirical findings regarding the high admission rate of illegal immigrants to Arizona prisons, a finding that contradicts virtually the entire body of research on the topic, stems from his simple misreading of a variable in the 1985-2017 ADC dataset.  Lott thought that “non-U.S. citizens and deportable” describes only illegal immigrants but it does not.  There is no way to identify illegal immigrants with precision in the 1985-2017 ADC dataset and their population can only be estimated through the residual statistical methods that Lott derides as “primitive.”  Using another variable in the June 2017 ADC dataset that Lott did not analyze reveals that, at worst, illegal immigrants in Arizona likely have an incarceration rate lower than their percentage of that state’s population. 

Prior related post:

February 6, 2018 in National and State Crime Data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Monday, February 05, 2018

Georgia Supreme Court refuses to extend Miller Eighth Amendment limits on juve sentencing to non-LWOP sentences

A helpful colleague made sure I saw the new short ruling on juvenile sentencing limits handed down by the Supreme Court of Georgia today in Veal v. Georgia, No. S17A1758 (Ga. Feb. 5, 2018) (available here). Here is the meat of the opinion in Veal:

Citing OCGA § 42-9-39(c), appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release.  Given his life expectancy, appellant states that even this new sentence is unconstitutional because it amounts to a de facto LWOP sentence, again without any determination of the factors set forth in Veal I which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime. Appellant asserts that reading the Miller and Montgomery Supreme Court opinions as applying only to actual LWOP sentences elevates form over substance and permits the label of the sentence to supersede the actual result of the imposed sentence.

Appellant acknowledges that he is asking this Court to expand the holdings of the Miller and Montgomery Supreme Court opinions.  As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to determine if that person is one of the exceptionally rare juveniles for whom such a sentence is appropriate because of “a specific determination that he is irreparably corrupt.”  Veal I, supra, 298 Ga. at 702.  But neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes.  See Miller, supra, at 465.  Appellant points to courts in other jurisdictions that have found Miller-like protections are required for a prison sentence imposed upon a juvenile that exceeds the individual’s life expectancy.  See, e.g., State v. Zuber, 152 A3d 197 (N.J. 2017); State v. Null, 836 NW2d 41 (Iowa 2013) (holding under the Iowa constitution that “an offender sentenced to a lengthy term-ofyears sentence should not be worse off than an offender sentenced to life in prison without parole who has the benefit of an individualized hearing under Miller”).  On the other hand, other state and federal courts have determined that Miller and Montgomery do not apply to cases that do not involve LWOP sentences but nevertheless involve sentences that, according to the convicted juvenile, are the functional equivalent to a life sentence without the opportunity for parole.  See, e.g., Starks v. Easterling, 659 Fed. Appx. 277 (6th Cir. 2016); Bell v. Nogan, 2016 WL 4620369 (D.N.J. Sept. 6, 2016); People v. Sanchez, 2013 WL 3209690 (Cal. Ct. App. June 25, 2013).

Because the Supreme Court has not expanded its mandate that the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies to juvenile offenders requires a sentencer to consider a juvenile’s youth and its attendant characteristics before imposing a sentence other than LWOP, this Court will not do so.  Although appellant mentions “the analogous provision of the Georgia Constitution” in his enumerations of error, he offers no argument or citation of authority whatsoever regarding the application of the Georgia Constitution to the case.  We therefore deem any state constitutional claim abandoned.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Examining whether juve life with parole in Maryland really means a real chance at parole

This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come.  Here are excerpts:

Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs.  He laid the phone on a bed.  From the other end of the line, his girlfriend heard voices.  Then, sharp banging and doors slamming, followed by groans and gurgling.

The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat.  Bowie was a high school dropout, fueled by drugs and anger.  He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.

Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”

Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.

Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18.  Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.

“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill.  I’m not the same person I was.”

His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system.  Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.

The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature.  He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.

The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....

“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.

The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”

Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days.  In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007.  Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.

Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.

More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life.  Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers.  But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.

“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.

The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, February 03, 2018

"As Patriots, we support juvenile justice reform"

TeamLogoThe title of this post is the headline of this notable new opinion piece in the Boston Globe authored by Devin McCourty, a New England Patriot player, and New England Patriots' owner Robert Kraft and his son Jonathan Kraft. Here are excerpts:

The New England Patriots represent a six-state region and we are grateful for many things, including our region’s national leadership in improving our justice systems, especially for children and youth. The Patriots organization cares about the safety of our communities and we know the best place to start is with our youngest members.  If we get it right with our youth, they will become our future leaders, neighbors, and trusted colleagues.

In some ways, we are ahead of the game.  All six New England states recognize the importance of accountability, but children are not adults and should not be treated as such. Each state has a separate juvenile justice system that aims to provide rehabilitative, developmentally appropriate responses for kids who have made bad choices.

While we have made strides in this area, there is still plenty of room for improvement as we search for the appropriate age range for the juvenile justice system. Unfortunately, we end up sweeping in kids who are too young, and then we exclude older teens who would benefit the most.  Right now, the Massachusetts juvenile system applies to youth ages 7 through 17.  This means 7-year-olds who are in the first grade — children reading “Green Eggs and Ham” — can be arrested, prosecuted, and confined.  Yet, 18-year-olds who are still in high school are automatically charged as adults and excluded from the juvenile system, regardless of the crime.

This age range is an outdated policy that compromises public safety.  It should be obvious that very young children cannot understand the court process and lack the reasoning to participate fully in their own defense.  In fact, mere exposure to the justice system can be particularly harmful — both to them and to society.  Seven-year-olds would be better served by agencies like child welfare or mental health.

As for the upper age of the juvenile system, research shows what any parent knows — that celebrating an 18th birthday does not magically transform everyone into a mature adult.  The physical, emotional, and practical transition from childhood to adulthood is a lengthy process, stretching into the mid-20s. ...

Sadly, it is our most vulnerable youth — children of color — who bear the brunt of our misguided age policies.  Black and Hispanic youth become system-involved at shockingly disproportionate rates that cannot be explained by differences in behavior.  In Massachusetts, children of color constitute approximately one-third of the state’s youth population, but two-thirds of those committed to the state youth correctional agency.  Although there are no Massachusetts data publicly available for 18-year-olds, we know that the national rate of incarceration in 2012 was more than nine times greater for black males ages 18 to 19 than for white males.

