Saturday, February 10, 2018

"Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing"

The title of this post is the title of this new Note appearing in the latest issue of the Harvard Law Review.  Here is how it starts:

Across the country, from New Jersey to Texas to California, bail reform is being debated, implemented, and litigated at the state and local levels.  Lawmakers and the public are learning that cash bail is excessive, discriminatory, and costly for taxpayers and communities.  With promises to replace judicial instincts with validated algorithms and to reserve detention for high-risk defendants, risk assessment tools have become a hallmark of contemporary pretrial reform.  Risk assessment tools have proliferated despite substantial criticisms that the tools depend upon and reinforce racially biased data and that the tools’ accuracy is overblown or unknown.  Part I of this Note examines contemporary bail practices, recent reforms, and risk assessments’ promises and shortcomings. Part II discusses federal sentencing reform, which originally sought a more empirical approach to criminal justice but failed.  Part III applies the lesson of sentencing reform to bail reform today.  Despite endorsing empirical tools, legislatures are prone to interfering with the evidence that informs those tools or with the tools themselves.  Even after reforms, system actors retain misaligned incentives to incarcerate too many people.  Technocratic instruments like risk assessments may obscure but cannot answer tough, fundamental questions of system design. But recent pretrial reforms have shown early signs of progress. If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.

February 10, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

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)

New Utah death penalty study may add momentum to repeal efforts

This local article, headlined "New study of Utah’s use of the death penalty suggests life without parole costs less, prompts another call to abolish capital punishment," reports on a new report which could help jump start efforts to abolish the death penalty in the Beehive State.  Here are the details and some context:

A group of Utah attorneys, advocates and state staff have spent the last year studying the state’s death penalty. The working group, created by Utah’s Commission on Criminal and Juvenile Justice, examined several areas, including costs, aggravating factors and public attitude.  The CCJJ report, released Friday [and available here], noted there were “fundamental difficulties inherent in analyzing death penalty policy.” The group did not make any recommendations or proposed changes to Utah’s current capital punishment system.

But a group called Utah Conservatives Concerned about the Death Penalty said the report shows that a significant amount of money has been spent seeking death sentences without much in return.  They called on lawmakers to abolish capital punishment in Utah. “This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible,” director Kevin Greene said in a statement. “... The millions of dollars that we have been wasting on the death penalty should either be returned to the taxpayers in the form of a tax cut or used for crime prevention or to help victims of crime.”

Here’s what the study found:

Cost estimates for the price of the death penalty in Utah are limited, the group noted. Legislative analysts in 2012 estimated that a death sentence and decades of appeals costs $1.6 million more than a life-without-parole sentence. Another more recent report estimated that Utah and its counties have spent almost $40 million to prosecute the 165 death-penalty eligible cases that have been filed in the last two decades. Only two cases in that time have resulted in a death sentence....

Utah currently has over 60 aggravating factors in the homicide law that allow prosecutors to seek the death penalty — and state lawmakers are contemplating adding even more. At a recent legislative hearing, some expressed concern that Utah may have too many crimes that qualify for the death penalty, and that an appeals court could torpedo the capital punishment law for being too broad. In the CCJJ report, the group noted that they could not come to an agreement about whether the number of aggravating factors should be limited. They noted that most states rarely remove aggravating factors — and instead have been adding more through the years.

The working group looked at several polls about Utahns’ attitude toward the death penalty, noting that there have been conflicting results. Two polls showed Utahns support the death penalty, while two others showed less support for execution in favor of life-without-parole sentences. The group concluded it was “probably reasonable to suggest simply that public support for the death penalty in Utah is declining over previous highs.”

Utah legislators came close to outlawing the death penalty in 2016 — but the bill never reached the House floor before the midnight deadline on the last night of session. Criminal justice reforms groups have said another push to end capital punishment in Utah is likely during this legislative session — though a bill to abolish it has not yet been public.

Since 2010, Utah prosecutors have filed 119 aggravated murder cases, according to Utah court data. Such cases can result in punishments of 25 years to life, life in prison without the possibility of parole, or death. Only one of those cases — a retrial of a 1993 case — resulted in a death sentence.

Of the nine men currently on Utah’s death row, two were originally convicted as long ago as 1985. All but one of the rest were convicted before 1999, although one case was retried in 2015 and resulted in a second capital murder conviction.  All nine have ongoing appeals underway in state or federal court.

The last execution was carried out in 2010, when Ronnie Lee Gardner was executed by firing squad for the 1984 murder of Michael Burdell, a Salt Lake City lawyer, during Gardner’s failed escape attempt from the 3rd District courthouse.

Notably, in the not too distant past, a significant number of states abolished the death penalty formally or functionally.  As reflected in this DPIC page, from 2007 through 2013, New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland became abolitionist states.  Since 2013, the only significant legislative action on this front took place in Nebraska; but the death penalty repeal passed by state senators in 2015 was rejected by voters in a 2016 referendum. In light of this recent history, I think it would be a pretty big deal if abolition efforts picked up steam in Utah.

February 10, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

Highlighting how mandatory minimums can distort pretrial procedures and practices

LawProf Jeff Bellin his week had this effective Slate commentary on a notable recent Second Circuit ruling. The Second Circuit in US v. Tigano, available here, found the defendant's Sixth Amendment right to a speedy trial was violated by almost seven years of pretrial detention. Bellin's piece, headlined "Waiting for Justice: One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts," spotlights how mandatory minimum sentencing statutes lurked below this (not-so) remarkable case.  Here are excerpts:

Tigano’s case fits a familiar narrative of clogged courts and bureaucratic indifference. But there is one important complication coverage has overlooked.  While the appeals court and subsequent media portrayals suggest that prompt trials are the solution to cases like Tigano’s, the real fix is long-delayed, bipartisan sentencing reform.  That is because the problem in Tigano’s case was not neglect, but a 20-year mandatory-minimum sentence that loomed over every decision in the case.

Tigano’s case was no Agatha Christie mystery.  Federal agents found 1,400 marijuana plants growing in Tigano’s residence.  What’s more, three separate agents testified that Tigano confessed that he grew the marijuana.  That’s a tough case to fight.  He was going to lose at trial, it seemed, and he was going to lose big.  While many states are lining up to cash in on marijuana legalization, federal law still dictates that a person who grows “1,000 or more [marijuana] plants … shall be sentenced to a term of imprisonment which may not be less than 10 years.”  That’s a 10-year mandatory prison term for growing marijuana — doubled for anyone, like Tigano, with a prior felony drug conviction.

That is why the attorneys and lower court judges in Tigano’s case overlooked the speedy trial rule.  They were not neglecting Tigano.  They were, instead, repeatedly delaying his case — to the point of ordering three needless mental competency examinations — in the hope that Tigano would agree to a plea deal.  With 20 years on the horizon, everyone, including Tigano’s own attorneys, could put up with an otherwise unconscionable delay that would ultimately be deducted from his eventual sentence.

Tigano, however, insisted on his constitutional right to a trial.  After seven years, he finally got it.  There were no surprises. The jury convicted and the judge sentenced him to 20 years in federal prison. Of course, no one expected the final twist.  On appeal, the lengthy pretrial delay set Tigano free....

The appeals court’s opinion says that “no single, extraordinary factor caused the cumulative seven years of pretrial delay.”  That’s wrong.  The 20-year mandatory sentence for growing marijuana ignited all the chaos in Tigano’s case.  That’s the dirty secret about mandatory minimums: They don’t just lead to unjust sentences; they distort proceedings in countless cases where they are never imposed.  Most alarmingly, harsh mandatory sentences pressure even innocent people to plead guilty to avoid long prison sentences.  And for the bold few who still go to trial, like Tigano, these laws prevent judges from imposing fair sentences....

Mandatory minimums don’t just ensure harsh, often disproportionate sentences.  They also cause massive distortions in the criminal justice system, leaving it a pale shadow of this nation’s ideals.