This issue of the age of juvenile jurisdiction takes on particular importance as New England struggles with a sweeping drug epidemic.  A recent report by the Columbia University Justice Lab revealed that substance-related offenses in Massachusetts are the leading cause of arrests for 18-year-olds, that two-thirds of people in treatment for opioid addiction started using opioids before age 25, and that opioids accounted for more than a quarter of all fatalities in the 18 to 24 age group.  To avoid such tragedies, we can begin by including late teens in the much smaller, individualized treatment-oriented juvenile justice system. That will give us a better chance of preventing and addressing substance use disorders for the youth who are the most vulnerable to addiction and its consequences.

We strongly support the proposal being considered by the Massachusetts Legislature that would first raise the lower age of juvenile jurisdiction from 7 to 12, and second, raise the upper age from 18 to 19.  Both moves would constitute more appropriate and effective responses to the needs of our youth. We also support Vermont and Connecticut in their ongoing efforts to consider and adopt similar proposals.

February 3, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Thursday, February 01, 2018

"Mass Incarceration: New Jim Crow, Class War, or Both?"

The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:

Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration.  My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison.  After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....

This study takes a careful account of class and how it relates to race and incarceration rates.  Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders.  The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable.  The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.

To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race.  It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways.  For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education.  These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.

On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.

February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, January 30, 2018

"Expansion of the Federal Safety Valve for Mandatory Minimum Sentences"

Download (7)The title of this post is the title of this relative short "Issue Brief" from FreedomWorks authored by Jason Pye and Sarah Anderson. The five-page document provides a basic overview of the federal statutory safety valve in 18 U.S.C. § 3553(f) which, as the brief explains, provides "an exception to mandatory minimum sentences for nonviolent drug offenders with little to no criminal history." Here are excerpts:

The Sentencing Reform Act, Sentencing Reform and Corrections Act, and the Smarter Sentencing Act proposed an expansion of eligibility for the safety valve by increasing the number of criminal history points an offender may have on his or her record.  The safety valve does not prevent an eligible offender from serving time in prison.  It does, however, reduce overcrowding and allows the limited number of prison beds to be used for violent criminals.  The safety valve also restores a partial measure of judicial discretion, allowing a judge to sentence below a statutory mandatory minimum, should the judge believe the sentence is too harsh for the offense committed....

Since the creation of the federal safety valve, more than 80,000 federal offenders have received fairer, more just sentences.  These lesser sentences for nonviolent, low-level drug offenders allow limited prison resources to be used on violent, repeat offenders who are true threats to public safety....

The proposed changes to the federal code to expand the safety valve to offenders who have up to three or four criminal history points, with exceptions for some of those points coming from more serious or violent offenses, is a modest, common sense change.  Nothing in the safety valve prevents judges from sentencing prisoners at or above the mandatory minimum even if they are eligible for the safety valve, but simply allows judicial discretion to ensure that prison resources are being used where they can best protect public safety, and not wasted on nonviolent, low-level drug offenders.

In the 115th Congress, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has reintroduced the Sentencing Reform and Correction Act and Sen. Mike Lee (R-Utah) has reintroduced the Smarter Sentencing Act, both of which include an expansion of the federal safety valve.  Although the Sentencing Reform Act has not yet been reintroduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins (R-Ga.) would serve as a likely vehicle for sentencing reforms similar to those found in the Sentencing Reform Act.

Should the House Judiciary Committee markup the Prison Reform and Redemption Act, FreedomWorks urges the committee to include an expansion of the federal safety valve that would allow judicial discretion in sentencing qualifying offenders to ensure that lengthy sentences and prison resources are spent on criminals who represent a serious threat to our communities. 

In addition to being a helpful review by a notable organization of one piece of the federal sentencing system, this document strikes me a timely and astute effort to start building the case for incorporating at least a little bit sentencing reform into the prison reform efforts that now are gaining steam in Congress. Because it appears to have the blessing of Prez Trump and maybe even Attorney General Sessions, the Prison Reform and Redemption Act right now looks like the proposed federal legislation with the greatest chance of enactment. This Issue Brief wisely highlights why it would be a wise decision to add a modest sentencing reform provision into that proposal.

January 30, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 29, 2018

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

January 29, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Saturday, January 27, 2018

"Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana"

Download (6)The title of this post is the title of this short interesting document produced by the Campaign for the Fair Sentencing of Youth. I recommend the whole document, and here are excerpts (with endnotes removed):

On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.

When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since Montgomery was decided, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform.

More than 250 individuals previously serving life without parole for crimes committed as children are now free.  Collectively, they have served thousands of years in prison. These former juvenile lifers now have the chance to contribute meaningfully to their communities....

Henry Montgomery, the petitioner in Montgomery v. Louisiana, remains incarcerated.  The U.S. Supreme Court recognized Mr. Montgomery’s “evolution from a troubled, misguided youth to a model member of the prison community.” Montgomery was resentenced and is now eligible for parole, but because of delays at the parole board and prosecutor opposition, the 71-year-old remains in prison, where he has been since 1963.

Children of color are disproportionately sentenced to life without parole.  When Montgomery was decided, over 70 percent of all individuals serving JLWOP were people of color. These extreme disparities have persisted during the resentencing process following Montgomery, underscoring the racially disparate imposition of JLWOP....

For the approximately 1,300 individuals whose unconstitutional JLWOP sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility. This means that most individuals who were unconstitutionally sent to die in prison as children will not be eligible for review or release until at least their 40s. Although Montgomery suggested that providing review after 25 years is an avenue for minimal compliance with Miller, these lengthy sentences continue to violate international human rights standards and far outstrip terms of incarceration for youth in the rest of the developed world.

UPDATE: A helpful tweet led me to think this is a good place to note that the Juvenile Sentencing Project has lots of great juve LWOP/Graham and Miller resources detailing responsive legislation and significant state case law and leading reseach reports.  That Project also helps maintain this great national map that enables one to see how many juve LWOP prisoners were in each state at the time of Miller and now.

January 27, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Thursday, January 25, 2018

Might some members of SCOTUS want to take up juve sentencing case to limit reach of Graham and Miller?

The question in the title of this post is prompted by this little news item from Wyoming headlined "Wyo asks US Supreme Court to review juvenile murder sentence." Here are the basics:

Wyoming is asking the U.S. Supreme Court to review a Wyoming Supreme Court decision to overturn a minimum 52-year prison sentence for a teen who, as a juvenile, shot and killed a man and injured several others in a Cheyenne park in 2014.

Last August, the Wyoming Supreme Court ordered Phillip Sam re-sentenced, saying his minimum 25-year sentence for first-degree murder followed by a 27-year sentence for aggravated assault effectively constituted a life sentence....

Attorney General Peter Michael argued in his Jan. 4 petition that the practical effect of the state Supreme Court order would be that juveniles could commit additional crimes without additional punishment.