February 10, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, February 9, 2018

Lamenting latest data on how federal Bureau of Prisons administers its compassionate release program

This new press release from Families Against Mandatory Minimums, headlined "New Data Reveals BOP Still Neglecting Compassionate Release," reports on the release of new data about a notable piece of federal prison law and administration. Here is much of the full release (with links from the original):

FAMM (Families Against Mandatory Minimums) President Kevin Ring today commented on the release of new data related to the Federal Bureau of Prisons’ (BOP) compassionate release program. Last August, 12 U.S. senators wrote to the BOP seeking information on the number of individuals who were granted early release pursuant to the program. In its response dated January 16, the BOP revealed that the agency has granted a mere 306 petitions while denying more than 2,400 over the past four years.  Prisoners facing unimaginable circumstances wait an average of 4.7 to 6.5 months for a response, and 81 prisoners died while waiting for an answer.

“We are disappointed but not surprised,” Ring said. “Even as interest in prison reform grows, we find that the BOP is not using its authority to reduce the number of low-risk, high-cost individuals in federal prisons. This failure hurts families and taxpayers without improving public safety.

“The fact that 81 individuals died waiting for a response to their petitions for compassionate release is a moral outrage. We as a country can do better than this. Congress should act now to streamline the process and inject some common sense and dignity to this program,” Ring said.

FAMM has been a longtime advocate for expanding federal and state compassionate release programs, which authorize early release for prisoners facing extreme circumstances, such as a terminal or age-related illness. Last year, FAMM helped to establish the Campaign for Compassionate Release, a coalition of diverse organizations who support the creation, expansion, and robust use of compassionate release.

February 9, 2018 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, February 8, 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)

Brennan Center releases report on "Criminal Justice One Year Into the Trump Administration"

As detailed in this press release, the Brennan Center for Justice at NYU School of Law has produced this new report about federal criminal justice developments in the first year of the Trump era. Here is an overview via the press release:

Criminal Justice One Year Into the Trump Administration examines how the executive branch has used memoranda or more subtle changes in enforcement strategy to reverse Obama-era reforms and implement a more draconian law enforcement strategy.  Their efforts threaten to increase the federal prison population and disrupt state and local movements for reform that have broad, bipartisan backing.

“From day one at the Inauguration podium, Trump immediately shifted how federal officials talk about criminal justice issues,” said Inimai Chettiar, the director of the Brennan Center’s Justice Program. “He has sounded false alarms about rising crime nationwide and wrongly linked immigration to both this phantom increase and the opioid crisis. He preys on people’s fears to try to justify these ineffective and overreaching policies from his administration.”

Researchers note that:

  • The administration’s changes to policy have so far focused on increasing aggressive prosecutorial practices, changing federal drug enforcement policy, decreasing oversight of problematic police practices, and resurrecting rhetoric around fear of crime.

  • In fiscal year 2017, arrests by Immigration and Customs Enforcement officials rose by more than 30 percent. Arrests of individuals with no criminal conviction increased 146 percent from fiscal year 2016. ICE increased its use of detainers, or requests that local law enforcement hold someone in custody and hand them over to federal law enforcement authorities, by 65 percent. And, the number of detainers that local law enforcement declined to honor also rose.

  • Opioid deaths are expected to rise in 2017 and surpass the record of nearly 50,000 deaths in 2016.

  • The White House is poised to support federal legislation that improves formerly incarcerated individuals’ reentry into society, but has not made a commitment to back federal sentencing reform efforts with bipartisan support.

“In some areas the effects of Trump’s changes to policy are not yet clear,” said Ames Grawert, counsel in the Brennan Center’s Justice Program.  “But that is not the case when it comes to immigration. Under his tenure, more people are entering ICE’s system and fewer are leaving it.  The Department of Homeland Security expects the daily population in immigration detention centers will increase by 25 percent.  That will not only have significant impact on the lives of the individuals put behind bars, but on the nation’s criminal justice system as a whole.”

February 8, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter

In this post last week, I asked via the post title "Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?".  This question was prompted by the release of a letter from a a former juror in an Ohio capital case urging Governor John Kasich to grant a reprieve based on mitigating evidence that he said he had neverand that would have changed his vote at the penalty phase.

Today I just learned of a partial answer to my question in this new press report headlined "Kasich issues temporary reprieve for condemed killer." Here are the interesting details:

Gov. John Kasich on Thursday issued a temporary reprieve for Raymond Tibbetts, a Cincinnati man who was scheduled to be executed Tuesday.

“Kasich issued the reprieve in light of a letter he received on January 30 from a juror on Tibbetts’ case,” a statement from the governor’s office said. “Because the Ohio Parole Board issued its report and recommendation without considering the letter, Kasich has asked the board to convene a hearing for the purpose of considering the letter and the issue it raises.”

In his letter, the juror said that he would not have voted 20 years ago to execute Tibbetts, who killed his wife and an elderly man, if he’d known the extent to which Tibbetts was abused as a child.

Kasich reset the execution for Oct. 17.

UPDATE: A helpful reader showed me this link with Gov Kasich's full statement, as well as this local article which includes the prosecutor's reaction to this reprieve:

Hamilton County Prosecutor Joe Deters, whose office sought a death sentence for Tibbetts, said he understands the governor's decision to delay, but he believes the original sentence should stand.

"It's pretty serious business when you're going to execute someone," Deters said. "It's frustrating for a lot of people, but the reality is this: If the governor has questions, it's his job to stop it.

"Would I have done something different? Maybe. But I don't know what he knows, and he's the governor."

February 8, 2018 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Mass Incarceration and Its Discontents"

The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology.  Here is how the essay gets started:

The contours of mass incarceration are, by now, broadly familiar.  The U.S. incarceration rate began an unprecedented ascent in the 1970s.  This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016).  The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015).  By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).

The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research.  A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion.  Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color.  Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction.  And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.

Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform.  Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted.  The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts.  In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact.  In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.

February 8, 2018 in Data on sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (12)

Reviewing how crime and punishment (but not AG Sessions' approaches) have changed in recent decades

Over at FiveThirtyEight, Amelia Thomson-DeVeaux has this extended piece that is a kind of retrospective on the evolution of crime and punishment in the US over the last 30 years, with a particular focus on the perspectives of AG Sessions. The piece is headlined "Jeff Sessions Is Trying To Take Criminal Justice Back To The 1990s," and here is how it gets started:

Thursday is the first anniversary of Jeff Sessions’s confirmation as attorney general. Over the past year, he has announced that he would seek to increase the use of the federal death penalty; reversed a series of Obama-era memos that instructed federal prosecutors not to go after the marijuana industry in the states that have legalized it; and directed prosecutors to slap drug suspects with the most serious charge they can prove.

None of these policies would have seemed out of place 30 years ago. And, in fact, it’s clear that Sessions has set his sights on returning the country’s criminal justice system to the days of harsh penalties for crime and hardline drug laws. The problem: A lot has changed over the last three decades — in particular, crime and our understanding of how to fight it.

Thirty years ago, there were open-air drug markets in big cities from New York to Los Angeles, residents of those cities were robbed or even killed on public transportation, and the murder rate was near its all-time high. At the crest of the crime wave, harsher penalties for criminals like mandatory minimum sentences and expanded use of the death penalty seemed like a reasonable response to a devastating national crisis, and most Americans supported them.

But today, the crime rate is much lower than in the 1990s, and Sessions’s policies are out of step with most public opinion. Moreover, many criminologists view his strategy as a throwback that’s unlikely to significantly curb violence or drug crime.

That’s because since these policies were implemented, decades of social science research has led experts like David Kennedy, a professor of criminal justice at the John Jay College of Criminal Justice in New York City, to conclude that they don’t work well enough to justify their cost. “The evidence shows that they’re expensive, there’s enormous human damage, and they’re not actually effective in deterring crime,” he said.

Sessions has long established himself as a hard-liner on criminal justice issues: As Alabama’s attorney general, he proposed a crime bill that would have made the death penalty mandatory for a second conviction for drug trafficking. As the U.S. attorney general, he’s billed his new policies as a rejection of the “soft” strategies on crime that characterized the Obama administration, arguing that capital punishment and long sentences deter criminals and that pot is a “gateway drug” for harder substances and addiction.

There’s no question that crime did start to drop precipitously during the era of harsher penalties. And in 2010, the homicide rate hit a four-decade low, according to the Bureau of Justice Statistics. Though most experts agree that the harsher strategies alone can’t explain the decline, there’s still no consensus about why the crime rate started to drop three decades ago. Scholars do note that it was already falling before many tough-on-crime measures were widely introduced, and they have offered theories from improved policing to the roaring economic growth of the 1990s to explain the change.

Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, said Sessions deserves some credit for calling attention to the recent uptick in the murder rate, which rose for the second consecutive year in 2016 after a 25-year decline. But Rosenfeld, who studies the causes behind crime rate shifts, and other mainstream criminal justice experts reject the notion that the Obama-era criminal justice reforms, like the decision not to pursue mandatory minimum sentences for low-level drug offenders, caused an increase in violent crime. Instead, Rosenfeld blames the increased violence in part on the drug market, with more demand for heroin because of the opioid epidemic. Rosenfeld also said that tensions between African-American communities and the police could be a factor.

And there’s even debate about whether the violent crime rate — as opposed to just the murder rate — is actually increasing. With a criminal justice outlook that seems more suited to the 1990s than today, Sessions finds himself implementing policies on sentencing, capital punishment and drug enforcement — particularly marijuana — that are out of sync with much of the country.

February 8, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Wednesday, February 7, 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)

Two notable and timely commentaries on prison reform

A couple of columns about prison reform caught my attention today. Here are headlines, links and excerpts:

From The Advocate, authored by Mark Holden and Brooke Rollins, "Ways to help failing prison system":

We are proud to be part of a new initiative, Safe Streets and Second Chances, which will work to combine policy reforms and evidence-based re-entry programs that will measure success not by incarceration rates but by whether former inmates are rehabilitated and capable of redemption.  Researchers will initially examine four states — Louisiana, Florida, Pennsylvania and Texas — and work to prepare people for re-entry beginning on day one of their prison sentence, and have an individualized plan in place within two months of incarceration.

The numbers indicate the scope of the challenge.  More than three out of four former inmates return to prison within five years of release, according to the Bureau of Justice Statistics.  That is a moral crime and a fiscal disaster.  And, worst of all, it is an unforgivable waste of human potential.  Nationally, more than 600,000 former inmates re-enter society every year. More than 100,000 of those are in our four targeted states.

Safe Streets and Second Chances will work with states to institute substance abuse and psychiatric counseling for individuals with mental illnesses or drug addictions; educational and literacy programs; vocational programs that teach usable job skills, and mentoring capabilities.  Such programs should involve faith leaders and public-private partnerships, so the comparative advantages of these sectors can be brought to bear on the rehabilitation and redemption of individuals.  Emphasis on punishment rather than rehabilitation is costly — $80 billion a year for incarceration at last count, and an even higher cost in the diminution of the human spirit.

The system traps individuals in a soul-crushing cycle of poverty and prison, while doing next to nothing to make our streets safer.  Proposals to address these challenges are not pie-in-sky do-gooderism.  They are a clear-eyed assessment based on evidence and experience.  In 2007, Texas projected it would need 17,000 new prison beds over the next five years.  After implementing these and many other reforms, including expanded drug courts and mental health programs, crime dropped 31 percent — to levels not seen since the 1960s.  Texas closed four prisons with plans to close four more, and saved $3 billion in the process.

South Carolina enacted similar reforms and cut its prison population by 14 percent, closed six prisons and saved $491 million . Other states have seen the results and are instituting programs focusing on education and training that are showing success in rehabilitating individuals and reducing recidivism.  If three out of four patients were dying in our hospitals, or three out of four combat soldiers were ill-prepared to face the enemy, we’d do something about it. I n a hurry.

Three out of four people in jail today will probably be back there if we don’t do something about it. In a hurry.

From USA Today, authored by Francis Cullen and Erik Luna, "Evaluate corrections officials not just on the state of prisons, but on rate of recidivism":

Nearly 9 in 10 Americans agree it is important to try to rehabilitate those who have committed crimes and are in the correctional system.  The public also demonstrates high support for formal “rehabilitation ceremonies” that would restore full citizenship to offenders who completed treatment programs, apologized and stayed crime-free for several years. A growing readiness exists to reinvent corrections.  Bold thinking and experimentation are needed. And that experimental approach could appeal to criminal justice reformers and hard-line supporters of harsher sentencing alike.  Attorney General Jeff Sessions, who has touted a return to "law and order" crackdowns, is right to be concerned about "a vicious cycle of crime, poverty and more crime."  But activists who believe in rehabilitation also support "smarter policies based on sound research."

So, how can prisons be improved? Here are three general ideas:

► Corrections officials should be evaluated more diligently not just on their ability to manage institutions but also to reform the inmates who are in them, and that must include inmates who have re-entered society and recidivated.  There's an expectation that wardens will maintain peace within their prisons.  They are held responsible if, for example, a riot breaks out.  Some aspects of police reform occurred because, among other things, law enforcement leadership was made responsible not only for solving cases but also for reducing crime.  Officials must be held equally responsible for recidivism rates.

► Prisons must be regarded as behavioral-change institutions, not warehouses for wrongdoers.  Being nasty to offenders by, for instance, exposing them to harsh prison conditions risks making them more criminal.  Prisons must be therapeutic and focus on rehabilitation.  This does not mean going easy on offenders, but instead insisting that they learn pro-social values and how to act responsibly.  Rehabilitative interventions require inmates to engage in the difficult work of changing their thinking and behavior.

► Corrections must become a true science.  If medical standards were applied, many correctional practices and programs would be seen as quackery worthy of malpractice lawsuits.  Evidence suggests that a therapeutic or human-service approach to corrections is most likely to reduce recidivism by helping offenders acquire the cognitive abilities, problem-solving and coping skills, and human capital needed to overcome the deficits that place them at risk of criminal conduct in the first place.  Sustained research is required — as is done in medicine — to give correctional workers more and better tools for inmate rehabilitation.

February 7, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1)

"Event dependence in U.S. executions"

The title of this post is the title of this new empirical paper authored by Frank Baumgartner, Janet M. Box-Steffensmeier and Benjamin Campbell.  Here is the abstract:

Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties.  The number of executions across counties appears to fit a stretched distribution.  These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event.  To examine these processes, we employ two-pronged empirical strategy.  First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model.

Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing.  Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently.  This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.

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

AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General

Jeff-sessions-attorney-general-630x354Last night, Attorney General Jeff Sessions delivered this extended speech at the Reagan Alumni Association's Celebration of President Reagan's Birthday.  I recommend the full text as a window into how the current AG thinks about and approaches various law enforcement issues, and here are some highlights that ought to interest sentencing fans:

[President Reagan] was elected to stop the dramatic rise in crime that arose after the Great Society.  The violent crime rate tripled from 1964 to 1980.  Robbery tripled. Rape tripled. Aggravated assault nearly tripled. Murder doubled.  The people were not happy.  Personal safety was a huge issue.  The last liberal, as was said, was mugged.

By 1980, judicial activism looked triumphant.  It was praised as a virtue and not a vice.  Originalism seemed to have gone the way of the Dodo.

Ronald Reagan was elected to fix this situation.  He was the law & order candidate — that’s for sure.  It was not Jimmy Carter.  Nixon had run on law and order successfully.

President Reagan promised change and he delivered.  His achievements with regard to legal reform are nothing short of remarkable.  They have not been fully appreciated....

President Reagan was a strong leader and a good boss.  There was never any doubt about what he expected from us.  And I drew a lesson from that: a strong leader is one who makes his expectations simple and clear.  When I became a United States Attorney, I told my staff, “I know why Ronald Reagan put me here: to put crooks in jail and to protect the treasury.”

We took on violent crime, drug dealers, the Miami cocaine cowboys, the mafia, government corruption, waste fraud, and abuse in government programs.

President Reagan signed into law a number of legal reforms that empowered the law enforcement effort.  There was the elimination of parole, the issuing of sentencing guidelines and mandatory minimum sentences in certain cases, the elimination of bail on appeal, and increased bail for dangerous criminals before trial.  We increased the DEA, FBI, ATF, and federal prosecutors.  Many states followed Reagan’s leadership.

I was a prosecutor before these laws went into effect and I was a prosecutor after these laws went into effect.  I can tell you firsthand that they were transformational. These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing law and order.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to cooperate.  When the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance.  The certainty of a significant sentence does, in fact, have a deterrent effect.  And the recidivist can’t commit his crimes if he is in the slammer.

We got tough about drug abuse because — as surely as night follows day — violence, addiction and death follow drug activity.  And those who were put in jail in the mid-to-late 1980s could not commit crimes in the 1990s, which is when the steep decline in crime became most apparent.

I mentioned how dire the situation was in 1980.  That was before Reagan. After the changes that we made were put in place, from 1991 to 2014, the violent crime rate was cut in half. So were the murder rate and the robbery rate.  Aggravated assault was cut by 47 percent, and rape was cut by more than one third.  These are remarkable achievements that made this country a better place.  So when I look up at my portrait of Ed Meese on the wall of my conference room, that’s what I think about.  And that example inspires the work that we do every day.

Under President Trump, we are determined to advance President Reagan’s work of restoring the rule of law.  President Trump sent us an order to support our men and women in blue and to “reduce” crime in America.  We embrace that goal and intend to achieve it.  Of course, the anti-crime effort often goes unnoticed no matter how important....

We are hammering violent groups — especially the vicious MS-13.

We are not going to pretend that there is not a law against marijuana, or that it’s not bad for you....

We don’t think illegal drug use is “recreation”.  Lax enforcement, permissive rhetoric, and the media have undermined the essential need to say no to drug use — don’t start.  And we are identifying pill mill doctors and sending large members to the slammer.

We have taken many other steps to restore the rule of law at the Department.  But I’ll be the first to acknowledge that we still have work to do.  There have been some very sharp criticisms about the Department.  I hear these criticisms and welcome the discussion.  Sunlight truly is the best disinfectant.  We will not ignore these problems or hide our heads in the sand.

Much of what we are doing is behind the scenes — matters I can’t discuss publicly.  I’m sure that you can understand why.  We will also make sure that all our employees are treated fairly.

February 7, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, February 6, 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)

Prez Trump trumpets again his interest in getting "really, really tough, really mean with the drug pushers and the drug dealers"

As noted in this prior post, Prez Trump last week in his State of the Union address spoke about "reforming our prisons" and the need to "get much tougher on drug dealers."  The first comment, coming on the heels of other prison reform talk, has garnered the most attention among criminal justice reform advocates.  But the second comment ought also get some attention, especially because Ronald Bailey has highlighted at Reason that Prez Trump doubled-down on these comments this week.

This Reason commentary, headlined "Trump Wants Us 'To Get Really, Really Tough, Really Mean with the Drug Pushers': Doubling down on a drug war that has failed for 40 years," take a critical look at what the President is saying. Here is how is starts (with links from the original):

What's the best way to address the national problem of opioid abuse and overdose deaths? "My take," President Donald Trump declared in Ohio yesterday, "is you have to get really, really tough, really mean with the drug pushers and the drug dealers. We can do all the blue ribbon committees we want—[applause]—we have to get a lot tougher than we are."

The president's dismissal of blue ribbon commissions is somewhat perplexing, since he ordered that one be created just last March—the President's Commission on Combating Drug Addiction and the Opioid Crisis. In any case, the president is evidently eager to rev up the war on drugs.

What might the president mean by getting really tough on drug pushers? One clue might be his phone call to Philippines President Rodrigo Duterte last April. "I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem," Trump said. "Many countries have the problem, we have a problem, but what a great job you are doing and I just wanted to call and tell you that."

As big a blustering blowhard as our president is, I trust that he is not actually contemplating Duterte-style extrajudicial killings when he says "we have to get a lot tougher than we are." Nevertheless, it is clear that the president has learned nothing from the failures of the war on drugs. Over the past four decades, the government has spent more than trillion dollars, locked up millions of Americans, and undermined our civil liberties, especially our Fourth Amendment protections against search and seizure, to stop the drug trade. Despite all the resources wasted and lives lost, the prices of illicit drugs have generally declined.

Prohibitionists claim that the drug war has reduced drug-related crime, decreased drug-related disease and overdose, and disrupted and dismantled organized criminal enterprises. But in a paper last year for the Cato Institute, George Mason University economists Christopher Coyne and Abigail Hall show that "prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels."

February 6, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

"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 5, 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)

Reviewing the potential import and impact of Prez Trump's talk of prison reform

Matt Ford at The New Republic has this new piece with this full headline" "A Chance for Criminal Justice Reform Under Trump: Despite his fear-mongering over crime, the president recently promised to help ex-prisoners 'get a second chance at life'."  Can he deliver?"  Here are excerpts from the second half of the piece (with a particular paragraph stressed for additional comment):

Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.

At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.

Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.

So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”

Proposals like those overlap with policies favored by Democrats, to an extent.  Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses.  Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.

But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year.  While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.

More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states.  Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed.  By endorsing some type of reform, the president could bolster local efforts against challenges from the right.

Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed.  Instead, he’s proving that the shift could be more durable than expected.

The paragraph that I have emphasized here strikes me as an especially important aspect of Prez Trump's recent reform talk even if major or significant federal statutory reform fails to emerge from Congress anytime soon.  Just as the "Right on Crime" movement has helped enable state-level politicians feel comfortable supporting criminal justice reform consistent with conservative principles, the avowed commitment by Prez Trump to prison reform allows state-level politicians to feel they can support prison reform consistent with supporting the President.  Indeed, effective criminal justice advocates in red states now may be able to call out any opponents of prison and reentry reform for seeking to undermine or resist what President Trump says is important for Making America Great Again.

February 5, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

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)

Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing

Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing.  This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:

Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."

Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."

Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."

Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.

Prior related posts:

February 5, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6)

Sunday, February 4, 2018

Yet another notable pitch for "why Conservatives should support criminal justice reform"

Long time readers know I have been talking a long time about a "new right" on a range of sentencing and corrections issues (though recalling this post on the topic back in January 2005 lead me to realize that the new right is not so new circa 2018). And lately it is hard now to pull up Fox News and not see some discussion of some criminal justice reform issue. Today's example is in this form of this new Fox News commentary authored by Texas Representative Jerry Madden titled "Here's why Conservatives should support criminal justice reform." U recommend the full piece, and here are excerpts:

Criminal justice reform may wind up being the most significant conservative policy change in Washington this year. That may sound surprising to some, but not to anyone who has been watching this movement in conservative states over the last decade.

Starting in Texas, conservatives of all stripes – fiscal, social, constitutional, or otherwise – have found favor with reforms to the criminal justice system that focus on increasing public safety and cutting costs to taxpayers. This is, seemingly, a very commonsense goal. But take a look at how most states and the federal government operate and you will find that well-functioning, well-focused systems are far from the norm.

The results are undeniable: Texas has lowered its overall crime rate 31 percent, putting it at levels that have not been seen since 1967. In that time, the Lone Star State has closed eight prisons and lowered the incarceration rate. This flies in the face of the old, mistaken ways of viewing criminal justice policy that considers incarceration the default rather than one tool of many to protect public safety.

At the heart of the Texas reforms is the idea that the nearly all of those incarcerated will eventually return to society after serving their sentence and therefore they must be rehabilitated to ensure that they do not return to a life of crime. Prisons cannot be mere people warehouses. For the offenders who commit to it, there is a real opportunity for redemption and second chances.

To no conservative’s surprise, the federal government lags behind in this area. The budget for the Bureau of Prisons is growing out-of-control. The BOP’s budget is now over 25 percent of the total budget for the Justice Department – a massive line item for an already over-indebted government. The outdated policies passed by Congress in the 1980s and 1990s are in desperate need of updating to match what states have shown to be successful.

There are two bills currently before Congress that will push for conservative changes. Rep. Doug Collins of Georgia and Sen. John Cornyn of Texas, both Republicans, are the lead sponsors on two prison reform bills that focus on preparing prisoners for re-entry. These bills don’t reduce the sentences for crimes, but rather encourage inmates to participate in recidivism-reducing programming by offering incentives that include more phone calls and visits with family, and earned time to spend the end of their sentence in a halfway house, home confinement, or community supervision....

There is further encouragement coming from, of all places, 1600 Pennsylvania Avenue. President Trump has stated the case well: there is a path to remain “very tough on crime, but we will provide a ladder of opportunity to the future.” In his listening session at the White House recently, the president further explained: “My administration is committed to helping former inmates become productive, law-abiding members of society.” President Trump has made it clear that this is an issue that conservatives across the country can rally behind.