I blogged here about the notable opinion handed down by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here).  I know there have been a lot of opinions from juve offenders looking to extend the reach of Graham and Miller, none of which have yet been granted. I am not sure if there have been many state appeals on Graham and Miller, and I am also not sure if there might be some Justices eager to wade into this arena.

UPDATE:  Coincidentally, SCOTUSblog here has Wyoming v. Sam as its "Petition of the Day."  The full petition sets forth this sole Question Presented:

When a juvenile is sentenced for murder and other violent crimes, does the Eighth Amendment limit a judge to an aggregate term of years that allows a meaningful opportunity for release even though none of the separate sentences are cruel and unusual?

January 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"How IQ Tests Are Perverted to Justify the Death Penalty"

The title of this post is the headline of this new Pacific Standard commentary.  Here are excerpts:

The Supreme Court has slowly been carving out exemptions to the death penalty for people with intellectual disabilities.  In 2002, the Supreme Court ruled in Atkins v. Virginia that people with intellectual disabilities could not be executed, but left it up to the states to determine who is or is not eligible for that protection.  In 2014, in Hall v. Florida, the court ruled that a state can't use a simple IQ cut-off.  Then, in last year's Moore v. Texas, the court ruled that states must consider the best psychiatric and medical information about disability when determining disabled status.  Still, IQ testing continues to play a major role, with a threshold of around 70 serving as the cutoff score, below which a person cannot legally be executed.

Here's where "ethnic adjustments" come in.  The practice, as documented by attorney Robert Sanger in a 2015 article in the American University Law Review [available here], adjusts IQ scores upward for people of color convicted of capital crimes.  According to Sanger, prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio have all used ethnic adjustments to successfully impose the death penalty on people who otherwise might have been deemed exempt.  In his article, Sanger works methodically through case after case, noting in particular the role played by expert witnesses for the prosecution, who testify to the racial biases of IQ testing. In most cases, these experts have never met the person convicted of the capital crime or assessed that person for disability, even as their testimony clears the way for execution.

At the end of his article, Sanger writes, "The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound.  In fact, when looked at more closely, it is a wonder how the practice has gone largely unchallenged over the last few years."  When I spoke to him over the phone, Sanger confirmed to me that no clear constitutional challenge to the practice has emerged to his knowledge, and certainly not at the United States Supreme Court, or in California, where he practices law.

January 25, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, January 17, 2018

"Breaking Down Barriers: Experiments into Policies That Might Incentivize Employers to Hire Ex-Offenders"

The title of this post is the title of this notable new Rand Corporation research report. Here is its summary and some of its key findings and recommendations:

The rate of criminal punishment in the United States has had far-reaching economic consequences, in large part because people with criminal records are marginalized within the labor market. Given these negative economic implications, federal, state and local officials have developed a host of policies to encourage employers to hire ex-offenders, with varying degrees of success.  To inform policies and programs aimed at improving employment rates for ex-offenders, we examined employer preferences regarding policy options targeted to incentivize hiring individuals with one nonviolent felony conviction.

In our experiments, we found employers were 69 percent more likely to consider hiring an ex-offender if a hiring agency also provides a guaranteed replacement worker in the event the ex-offender was deemed unsuitable and 53 percent more likely to hire an ex-offender who can provide a certificate of validated positive previous work performance history.  Having consistent transportation provided by a hiring agency increased the likelihood of being considered for hire by 33 percent. 

Employers also were found to be 30 percent more likely to consider an ex-offender for hire if the government increases the tax credit from 25 percent of the worker’s wages (up to $2,500) to 40 percent (up to $5,000) — double the current maximum amount allowed by the Work Opportunity Tax Credit — and 24 percent more likely to hire an ex-offender if the government completed all tax-related paperwork.

Key Findings

Worker Replacement and Fee Discounts Increase Hiring Prospects for Ex-Offenders...

Tax Credits Have a Similarly Positive Effect...

Employer Access to Previous Performance Could Factor into Hiring...

Recommendations

  • Staffing agencies and reentry or reintegration programs could increase the likelihood of employment for people with a criminal record if they guarantee prospective employers a replacement employee.
  • State policymakers should consider expanding post-conviction certification programs. Across both the tax credit and staffing agency discount experiments, employers demonstrate a clear preference for wanting to know whether an ex-offender job candidate has a consistent work history and verifiable positive employment references versus simply knowing whether the person follows company codes of conduct.
  • Tax agencies should consider reducing the paperwork that companies have to fill out for credits. Government agencies could also consider providing help to prepare and submit the forms.
  • Ensuring reliable transportation to and from a job site for candidates with a criminal record increases the likelihood an employer will support hiring such individuals. As with reducing paperwork, the impact of this policy is more limited than many of our other tested policy features.

January 17, 2018 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Friday, January 12, 2018

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, January 10, 2018

BJS releases "Prisoners in 2016" reporting another drop in state and federal prison populations in 2016

As reported in this press release, the "number of prisoners in state and federal correctional facilities fell by 1 percent from year-end 2015 to 2016, the Bureau of Justice Statistics announced today. This was the third consecutive year that the U.S. prison population declined." here is more from the release:

State and federal prisons held an estimated 1,505,400 prisoners in 2016, 21,200 fewer than in 2015. The population of the Federal Bureau of Prisons (BOP) accounted for more than a third (34 percent) of the total change in the prison population, dropping by 7,300 prisoners, from 196,500 to 189,200 prisoners. Although the overall prison population decreased, the number of prisoners held in private facilities increased 2 percent in 2016

State and federal prisons admitted 2,300 fewer prisoners in 2016 than in 2015. The BOP accounted for the majority (96 percent) of the decline, down 2,200 admissions.

More than half (54 percent) of state prisoners were serving sentences for violent offenses at year-end 2015, the most recent year for which data were available. Nearly half (47 percent) of federal prisoners had been sentenced for drug offenses as of Sept. 30, 2016, the most recent date for which federal offense data were available. More than 99 percent of those drug sentences were for trafficking.

In 2016, the rate at which people were sentenced to more than one year in state or federal prison (imprisonment rate) was the lowest since 1997. There were 450 prisoners per 100,000 U.S. residents held in state and federal prisons in 2016, compared to 444 prisoners per 100,000 in 1997.

The imprisonment rate decreased for non-Hispanic adult black, non-Hispanic adult white and adult Hispanic prisoners from 2015 to 2016. The rate of imprisonment decreased 4 percent for black adults (from 1,670 to 1,608 per 100,000), 2 percent for white adults (from 281 to 274 per 100,000) and 1 percent for adult Hispanic prisoners (from 862 to 856 per 100,000).