With the state examples as proof, and with a push from conservatives in the White House and Congress, criminal justice reform is a clear winner for the right. It is time for Congress to move on conservative reform as soon as possible.

February 4, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Saturday, February 3, 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)

New York makes deal to bring (sort-of) free electronic tablets to all state prisoners

150717153234-jp5mini-hr-780x439As reported in this CNN article, headlined "In New York, all 51,000 state prisoners will get their own tablet computers," a notable form of technology is now on its way to a notable New York population. Here are some of the details:

Inmates in New York state prisons will soon be able to read e-books, listen to music and email family members while in prison -- all from their own tablet computers.

The New York Department of Corrections and Community Supervision entered into a deal with JPay that will provide all New York state prison inmates with a tablet.  JPay is a company that provides technology and services that help those who are incarcerated stay connected with people outside prison, according to the company's website.

There are approximately 51,000 inmates in New York state prisons, the corrections department said.  Anthony J. Annucci, the department's acting commissioner, called the development a "groundbreaking move."

"As we continue to use technology to make our prisons safer, we will also leverage it to improve operations and interactions with family and friends by expanding services to our population," Annucci said Tuesday during a state legislative budget hearing.

Annucci said the tablets would provide inmates with "the ability to access free educational material."  Prisoners will also able to file grievances with the prison directly from the tablets.

The New York state government said it won't pay anything for the inmates' tablets. They are free as part of a deal between the Department of Corrections and Community Supervision and JPay to start a pilot electronic financial system designed to let family and friends send money to people in prison more easily, according to the department.

The department didn't say when the tablet program would go into effect. Other states have recently implemented similar programs. Both Georgia and Colorado have started programs that provide inmates with tablets. Georgia is also working with JPay.

In a statement announcing the "alternative learning tablets" in Georgia, officials said the tablets will allow inmates to "maintain and enhance family communications; and assist with their re-entry into society." Connecticut recently announced plans to implement a similar program in its prisons.

At a Criminal Justice Policy Advisory Commission meeting on January 25, Department of Correction Commissioner Scott Semple said that his agency plans to introduce tablets into the correctional system "sometime in the spring." "These tablets are an embedded network where there is no risk of victimization with the use of Wi-Fi, but it has a lot of capability to keep people connected with technology," Semple said.

The CNN report does not fuly explain what is fully going on here, especially with respect to the functioning economics. Helpfully, this local article provides these additional details:

JPay makes a tablet known as the JP5, which is specialized for prisons.  The tablets will be on a secured network with access only to pre-approved apps and features and not a typical Internet browser, according to the company.

The tablets will connect to the email program through kiosks with secured lines in the prisons.  The company pledged to install the needed infrastructure and perform maintenance on its own dime. The state is not set to make any money off the tablets, according to DOCCS.

The tablets will, however, provide a potential revenue stream to JPay. Each will come pre-loaded with certain pre-approved books and educational materials.

But inmates will be able to purchase certain add-ons, such as music, through JPay. The company didn't say Thursday how much those extras would cost.

Inmates will also have to pay to send emails on the tablets, according to JPay. The company will keep the money; the state won't be taking a commission.

"Similar to purchasing a song on iTunes or an online game, incarcerated individuals will have the same opportunity to purchase entertainment and media products and download them onto the JP5 device," JPay said in a statement. "There are fees associated with those purchases, as well as sending emails."

February 3, 2018 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (1)

Friday, February 2, 2018

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

In my sentencing class, we have been talking about all the different players in the sentencing drama, and those stories often come into especially sharp relief as we move into our capital punishment unit.  And, coincidentally, after an execution in Texas last night, Ohio has the next scheduled execution in the US so that my students can have a front-row seat concerning all the players that become involved in the sentencing drama as a death sentence gets ever closer to being carried out.

Against that backdrop, the question in the title of this post arises as a result of the news, reported at the end of this article: Ohio "Governor Kasich has faced calls in recent weeks to spare Tibbetts because attorneys say he suffered from opioid addiction.  On Thursday, a former juror in Tibbetts’ capital murder trial wrote a letter urging Kasich to grant him a reprieve.  The juror said he has since seen mitigating evidence that he had never seen at trial and he would not have recommended the death penalty if he heard about Tibbetts’ history of abuse and addiction."

The full text of the intricate four-page letter from juror Ross Allen Geiger to Ohio Gov Kasich is available at this link.  It makes for an interesting read, and here an excerpt:

All of these things lead me to one conclusion and that is that the system was and seems to be today very flawed in this case.  The State of Ohio (through Hamilton County) called on me to fulfill a civic duty one that included an unenviable task of possibly recommending death for another man.  I fulfilled this duty faithfully. Governor, if we are going to have a legal process that can send criminals to death that includes a special phase for mitigation shouldn’t we get it right?  Shouldn’t the officers of the court (primarily the defense attorneys) treat the life or death phase with great attention to detail and the respect it deserves?

In conclusion, Tibbets is guilty and has forfeited forever his right to freedom.  If the death penalty is reserved for the “worst of the worst”, that is murderers that truly have no potential for redemption, then I ask you to grant mercy to Tibbets.  Based on what I know today I would not have recommended the death penalty....

February 2, 2018 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

US District Judge finds unconstitutional Florida's process to restore voting rights to disenfranchised felons

As reported in this local press article, "Florida routinely violates the constitutional rights of its citizens by permanently revoking the "fundamental right" to vote for anyone convicted of a felony, a federal judge ruled Thursday." Here is more about this notable ruling:

U.S. District Judge Mark Walker said the Florida "scheme" unfairly relies on the personal support of the governor for citizens to regain the right to vote. In a strongly-worded ruling, he called the state's defense of voter disenfranchisement "nonsensical," a withering criticism of Gov. Rick Scott, the lead defendant in the case.

"Florida strips the right to vote from every man and woman who commits a felony," Walker wrote. "To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida's governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration … The question now is whether such a system passes constitutional muster. It does not."

Walker wrote: "If any one of these citizens wishes to earn back their fundamental right to vote, they must plod through a gauntlet of constitutionally infirm hurdles. No more. When the risk of state-sanctioned viewpoint discrimination skulks near the franchise, it is the province and duty of this Court to excise such potential bias from infecting the clemency process."

The judge condemned a system that he said gives "unfettered discretion" to four partisan politicians, and cited as proof a comment Scott made at one hearing when he said: "We can do whatever we want."

Scott's office issued a statement late Thursday, hinting at an appeal. "The discretion of the clemency board over the restoration of felons' rights in Florida has been in place for decades and overseen by multiple governors," said a statement attributed to Scott's communications director, John Tupps. "The process is outlined in Florida's Constitution, and today's ruling departs from precedent set by the United States Supreme Court."...

Scott was the principal architect of the current system that requires all felons to wait at least five years after they complete their sentences, serve probation and pay all restitution, to apply for right to vote and other civil rights. Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases.

Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott's actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress. "We've known this policy was unjust, and today a federal judge confirmed it's also a violation of constitutional rights," Crist wrote on Facebook....

Walker's decision came nine days after the state approved a ballot measure that, if passed in November, would automatically restore the voting rights of about 1.2 million felons, not including convicted murderers and sex offenders. That proposal will appear as Amendment 4 on the Nov. 6 ballot in Florida.

A leader of the initiative is Desmond Meade of Orlando, a law school graduate of Florida International University and a convicted felon waiting to have his rights restored. Meade said the judge's decision validated the work of more than a million Florida voters who signed petitions that helped get the measure on the ballot. "The system is broken, and now we know not only is it broken, but the courts are saying it's unconstitutional," Meade said.

Walker, who was appointed by President Barack Obama, ruled that Florida's lifetime ban on the right to vote violates the First and Fourteenth amendments to the U.S. Constitution, which are the guarantees of freedom of expression, due process and equal protection under law. Throughout his 43-page ruling, Walker cited the arbitrariness of Florida's system. Felons routinely have been denied their voting rights because they have received speeding tickets or failed to pay child support.