During the decade between 2006 and 2016, the rate of imprisonment decreased 29 percent for black adults, 15 percent for white adults and 20 percent for Hispanic adults.

The full 36-page BJS report, excitingly titled Prisoners in 2016 and full of data of all sorts, is available at this link.

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

Tuesday, January 09, 2018

Taking a close look at the state of women's incarceration in the states

Women_overtime_select_statesThe very fine folks at the Prison Policy Initiative have a very fine new report on incarceration rates and populations for women in the United States.  The report is titled "The Gender Divide: Tracking women’s state prison growth," and the full report is a must read for anyone interested in prison population data and/or the importance of analyzing modern criminal justice systems with gendered sophistication. Here are excerpts from the start and end of the report: 

The story of women’s prison growth has been obscured by overly broad discussions of the “total” prison population for too long. This report sheds more light on women in the era of mass incarceration by tracking prison population trends since 1978 for all 50 states. The analysis identifies places where recent reforms appear to have had a disparate effect on women, and offers states recommendations to reverse mass incarceration for women alongside men.

Across the country, we find a disturbing gender disparity in recent prison population trends. While recent reforms have reduced the total number of people in state prisons since 2009, almost all of the decrease has been among men. Looking deeper into the state-specific data, we can identify the states driving the disparity.

In 35 states, women’s population numbers have fared worse than men’s, and in a few extraordinary states, women’s prison populations have even grown enough to counteract reductions in the men’s population. Too often, states undermine their commitment to criminal justice reform by ignoring women’s incarceration.

Women have become the fastest-growing segment of the incarcerated population, but despite recent interest in the alarming national trend, few people know what’s happening in their own states. Examining these state trends is critical for making the state-level policy choices that will dictate the future of mass incarceration.

Nationally, women’s incarceration trends have generally tracked with the overall growth of the incarcerated population. Just as we see in the total population, the number of women locked up for violations of state and local laws has skyrocketed since the late 1970s, while the federal prison population hasn’t changed nearly as dramatically. These trends clearly demonstrate that state and local policies have driven the mass incarceration of women.

There are a few important differences between men’s and women’s national incarceration patterns over time.  For example, jails play a particularly significant role in women’s incarceration (see sidebar, “The role of local jails”). And although women represent a small fraction of all incarcerated people, women’s prison populations have seen much higher relative growth than men’s since 1978. Nationwide, women’s state prison populations grew 834% over nearly 40 years — more than double the pace of the growth among men.

While the national trend provides helpful context, it also obscures a tremendous amount of state-to-state variation.  The change in women’s state prison incarceration rates has actually been much smaller in some places, like Maine, and far more dramatic in others, like Oklahoma and Arizona. A few states, including California, New York, and New Jersey, reversed course and began decarcerating state prisons years ago. The wide variation in state trends underscores the need to examine state-level data when making criminal justice policy decisions....

The mass incarceration of women is harmful, wasteful, and counterproductive; that much is clear.  But the nation’s understanding of women’s incarceration suffers from the relative scarcity of gender-specific data, analysis, and discourse.  As the number of women in prisons and jails continues to rise in many states — even as the number of men falls — understanding this dramatic growth becomes more urgent.  What policies fuel continued growth today?  What part does jail growth play?  Where is change needed most now, and what kinds of changes will help? This report and the state data it provides lay the groundwork for states to engage these critical questions as they take deliberate and decisive action to reverse prison growth.

January 9, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, January 05, 2018

In prelude to federal prosecution, killer of Kate Steinle gets three-year sentence on sole state count of conviction

As reported in this local article, "the Mexican national accused of shooting Pleasanton native Kate Steinle was sentenced today to three years in prison but will not serve any more time in state custody because of credit for time served." Here is more:

Jose Ines Garcia Zarate, 54, will now be handed over to federal authorities to be prosecuted again.

After a four-week trial that drew national attention, a jury in November acquitted the undocumented immigrant of murder, involuntary manslaughter and assault with a semiautomatic firearm in the July 2015 shooting of Steinle on San Francisco’s Pier 14. But jurors convicted him of being a felon in possession of a firearm.

Judge Samuel Feng this morning sentenced Garcia Zarate, who has already spent two and a half years in jail waiting for his trial, to time served on his possession conviction.

Garcia Zarate’s defense team urged Feng to throw it out, arguing that the jury received improper instructions about the charge. But Feng denied the motion this morning at San Francisco’s Hall of Justice....

In the coming days, Garcia Zarate will be arraigned in federal court, where he faces similar charges of being a convicted felon and an illegal immigrant in possession of a firearm.

His defense attorneys have argued that the shooting was an accident, suggesting that Garcia Zarate found the gun on the pier and that it accidentally discharged when he touched it, with the bullet ricocheting 78 feet before hitting 32-year-old Steinle. Garcia Zarate threw the gun into the water after it fired.

Prior related post:

January 5, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, December 26, 2017

"Association of Childhood Blood Lead Levels With Criminal Offending"

The title of this post is the title of this notable new research from JAMA Pediatrics published online today. The research examines what has been for some a popular theory to try to explain when violent crime increased and decreased considerable over the last half-century. As these "Key Points" reveal, the research does not support a lead-crime connection:

Question Is childhood lead exposure associated with criminal offending in a setting where the degree of lead exposure was not confounded by socioeconomic status?

Findings  In this cohort study of 553 New Zealanders observed for 38 years, lead exposure in childhood was weakly associated with official criminal conviction and self-reported offending from ages 15 to 38 years. Lead exposure was not associated with the consequential offending outcomes of a greater variety of offenses, conviction, recidivism, or violence.

Meaning  Responses toward lead exposure should focus on consequences for health, not potential consequences for crime.

The notable uptick in violent crime in the US over the last two years had seemed to significantly mute a number of earlier discussions of the prospect that reduced led exposure largely explained the major modern crime declines from 1991 through 2014. Of course, neither recent crime data in the US nor this study from New Zealand can itself conclusively prove or disprove any contestable proposition. But I am always inclined in these setting to assert that human behaviors of all sorts often defy any simple explanation.

Some prior related posts talking up lead-crime links:

December 26, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (2)

Sunday, December 24, 2017

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, December 21, 2017

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

The title of this post is the headline of this recent New York Times commentary authored by Sam Corbett-Davies, Sharad Goel and Sandra González-Bailón. Here are excerpts:

In courtrooms across the country, judges turn to computer algorithms when deciding whether defendants awaiting trial must pay bail or can be released without payment. The increasing use of such algorithms has prompted warnings about the dangers of artificial intelligence.  But research shows that algorithms are powerful tools for combating the capricious and biased nature of human decisions.

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes.  In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released.  Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

Algorithms have also proved useful in informing sentencing decisions. In an experiment in Philadelphia in 2008, an algorithm was used to identify probationers and parolees at low risk of future violence.  The study found that officers could decrease their supervision of these low-risk individuals — and reduce the burdens imposed on them — without increasing rates of re-offense.

Studies like these illustrate how data and statistics can help overcome the limits of intuitive human judgments, which can suffer from inconsistency, implicit bias and even outright prejudice.

Algorithms, of course, are designed by humans, and some people fear that algorithms simply amplify the biases of those who develop them and the biases buried deep in the data on which they are built.  The reality is more complicated.  Poorly designed algorithms can indeed exacerbate historical inequalities, but well-designed algorithms can mitigate pernicious problems with unaided human decisions.  Often the worries about algorithms are unfounded...

Still, like humans, algorithms can be imperfect arbiters of risk, and policymakers should be aware of two important ways in which biased data can corrupt statistical judgments. First, measurement matters. Being arrested for an offense is not the same as committing that offense.  Black Americans are much more likely than whites to be arrested on marijuana possession charges despite using the drug at similar rates. As a result, any algorithm designed to estimate risk of drug arrest (rather than drug use) would yield biased assessments.  Recognizing this problem, many jurisdictions — though not all — have decided to focus on a defendant’s likelihood of being arrested in connection with a violent crime, in part because arrests for violence appear less likely to suffer from racial bias....

The second way in which bias can enter the data is through risk factors that are not equally predictive across groups.  For example, relative to men with similar criminal histories, women are significantly less likely to commit future violent acts.  Consequently, algorithms that inappropriately combine data for all defendants overstate the recidivism risk for women, which can lead to unjustly harsh detention decisions.  Experts have developed gender-specific risk models in response, though not all jurisdictions use them. That choice to ignore best statistical practices creates a fairness problem, but one rooted in poor policy rather than the use of algorithms more generally.

Despite these challenges, research shows that algorithms are important tools for reforming our criminal justice system.  Yes, algorithms must be carefully applied and regularly tested to confirm that they perform as intended. Some popular algorithms are proprietary and opaque, stymieing independent evaluation and sowing mistrust. Likewise, not all algorithms are equally well constructed, leaving plenty of room for improvement.  Algorithms are not a panacea for past and present discrimination.  Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices.  But well-designed algorithms can counter the biases and inconsistencies of unaided human judgments and help ensure equitable outcomes for all.

December 21, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (2)

Saturday, December 16, 2017

"Why hiring people with criminal records benefits all of us"

The title of this post is the headline of this recent FoxNews commentary authored by Mike Jandernoa.  Here are excerpts:

In the past, many employers would often not consider hiring people who had even minor criminal records.  But as the former CEO of a 10,000-employee organization, I have one message for America: we can no longer exclude this vital component of our workforce.

An estimated one in three American adults has a criminal record of some kind.  And about 600,000 people leave our nation’s prisons every year, looking to rejoin the workforce. While individuals in this group of workers won’t be right for every job, the right job is out there for everyone.

The benefits of boosting employment for those with criminal records are significant.  First, opening up opportunities to this population will make our country safer. Right now, almost 60 percent of individuals remain unemployed a year after being released from incarceration.  It’s in our collective self-interest for them to get jobs, because steady employment is one of the best ways to ensure that individuals lead productive, crime-free lives.  In one study of 6,000 returning citizens, employment cut the rate of those who committed a new crime in half.

Second, employers all across the country are suffering from a dearth of skilled labor.  Every year, one major national bank surveys small businesses across this country.  This year the survey found incredible optimism: 80 percent of employers said their business is stronger than ever; 40 percent said they plan to make a capital expenditure to grow their companies; and a quarter of those surveyed said they plan to hire more workers.  In West Michigan, most of the business leaders I know plan to expand their workforces. The downside?  The businesses can’t find enough workers....

Our region is almost at full employment, so we must look for alternatives. We have a very strong manufacturing base, and these businesses are looking for people who will show up on time and test negative for drugs — that’s it.  This opens the door for people who were formerly incarcerated and who are serious about turning their lives around.  It is not unheard of for employers to send vans to pick up workers who are in residential community corrections programs because the employers are so desperate for workers.

Some of our country’s largest employers are making second-chance hiring their official policy.  Target and Home Depot have “banned the box” in their employment practices.  “Ban the box” delays inquiry into an applicant’s criminal history until late in the hiring process, ensuring that those with criminal records aren’t tossed aside before having an opportunity to detail their skills, training and qualifications. This policy also allows these individuals to explain the circumstances of their offense, and show potential employers how they have turned their lives around....

Reforms to seal or erase records of criminal convictions are also a priority for job creators.  These policies seal minor criminal records after a certain crime-free period. Research shows that low-level offenders who have remained crime-free for three to five years are no more likely to commit a crime than anyone else.  And in many states, when minor criminal records are sealed, law enforcement and judicial officers still have access to these records, ensuring that public safety continues to be a priority.

Almost all states have some mechanism through which certain criminal records can be erased or sealed, but erasing records at the federal level is virtually impossible. Fortunately, the issue is gaining traction in Congress. Sen. Rand Paul, R-Ky., is spearheading the REDEEM Act, with bipartisan support.  And Rep. Hakeem Jeffries, D-N.Y., introduced the Renew Act with Rep. Trey Gowdy, R-S.C.

Occupational licensing reform is another issue important to the business community. Today one in four occupations requires a government license — but a criminal history often bars an individual from the licensing process.  Ironically, such restrictions make us less safe.  One study showed that states with more burdensome licensing laws saw an average 9 percent increase in recidivism, while those with the lowest burdens had a recidivism reduction of 2.5 percent.

States as diverse as Illinois, Arizona, and Louisiana have already begun peeling back the layers of government-issued permission slips to work.  At the federal level, the New HOPE Act, introduced by Rep. Tim Walberg, R-Mich., and similar legislation sponsored by Sen. John Cornyn, R-Texas, would allow states to use federal funding to identify and reduce unnecessary licensing barriers within their regulations and statutes.

Elected officials should look to job creators for sound public policy.  I urge my fellow employers to beat the drum even louder and make their voices heard at the local, state and federal level. We can improve public safety, strengthen the economy and broaden our pool of skilled labor through commonsense criminal justice reforms and offering second chances for those who have earned them.  I don’t know a good businessperson who would turn down that deal.