"So the state then requires the former felon to conduct and comport herself to the satisfaction of the board's subjective — and frankly, mythical — standards," Walker wrote. "Courts view unfettered governmental discretion over protected constitutional rights with profound suspicion."...

The judge gave both sides in the case until Feb. 12 to file briefings on how to permanently remedy the constitutional deficiencies in Florida's system. Scott and Cabinet members are scheduled to hear the next round of clemency petitions in March.

District Judge Walker's 43-page opinion is available in full at this link.  Because I am a fan of expanding the franchise as much as possible, I am always pleased to see a ruling that has the potential effect of broadening voting rights and remedies.  But because Florida's restoration procedures are styled as a form of clemency and court have historically be chary about finding constitutional problems with or limits on clemency powers, I am unsure if this ruling will withstand likely appeals.

February 2, 2018 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Thursday, February 1, 2018

Prez Trump speaks again about prison reform at the 2018 House and Senate Republican Member Conference  

As noted here a few days ago, President Donald Trump in his very first State of the Union address said that prior reform was on his agenda for the coming year.   Lest anyone think he was not serious about this issue, today in remarks at the 2018 House and Senate Republican Member Conference he spoke again about the topic.  From this official transcript, here is what Prez Trump had to say today:

We can reform our prison system to help those who have served their time get a second chance at life.  And I’ve watched this, and I’ve seen it, and I’ve studied it.  And people get out of prison, and they made a mistake.  And not all — some are very bad, but many are very good.  And they come home and they can’t get a job.  It’s sad.  They can’t — there’s — they can’t get a job.

Now, the best thing we’ve done to fix that, Paul, is the fact that the economy is just booming.  I mean, that fixes it better than any program we can do, anything we can do at all.  But the economy is so strong now and so good, and so many companies are moving in that I really believe that problem — it’s a big problem — is going to solve itself.  But we’re working on it.

I find notable (and a bit amusing) Prez Trump's assertion about prison reform that he has "studied it" (and I am not quite sure what "it" he is referencing).  Moreover, because I hope to see significant reforms coming out of Congress, I am bit concerned that Prez Trump is here also suggesting that the prisoner reentry problem "is going to solve itself."

Still, with Prez Trump's two statements this week about prison reform, following a White House meeting on this issue a few weeks ago, it now seems he is genuinely interested in this topic. That reality bodes well for the prospect of some measure of federal reform making it through Congress and to his desk.  But what developing reform might specifically look like, and just how it gets implemented, are the critical follow-up realities.  And, of course, nothing should be considered a done deal in DC until it is truly a done deal.

A few prior recent related posts:

February 1, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Texas completes its thirs execution of 2018

As reported in this local article, headlined "John Battaglia jokes with his ex-wife before being executed for killing their girls while she listened in horror," a death sentence was carried out tonight in Texas. Here are the details:

John David Battaglia went out with a joke and a grin. Battaglia, 62, offered no apologies and showed no remorse for killing his daughters at his Deep Ellum loft in 2001.

He seemed jovial, strapped to a gurney while witnesses arrived to watch his execution at the state's Huntsville Unit. As they filed in, he looked around and asked, "How many people are there? Oh, that's a lot."

The one-time accountant even said hello to his ex-wife, Mary Jean Pearle, who was there to watch him die. "Well, hi, Mary Jean. I'll see y'all later. Bye," he said. "Go ahead, please."

He closed his eyes for several moments, and shortly after the lethal injection was administered, he looked at the chaplain at his feet, smiled and asked, "Am I still alive?" Battaglia grinned and then sighed. "Oh, here, I feel it," he said. It took about 22 minutes for him to be pronounced dead at 9:40 p.m.

Battaglia was the third man executed this year in the nation, all in Texas, and the second killer from Dallas put to death this week. His execution brought an end to a lengthy legal battle to spare his life. He was twice granted a stay so his mental competency could be evaluated, and his attorneys filed last-ditch efforts Thursday to delay the execution.

Battaglia received national attention in May 2001 after he gunned down his 9-year-old daughter, Faith, and 6-year-old Liberty at his Deep Ellum loft while their mother listened helplessly on the phone. At the time, he was on probation for hitting his ex-wife, the girls' mother, and she had been trying to have him arrested for violating that probation.

"Mommy, why do you want Daddy to have to go to jail?" Faith was told to ask her mother, moments before the girl begged for her life. "No, Daddy. Don't do it."

Last week, his attorneys filed a request for a stay of execution to the U.S. Supreme Court saying that Battaglia did not fully understand why he was being put to death. "Although he is aware of the state's rationale for his execution, he does not have a rational understanding of it," appellate attorneys Michael Mowla and Gregory Gardner wrote.

Battaglia, himself, said in a 2014 interview with The Dallas Morning News that he didn't recall committing the crime and still considered the girls his "best little friends."... In his Texas appeals, his attorneys wrote that Battaglia was "convinced that his trial and conviction were a sham" and that his death sentence was all part of a conspiracy involving "the KKK, child molesters and homosexual lawyers."...

A state judge and the state appeals court, however, described Battaglia as highly intelligent, competent and not mentally ill. They argued he was faking mental illness to avoid execution. Testimony at a hearing showed Battaglia used the prison library to research capital case rulings on mental competence and discussed with his father the "chess game" of avoiding execution....

Pearle, the killer's ex-wife and the mother of his victims, was at the Huntsville Unit on Thursday to witness his execution — almost 17 years after she listened to Faith and Liberty die and pleaded for them to run away from their father. On Thursday, she leaned in as close as she could to the window separating the witnesses from the death chamber. Pearle watched as Battaglia's breathing grew heavy and then stopped. "I've seen enough of him," Pearle said as she walked away.

February 1, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (5)

"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)

Lots of interesting news, notes and commentary as the calendar turns

This time of year always seems busy and dynamic on various fronts, and one manifestation of this reality is my in-box getting way too full of way too many interesting sentencing-related items to blog about at length.  So, to cover lots of ground too quickly, here is a list of links (in no particular order) to pieces that have caught my eye this week:

From Newt Gingrich and Pat Nolan at Fox News here, "Opioid deaths are a health crisis -- Treatment, not jail, is the cure"

From the Collateral Consequences Resource Center here, "Michigan sex offender registration law held unconstitutional"

From Emily Nagisa Keehn and J. Wesley Boyd at The Conversation here, "How mass incarceration harms U.S. health, in 5 charts"

From John Gramlich at Pew Research Center here, "5 facts about crime in the U.S."

From Laura Bogart at The Week here, "Why our true crime obsession is bad for society"

From the Oregon Council on Civil Rights here, "Youth and Measure 11 in Oregon: Impacts of Mandatory Minimums"

From Michelle Phelps at The Crime Report here, "The Lesson of Meek Mill: A Probation System ‘Set Up to Fail’"

From Colin Miller at Evidence Prof Blog here, "Cyntoia Brown & the "51-To-Life" Project: Final Report"

February 1, 2018 in Recommended reading | Permalink | Comments (3)

Wednesday, January 31, 2018

"Focused Deterrence Strategies and Crime Control"

The title of this post is the title of this new article in the latest issue of Criminology & Public Policy authored by Anthony Braga, David Weisburd and Brandon Turchan. Here is its abstract:  

Research Summary

Focused deterrence strategies are increasingly being applied to prevent and control gang and group-involved violence, overt drug markets, and individual repeat offenders.  Our updated examination of the effects of focused deterrence strategies on crime followed the systematic review protocols and conventions of the Campbell Collaboration.  Twenty-four quasi-experimental evaluations were identified in this systematic review.   The results of our meta-analysis demonstrate that focused deterrence strategies are associated with an overall statistically significant, moderate crime reduction effect.  Nevertheless, program effect sizes varied by program type and were smaller for evaluations with more rigorous research designs.

Policy Implications

The available empirical evidence suggests these strategies generate noteworthy crime reduction impacts and should be part of a broader portfolio of crime reduction strategies available to policy makers and practitioners.  Investments still need to be made, however, to strengthen the overall rigor of program evaluations and improve our understanding of key program activities associated with observed crime reduction impacts.