December 16, 2017 in Collateral consequences, Offender Characteristics, Who Sentences? | Permalink | Comments (5)

Friday, December 15, 2017

Remarkable story of jury sentencing, jury actions and a victim's response from Virginia

A helpful reader made sure I did not miss this remarkable story from Virginia as reported in the Washington Post under the headline "First the jury convicted this 19-year-old maid for stealing. Then they took up a collection to pay her fine." Here are highlights:

After she was arrested, Mendez Ortega spent eight days in jail until she was released on $1,000 bond . The jury was not told that.  The jury also was not told that Mendez Ortega apparently is not in the country legally, as Copeland said she was told by prosecutors, because it was not relevant to whether she stole the rings.  “I think it’s relevant to the case,” Copeland said.  She said the penalties of a felony conviction, such as not being able to vote or buy a gun, would not be actions available to an immigrant in the country illegally anyway....

The trial seemed utterly ordinary.  A 19-year-old maid swiped a woman’s three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Va., but later returned them after the police questioned her.  She was charged with felony grand larceny.

What the jury did was extraordinary.  They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony.  But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt.  One lady pulled out a $20 bill, and just about everybody chipped in.”  Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80....

The two-day trial was held in July, but the sentencing was last Friday before Fairfax County Circuit Court Judge Robert J. Smith.  Mendez Ortega’s lawyer, assistant public defender Michael C. Cash, asked the judge to defer the case and not enter a conviction or sentence in light of the defendant’s actions and the jury’s response.  Smith declined, entered the conviction and imposed the $60 fine.  Numerous veteran criminal lawyers, on both the prosecution and defense sides, said they had never heard of a case where a jury paid a defendant’s fine.

A happy holiday story, right?  Well what if you’re the woman whose rings were stolen?  Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.  “I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft.  “If she had accepted accountability, I would be okay with all of this.  The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a series of lies from the start, and then unfurled a tragic life story that convinced the jury to impose a punishment of a $60 fine.  “I was outraged,” Copeland said.  “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept.  The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said.  Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.... 

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her.  But the legal standard was very clear.”  Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.  Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her?  I don’t get this. That’s basically saying it’s okay to steal.”

Then during the sentencing phase, Mendez Ortega took the stand.  She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500.  She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15, that she was pregnant again at 19 and had no job, according to court records. “The whole time she was telling the sob story,” Lisa Copeland said, I looked at my husband and said, ‘I’ve heard enough of this.'”  She noted that after Mendez Ortega took the rings, “she lied to the cops, she lied to her employers.  She didn’t turn in the rings, she made somebody else do it.  She confessed, but claimed that the rings were in the bathroom.  And then she tried to blame her boss.”

When the jury went back to deliberate on a sentence, the jurors said they quickly agreed that no jail time was appropriate, and that only a small fine should be imposed. “We all came to the conclusion,” Memmott said, “we should fine her the amount she made for a day’s work.”...  “The degree of empathy that was shown by these citizens,” said a third juror who asked to remain nameless, “and the serious way everybody took their responsibility, was really remarkable.”

Remarkable is the word I would attach to every part of this story, while also noting that this would only be possible in a jurisdiction like Virginia that includes a system of jury sentencing. Interestingly, this story does not speak to whether or how the victim here spoke during the trial/sentencing proceedings.  I am pretty sure victims in Virginia have a right to speak at sentencing, and I wonder if this now-aggrieved victim is upset in part because she did not exercise that right.

December 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Saturday, December 09, 2017

Notable new push to push for expanded use of compassionate release programs

As reported in this press release from Families Against Mandatory Minimums, "a coalition of criminal justice reform, health policy, human rights, and faith-based organizations launched a new public education and advocacy campaign to urge the creation, expansion, and robust use of federal and state programs that grant early release to prisoners with compelling circumstances, such as a terminal or age-related illness."  Here is more from the release (with links from the source):

The Campaign for Compassionate Release” comprises a diverse group of organizations, including Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network.  “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones. These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up,” said Mary Price, general counsel of FAMM.

To kick off the Campaign, 36 organizations and individuals endorsed a statement of principles. The principles focus on the humanitarian, public safety, and economic benefits of granting early release to elderly prisoners, those with disabilities, or prisoners facing extreme family changes. While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program.

The federal compassionate release program, created by Congress, has existed for decades but is rarely used.  The Bureau of Prisons (BOP) must decide if prisoners meet program criteria and then seek their release in the courts, but in reality, the BOP only brings a trickle of release motions to the courts annually. Delays also plague the program; prisoners commonly die awaiting a decision.  Congressional appropriators, government watchdogs, the U.S. Sentencing Commission, and outside advocates all have questioned the BOP’s failure to use the program as Congress intended, especially since sick, dying, and elderly prisoners are the least likely to re-offend and the most expensive to house.

Today, many Campaign members and others sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. The letter echoes a similar letter signed by a bipartisan group of senators in August.

December 9, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, December 08, 2017

Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

The typical defendants sentenced in federal court for child porn offense have not been convicted of contact offenses and have strong arguments for being sentenced below the severe federal sentencing guideline ranges.  But former USA Gymnastics doctor Larry Nassar is not your typical federal child porn offender and, as reported here, he did not convince a judge he should get a below guideline sentence. Indeed, he got the maxed out in every possible way at his sentencing in federal court yesterday:

Larry Nassar, the 54-year-old former MSU and USA Gymnastics doctor whose work took him to multiple Olympic Games, received an effective life sentence when a federal judge on Thursday sentenced him to 60 years in federal prison on child pornography charges.

"He has demonstrated that he should never again have access to children," U.S. District Judge Janet Neff said as she imposed a sentence that went beyond guidelines calling for 22 to 27 years in prison. He was sentenced to 20 years on each of three counts to which he's admitted. The sentences are to be served consecutively.

Neff also ordered that his federal time would be served consecutively to state sentences for sexual assault to which he's also admitted. He will be sentenced next month on those charges.The courtroom was filled to capacity. Among those in attendance were several victims of Nassar's admitted sexual assault, their relatives and their attorneys. Several victims said after the sentencing they were still trying to process their feelings, but it was a step toward justice.

“I was blown away with what the judge did today, and I thought it was very fitting," Larissa Boyce, who first raised concerns about Nassar to an MSU coach in 1997, said at a news conference after the hearing. "I can’t thank her enough for the things that she said."

In court filings last week, Nassar's attorneys asked Neff to show leniency, saying the doctor had worked toward redemption by helping fellow inmates and taking Bible classes since his arrest nearly a year ago. Nassar, speaking in a barely audible voice from the courtroom podium on Thursday, told Neff he’d long battled an addiction he likened to alcoholism or drug addiction. His shame kept him from asking for help, he said. He said he hoped his crimes would educate people about the problem to prevent others from being hurt in the future....