Those unfamiliar with "Focused deterrence strategies" may want to check out this Crime Solutions webpage discussing the concept starting with this description:

Focused deterrence strategies (also referred to as “pulling levers" policing) are problem-oriented policing strategies that follow the core principles of deterrence theory.  The strategies target specific criminal behavior committed by a small number of chronic offenders who are vulnerable to sanctions and punishment.  Offenders are directly confronted and informed that continued criminal behavior will not be tolerated.  Targeted offenders are also told how the criminal justice system (such as the police and prosecutors) will respond to continued criminal behavior; mainly that all potential sanctions, or levers, will be applied.  The deterrence-based message is reinforced through crackdowns on offenders, or groups of offenders (such as gang members), who continue to commit crimes despite the warning.  In addition to deterring violent behavior, the strategies also reward compliance and nonviolent behavior among targeted offenders by providing positive incentives, such as access to social services and job opportunities.

January 31, 2018 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Spotlighting prisoners still stuck in federal prison because of absence of retroactive application of Fair Sentencing Act

Kara Gosch has this new Washington Post commentary headlined "Thousands are stuck in prison — just because of the date they were sentenced." Here are excerpts:

Eugene Downs sits in federal prison years longer than justice demands.  On Aug. 2, 2010, Downs was sentenced to a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack cocaine.  The very next day, President Barack Obama signed the Fair Sentencing Act, a law that limited mandatory minimum sentences for crack cocaine and the number of cases subject to them.

If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years.  Incidentally, Downs’s co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.

Earlier this month, the U.S. Court of Appeals for the 6th Circuit ruled there is nothing it can do to help Downs....

Thanks to efforts from civil rights and criminal-justice-reform organizations, the Obama administration signed onto the Fair Sentencing Act, which reduced the drug quantity ratio between powder and crack cocaine that triggers the mandatory minimums from 100-1 to 18-1.  The law’s disparity is still unjustified, but the 2010 reform was a big step in the right direction.

Unfortunately, the law failed to account for people already in prison under the outdated penalties. According to a document generated by the Sentencing Commission for Congress, 3,147 people could benefit from retroactivity of the law. Eight-nine percent of these prisoners are black. Eugene Downs, who is African American, is just one of them.

Legislation to apply the Fair Sentencing Act retroactively has garnered bipartisan support in Congress. In 2015, the Judiciary committees in both the House and the Senate approved legislation that would have made Downs eligible for early release. Unfortunately, election-season politics and demagoguery from a handful of Republicans, including then-Sen. Jeff Sessions, doomed the bill.

There is some hope: Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) reintroduced the proposal last year with reforms that would reduce sentences for an even greater number of low-level drug offenses. Many of those provisions would be made retroactive. House Republicans have yet to reintroduce a similar bill in their chamber, but Speaker Paul D. Ryan (R-Wis.) has put criminal-justice reform on his list of priorities for 2018.

Still, President Trump has not indicated that he shares in the bipartisan enthusiasm for sentencing reform. While he recently convened a White House meeting with governors and conservative allies to extol the virtues of second chances and rehabilitation, his decision to put Sessions in charge of the Justice Department is not promising.

In any case, the retroactive application of the reformed sentencing laws should be an exception for “tough on crime” crusaders. Sometimes unfair laws punish people who deserve a second chance. We cannot allow the random day on which people are sentenced to prison be their primary obstacle to justice.

Regular readers surely know I am deeply sympathetic to the concept of giving broad retroactive effect to ameliorative changes in sentencing laws.  But the story of Eugene Downs strike me a bit peculiar in this context because, as noted in 2010 posts here and here, the Fair Sentencing Act was approved by both houses of Congress on July 28, 2010 and received plenty of media attention on July 29, 2010.   Arguably, one could blame Prez Obama for Eugene Downs' fate because he waited a week to sign the FSA.  Perhaps more properly, one should probably blame an attorney for Eugene Downs' fate for failing to seek a sentencing continuance in light of a pending critical legal change.

January 31, 2018 in Drug Offense Sentencing, New crack statute and the FSA's impact, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"Top Trends in State Criminal Justice Reform, 2017"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision.  More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole.  Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration.  Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction.  This briefing paper describes key reforms undertaken in 2017.

SENTENCING REFORMS

Lawmakers in several states enacted reforms to reduce the number of persons in prison and improve fairness in the criminal justice system.  Most notably, Louisiana authorized legislation, Senate Bill 139, which expanded probation eligibility to people convicted of third-time nonviolent offenses and first-time low-level violent offenses. The bill also expanded eligibility for treatment alternatives and drug courts.  The state amended parole practices, including lowering time served requirements before parole consideration, and authorized parole consideration for those sentenced to life at a time when their offense-type qualified for parole.  Other states — Arkansas, Hawaii, Michigan, and Montana — adopted a range of reforms, including expanding probation eligibility, reclassifying low-level felonies to misdemeanors, streamlining parole review mechanisms, and limiting prison admissions for technical violations.

January 31, 2018 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Mass molester Larry Nassar in state court for his third and final sentencing

When a person has committed a whole lot of serious crimes, he may well face a whole lot of serious sentencings.  Former doctor Larry Nassar is the latest high-profile example of this reality, and this AP piece reports that he is today in Michigan state court for his third sentencing proceeding.  Here are detail about this final sentencing and some of the continuing buzz about his last state sentencing:

The final sentencing hearing began Wednesday for disgraced former sports doctor Larry Nassar, who will again be confronted by scores of victims as he faces another prison sentence for molesting gymnasts at an elite Michigan club run by an Olympic coach.

Judge Janice Cunningham has set aside several days for roughly 60 people who want to confront Nassar or have their statement read in court. The hearing could unfold much the same as a hearing last week in another county where a different judge allowed more than 150 women and girls to confront Nassar about his abuse. That hearing ended with Nassar getting sentenced to 40 to 175 years in prison, with the judge describing it as Nassar's "death warrant."

The practice of allowing accusers to speak even if they are not tied directly to a case has raised questions about fairness. But attorneys say the victim statements probably pose little risk on appeal, especially since Nassar pleaded guilty, agreed to allow the statements and is expected to get another long prison sentence as part of his deal with prosecutors. "If you get what you bargained for, then you really can't argue that you were prejudiced in any way," said Margaret Raben, former leader of a Michigan association of criminal defense attorneys.

It's not uncommon for prosecutors to introduce "aggravating" evidence at sentencing to support their request for a severe punishment. But the parade of victims offering emotional accounts of their abuse to the face of an abuser went well beyond the typical hearing. Raben said there was a "horrible dynamic" last week in Judge Rosemarie Aquilina's courtroom, even if the judge had the option to allow so many people to speak in a case that involved just seven victims.

"Her obvious delight was just off the wall," Raben said, referring to Aquilina's "death warrant" remark and others. "I am not defending Larry Nassar at all, but what I saw with her was a real abandonment of judicial demeanor. ... The process doesn't change because everybody hates the defendant. That is the absolute glory, or should be, of the American justice system."

A fellow Ingham County judge, William Collette, said Aquilina's handling of the hearing was "outrageous." Others, however, have praised her treatment of victims and their parents.

The case on Cunningham's docket Wednesday in Eaton County centers on Nassar's assaults at Twistars, a Lansing-area gymnastics club that was run by 2012 Olympic coach John Geddert. Nassar admits penetrating three girls with his hands when he was supposed to be treating them for injuries.

So far, 57 victims want to speak in court or submit statements. Attorney Mick Grewal said 11 of his clients have signed up, including some who were inspired by the 150-plus young women and girls who appeared in Aquilina's court. He called it a "cathartic experience." "Now they're at a point in their healing process where they want to confront Larry, and they want to show the world that they are survivors and they are strong and they are part of this movement," Grewal said. "It helps them through the healing process."

He said the Nassar cases are extraordinary in the number of victims who have come forward. "The only case that's out there that's even similar in stature is Penn State, and this is now six times as big as Penn State, maybe seven times," Grewal said, referring to boys who said they were sexually abused by assistant football coach Jerry Sandusky.

Prior related posts:

January 31, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, January 30, 2018

Prez Trump, in his first State of the Union address, mentions "reforming our prisons" and need to "get much tougher on drug dealers"

As had been predicted (see this prior post), President Donald Trump in his very first State of the Union address said that prior reform was on his agenda for the coming year.  But later in this speech, he suggested that he supported an even tougher criminal justice response to our nation's drug problem.  These were both very small parts of a very long speech, and here is the context with key sentences highlighted from this official text

As America regains its strength, this opportunity must be extended to all citizens.  That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance....