But Neff said Nassar’s crimes hurt so many people on so many levels. That includes the unnamed children in the pictures who feel assaulted every day knowing someone somewhere could be viewing their bodies, she said. It includes the women Nassar assaulted who now struggle to trust doctors and struggle with their own sense of self-worth.

The judge said she'd sentenced defendants in child pornography cases for a decade but Nassar was "unique" in the sheer volume of pornography he'd collected and the brazen way he assaulted women during medical appointments with parents in the room. "You have to wonder whether he felt he was omnipotent, whether he felt he was getting away with something so cleverly," Neff said as several victims and family members in the room started to cry. "I am a mom of two daughters. I cannot imagine that kind of situation."

Federal prosecutors had argued for the maximum 60 years, saying Nassar "poses an immense risk to the community" and quoting one victim who said he "will not hesitate to reoffend" if he's ever freed. Neff agreed.

Nassar pleaded guilty in July to three federal charges after investigators said he possessed at least 37,000 graphic videos and images of child pornography, including images of prepubescent children engaged in sex acts. He also pleaded guilty to obstruction of justice for trying to destroy the evidence. The U.S. Attorney's Office said Nassar paid to have his work laptop wiped clean and threw away hard drives containing the pornography. Investigators were only able to obtain those hard drives at Nassar's Holt property because the garbage truck happened to be running late that day, according to court records.

Some of the videos appeared to show Nassar assaulting young girls in a pool, investigators said. As part of a deal with federal prosecutors to obtain his guilty plea, prosecutors agreed they would not charge him with alleged sexual exploitation of children in relation to four reported victims. Thursday's sentencing ends one of three criminal cases against Nassar. He's also pleaded guilty to sexual assault charges in both Ingham and Eaton counties and could get to up to life in prison in those cases when he's sentenced next month.

Prior related post:

December 8, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 07, 2017

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"The Effects of Aging on Recidivism Among Federal Offenders"

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

The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...

Report Highlights

Older offenders were substantially less likely than younger offenders to recidivate following release.  Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release.  The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.

For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge.  By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.

Age and criminal history exerted a strong influence on recidivism.  For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older.  For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.

Education level influenced recidivism across almost all categories.  For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%).  Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).

Age exerted a strong influence on recidivism across all sentence length categories.  Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.  In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.

For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups.  For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders.  For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud).  Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).

At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics.  For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners.  Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.

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

Wednesday, December 06, 2017

Notable state and federal developments in the Garcia Zarate/Kate Steinle case

Last week, I blogged here about the California state court verdict in a high-profile homicide case, asking in the title of my post "Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after 'disgraceful verdict in the Kate Steinle case'?."  As noted below, we already have an answer to this question, though there is also state prosecution news we should cover first.

Specifically, as reported here, the "attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well." Here is more:

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.  Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

Because I am not well versed in California's law of possession, I cannot provide an informed assessment of whether this defense claim provides a compelling basis to reverse the one state conviction the state jury brought back against Garcia Zarate. But I can provide a link to and excerpt from this press release from the US Department of Justice highlighting why federal possession law is now of great import to Garcia Zarate:

A federal grand jury indicted Jose Inez Garcia-Zarate today for being a felon in possession of a firearm and ammunition, and for being an illegally present alien in possession of a firearm and ammunition, announced United States Attorney General Jefferson B. Sessions; United States Attorney Brian J. Stretch from the Northern District of California; and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent in Charge Jill Snyder.

According to the indictment, on July 1, 2015, Garcia-Zarate, a citizen of Mexico who reportedly is 47 years old, possessed a semi-automatic pistol and multiple rounds of ammunition in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and 18 U.S.C. § 922(g)(5) (unlawfully present alien in possession of a firearm).

An indictment merely alleges that a crime has been committed and Garcia-Zarate, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. Garcia-Zarate currently is in state custody on other charges.  If convicted of either violation of 18 U.S.C. § 922(g), Garcia-Zarate faces a maximum statutory penalty of 10 years in prison.  However, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Prior related post:

December 6, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Envisioning an Alternative Future for the Corrections Sector Within the U.S. Criminal Justice System"

The title of this post is the title of this notable Rand research report that I just came across authored by Joe Russo, George Drake, John Shaffer and Brian Jackson. Here is a summary with some points from the report in via this Rand webpage:

Challenged by high costs and concerns that the U.S. corrections sector is not achieving its goals, there has been a growing focus on approaches to reform and improve the sector's performance.  Policies initiated during the tough-on-crime era led to aggressive prosecution, lengthier sentences, and an exploding correctional population.  In recent years, the corrections sector has been gradually shifting toward efforts to provide treatment, alternatives to incarceration, and enhanced programs to facilitate offender reentry.  Although judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform, the sector has a unique perspective and therefore can provide critical insight regarding what is working, what is not, and how things should be.

To contribute to the policy debate on the future of the corrections sector, researchers interviewed a group of prominent correctional practitioners, consultants, and academics. This report outlines their perspectives on the current state of corrections and their vision for the future.  These experts were specifically asked how they would redesign the corrections sector to better serve the country's needs.  The findings offer both an assessment of what is and is not working now and potential solutions to better achieve justice policy goals going forward.

Key Findings

The Corrections Sector Has Little Control Over the Many Factors That Affect Its Operations

  • Judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform.
  • The sector does have some control over how offenders are treated once they enter the system.

A Panel of Experts Agreed That the Sector's Primary Role Should Be to Facilitate Positive Offender Behavioral Change, but This Is a Complex Task

  • Three broad types of changes would be necessary for the sector to support this mission and help ensure offenders' successful reintegration into society: new programs and improved education and training for corrections staff, the elimination of revenue-generating correctional operations, and cultural change to prioritize rehabilitation over punishment.
  • There are many opportunities for the sector to leverage the latest developments in science, technology, and evidence-based practices to create alternatives to incarceration, guide the investment of scarce resources, and engage communities in initiatives to reduce recidivism and support offender reentry.

Recommendations

  • Panelists put forward several solutions to support the corrections sector's mission of facilitating positive offender behavior change, including diverting low-risk offenders and those with mental health or substance use problems to specialty facilities while reserving prisons for violent and dangerous offenders; shortening sentences and ensuring that offenders have a clear, attainable path to release; and creating smaller and safer facilities that are closer to cities with programs to support reentry.
  • In the near term, panelists recommended expanding and adequately funding probation, parole, and community-based resources to support offenders' reentry into their communities.

December 6, 2017 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, December 05, 2017

Notable advocate makes notable pitch to abolish juve LWOP

Malcolm Jenkins, who I still remember as a great Buckeye ballplayer, is now an NFL star using his voice and platform to discuss criminal justice reform issues.  He has this notable new commentary about juve LWOP under this full headline "America is the only country in the world still sentencing our kids to die in prison:For too long we have depicted our youth, especially our black youth, as lost causes. But they can change."  Here are excerpts:

As a black man in America, I’m keenly aware that people who look a lot like me are over-represented in the criminal justice system. The way adults of color are treated in our justice system is already upsetting, but the way our justice system treats children, especially black children, is simply deplorable.

Nowhere is this more clearly evident than on the issue of juvenile sentencing. Black children are grossly over-represented when it comes to kids sentenced to life without parole. This disturbing reality is personal to me: In Pennsylvania, where I live and play football for the Philadelphia Eagles, nearly 80% of juvenile lifers are black.

In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances.  Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed.  Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance.  Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.”  But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth.  We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole....

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most.  According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once.  Today, these kids deserve a second chance.  Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way.  Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause.  But they can change.  These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s.  These are children.  Studies show that even those accused of the most serious crimes age out of crime....

A lot of people might question why, as a professional athlete, I’m speaking out on criminal justice issues.  I believe that it is my duty to use my platform to raise awareness of the kinds of institutional injustices that so rarely make the news — and that we so rarely question.  And I want to elevate the work that so many amazing community grassroots organizations are doing to try and bring about this change.

Fortunately, there is some hope, finally, in my hometown.  Philadelphia’s newly elected District Attorney has stated he will not seek juvenile life without parole (JLWOP) for any kid, no matter the crime. He has also vowed to allow older cases to be considered for parole.  This is a great start.  Now, other prosecutors should follow suit.

No matter their race or hometown, rehabilitation is a beautiful thing. After all, there is nothing more American than giving someone who has worked hard a (second) chance to pursue life, liberty and the pursuit of happiness.

December 5, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Saturday, December 02, 2017

Thanks to SCOTUS McDonnell ruling, record-long sentence for Congress member reduced to (significant) time served

A little more than eight years ago, as detailed in this post, federal prosecutors were seeking a (within-guideline) sentence of 27 years or more years for former US Representative William Jefferson following his bribery convictions.  Jefferson’s attorneys urged a sentence of less than 10 years, noting that no member of Congress had ever previously been sentenced to more than 100 months in prison.  As reported in this post, US District Judge T.S. Ellis ultimately imposed a record-setting prison sentence of 13 years.

Fast forward to this press story from yesterday, and we learn the details of the notable final chapter in this particular federal white-collar sentencing saga:

Ex-New Orleans Congressman Bill Jefferson walked out of a suburban Washington courthouse Friday owing no further obligations to the United States government, aside from monthly check-ins with a federal parole officer.  The five years and five months Jefferson spent in prison, as well as the $189,215.42 the feds seized from his bank accounts, served as enough punishment for Jefferson’s corruption convictions, U.S. District Judge T.S. Ellis III ruled.

The judge signed off on an agreement between Jefferson’s attorneys and federal prosecutors letting the disgraced former lawmaker walk away from the public corruption case against him after serving less than half of his original prison sentence.  “So, Mr. Jefferson, this ends a long saga,” Ellis said as Jefferson, his balding head shaved smooth and shoulders stooped slightly, stood before him. “You have paid your debt."

The former nine-term Democratic congressman was toppled from power a decade ago amid high-profile FBI raids on his home and congressional offices. Agents had secretly recorded meetings between Jefferson and a wealthy Virginia businesswoman acting as an FBI informant, eventually capturing Jefferson on video accepting a suitcase with $100,000 in cash in a suburban hotel room.  Agents later found $90,000 of the money in Jefferson’s freezer, wrapped in tinfoil and stuffed inside frozen food boxes.  The raid garnered national headlines and left Jefferson’s reputation in tatters....

Ellis, who presided over Jefferson’s trial and originally sentenced him to 13 years in federal prison, threw out seven of the ten counts against Jefferson in October in light of a 2016 U.S. Supreme Court decision requiring federal prosecutors to do more to prove public officials had abused their positions in corruption cases. The decision, which vacated the corruption conviction of former Virginia Gov. Robert McDonnell, triggered a wave of appeals from other former public officials. The judge also ordered Jefferson to be released early from federal prison.

Jefferson, however, had faced the prospect of returning to prison. Ellis left three counts of the conviction standing, each of which carried a potential prison term well beyond the five years Jefferson spent locked up. At Friday’s hearing, Jefferson said little, instead letting his attorneys — both of whom represented him during his eight-week trial — do the talking....

Jefferson offered his gratitude to friends, relatives and supporters who’d stood by him over the years while speaking to reporters outside the courtroom.  The former politician said he plans to stay retired from public life but hopes to become involved in the community and his local church....  “I don’t have time to be angry with anything,” Jefferson said when asked if he harbored bitterness about his time in prison.  Jefferson maintained his innocence in the case even after his conviction but declined Friday morning to say whether he did anything wrong.

As part of the deal with prosecutors, Jefferson accepted his conviction on two federal conspiracy counts and agreed not to file any further appeals in the case.  Ellis, in signing off on the agreement, noted that federal sentencing guidelines recommend 8 to 10 years in prison on those two charges.  The judge called it a fair resolution for everyone involved.  Yet Ellis still castigated the ex-lawmaker’s actions as “venal” in handing down the lesser sentence.

Prior related posts from 2009:

December 2, 2017 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, November 28, 2017

"Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice"

The title of this post is the title of this notable new paper now on SSRN authored by Mark Bennett and Victoria Plaut. Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery.  We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor.  We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences.  We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

November 28, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Monday, November 27, 2017

Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges

For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:

Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”

The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.

The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.

The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:

‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.

‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”

‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”

‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”

‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”

State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”

Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.

Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”

Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.

Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.

“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.

The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.

Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”

At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:

Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System

Justice Reinvestment in Ohio: Overview

Justice Reinvestment 2.0 in Ohio: Launch Presentation

November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, November 18, 2017

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Wednesday, November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, November 14, 2017

New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"

This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:

The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system.  The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.

The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York.  In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....

“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased?  Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense?  As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”

“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:

  • Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.

  • In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations.  The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.

  • Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.

  • Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.

  • Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.

  • Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).

  • Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.

The report’s authors conclude with six recommendations, with guidance from previous research:

  • Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.

  • Build a risk-based system of pretrial practices to replace the current money-based bail system.

  • Keep youth out of confinement and the adult criminal justice system.

  • Review and modernize sentencing practices and policies.

  • Encourage local, community-driven solutions to crime through incentive funding.

  • Measure criminal justice success with better data collection and reporting.

“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”

November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)