In 2016, we lost 64,000 Americans to drug overdoses: 174 deaths per day. Seven per hour.  We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge.  My Administration is committed to fighting the drug epidemic and helping get treatment for those in need. The struggle will be long and difficult — but, as Americans always do, we will prevail.

With these sentences and sentiments, I believe Prez Trump has defined the terms of what is truly possible on the federal criminal justice reform front in 2018. It would seem "back-end" prison reforms to facilitate earlier release from prison for all federal offenders and enhanced reentry efforts are quite possible and may truly be a priority for the Trump Administration; it would also seem that "front-end" sentencing reforms to reduce mandatory minimum terms for drug trafficking offenses many not be possible and may be actively opposed by the Trump Administration. Interesting times.

A few prior recent related posts:

January 30, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Texas carries out its second execution of 2018

As reported in this local article, a "Dallas man who was already on parole for the murder of his estranged wife when he stabbed and strangled his ex-girlfriend in 1999 begged for forgiveness and thanked God with his final breaths before his Tuesday night execution." Here is more:

"I've asked God to forgive me.  Please find it in your hearts to forgive me," William Earl Rayford said before he died by lethal injection at 8:48 p.m.  The 64-year-old asked his victim's family for forgiveness and promised to keep them in his prayers, according to a Texas Department of Criminal Justice spokesman....

The execution, which took 13 minutes to carry out, was delayed more than two hours in light of a pair of pending Supreme Court appeals, including claims that racially biased testimony tainted his sentencing.

With another execution on the calendar for Thursday, this week could be the first time in five years the Lone Star State has seen back-to-back executions so close together.  The next death date on the calendar is for John David Battaglia, who was convicted of killing his two daughters in 2001 while narrating the slayings to his estranged wife on the other end of the phone.  The scheduled execution comes two weeks after Texas carried out the nation's first execution of 2018 with the lethal injection of Houston-area serial killer Anthony Shore.

Rayford was first sent to death row 17 years ago, following the gruesome slaying of Carol Hall. The crime eerily echoed a 1986 killing that netted him a 23-year prison sentence....

In the years since his arrival on death row, Rayford, who is black, has launched appeals centering on claims of bad lawyering, brain damage and a suicide attempt that his lawyers argued showed remorse and hinted that he may not be a future danger.  This week, in a flurry of last-minute filings in the Supreme Court — including one late Tuesday — Rayford's lawyers argued that racially charged testimony during the punishment phase of trial "irreparably stained" the case....  But late Tuesday — after the execution had been delayed for more than two hours — the court rejected both of Rayford's bids for reprieve....

Last year, Texas led the nation in executions with seven condemned men put to death. The Lone Star State is the only state to execute a prisoner so far this year. Rayford's execution was the second nationwide this year.

January 30, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (5)

A SCOTUS amicus opportunity to reiterate some of my views on sentence finality

The Supreme Court has three(!) upcoming arguments concerning the proper application of the federal prison term modification rules that Congress set out in 18 U.S.C. § 3582(c)(2): Hughes v. United States and Koons v. United States are due to be argued March 27, and Chavez-Meza v. United States will likely be argued in late April.  The fact that the SCOTUS has decided to take up three cases dealing with § 3582(c)(2) highlights the range of intricate issues that sentence modification motions can present.  And the first of these cases, Hughes, deals with the initial issue of who is even eligible for sentence modification and presents further questions about how to deal with the 4-1-4 divide among the Justices in the leading prior ruling of Freeman v. United States, 564 U.S. 522 (2011).

As readers know, I have written up some of my perspectives on "sentence finality" in an law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in a number of prior posts (some of which are reprinted below).  I was encouraged recently to channel some of these ideas into an amicus brief in Hughes, and a terrific set of lawyers at Sidley Austin LLP played the leading and central role in making this amicus brief a reality.  Here is the "Summary of Argument" from this just-filed brief:

The standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol’y 151, 174–75 (2014). Through sentence-modification provisions like the one at issue in this case, see 18 U.S.C. § 3582(c)(2), Congress has expressed its concerns for those other criminal justice interests by creating a significant sentencing exception to the usual presumption in favor of finality.  Appreciating the importance of getting sentences right while an offender is still serving a prison term, Congress has astutely elevated substantive sentencing goals like accuracy, fairness, and uniformity over concerns about finality in this context.  Section 3582(c)(2) serves well the purposes of fitness and fairness: its sentence-modification provisions eliminate unwarranted disparities in federal sentencing, promote the government’s legitimate substantive penological interests, foster societal respect for the criminal justice system, and save long-term costs associated with excessive terms of incarceration.

The question of statutory interpretation presented in this case, i.e., what does the term “based on” mean, should be resolved in favor of clear congressional policy and purpose. Defendants who commit crimes of similar severity under similar conditions should receive similar sentences.  When it is functionally apparent that a particular amended guideline was applicable in a defendant’s case, it ought not matter whether that defendant’s plea agreement contained calculations applying the since-reduced guideline.  A contrary interpretation, one that unnecessarily narrows eligibility for relief under § 3582(c)(2), would turn congressional policy on its head, wrongly elevate finality interests over those Congress sought to champion, and lead to systemic injustice.  The Court should take this opportunity to embrace a broad interpretation of “based on” that comports with overriding congressional policy.  Accordingly, petitioner should be eligible for relief under § 3582(c)(2) because his sentence was “based on” a Guidelines range that has been subsequently lowered.

Some (of many) prior posts on sentencing finality:

January 30, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"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

Is Prez Trump really going to talk about criminal justice and prison reform in his first State of the Union address?

Images (7)The question in the title of this post is prompted by this notable report from Jim Geraghty at the National Review headlined "Expect Criminal-Justice and Prison Reform from President Trump Tuesday Night."  Here is what he is predicting:

Let’s start this week off with some news: President Trump will talk about criminal-justice reform and prison reform in his State of the Union address Tuesday night.

For several months now, the president’s son-in-law and key adviser Jared Kushner has had monthly meetings with Mark Holden, Koch Industries general counsel; Brooke Rollins, president of the Texas Public Policy Foundation; and Doug Deason, a wealthy businessman and advocate for criminal-justice reform. The conservative groups aim to bring prison reforms and anti-recidivism programs that have achieved sterling results in Texas and Georgia to the nation’s federal prison system.

About 10 percent of all incarcerated individuals in the United States are in federal prison. “If they were a state, they would be the largest state in the country,” Deason said. To bring these kinds of anti-recidivism programs to federal prisons, “all it requires is an executive order instructing Jeff Sessions to open up the Bureau of Prisons to outside service providers,” he explained. “Right now they do so, but only on a very limited basis.”

The Koch network hopes to add momentum to the effort with new initiative called Safe Streets and Second Chances, which will research the most effective methods across eight prisons in Florida, Texas, Pennsylvania, and Louisiana, featuring a “randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities.” The research will be directed by Dr. Carrie Pettus-Davis of Washington University in St. Louis. The aim is to provide “a counselor for a prisoner from the time he enters prison to years after he’s left, to stop this cycle of recidivism,” Deason said, and “have them leave better equipped to be a productive member of society than when they went in.”

Deason characterizes Sessions as open to proposals on prison reform and programs focused on a prisoner’s re-entry into society, but still “closed-minded” on reducing mandatory minimum sentences.

Interestingly, and perhaps enhancing my basis for reasonably hoping Prez Trump brings up this topic, this CNN article has different Senators talking about what they hope to see in the SOTU speech, and it includes this tidbit:

"I talked to the President about talking about prison reform," Sen. John Cornyn of Texas said, which is "something I've been working on, something I know that he and others are interested in."

Inspired by these reports, we ought to collectively work on a 2018 State of the Union drinking game.  Perhaps it ought to be a gulp of beer or a sip of wine/liquor for every time Prez Trump says prison reform or job training or mentoring or addiction treatment.  And if he says mandatory minimums or sentencing guidelines need to be reformed, I will buy a round for everyone!

A few prior recent related posts:

UPDATE: I just noticed this White House webpage detailing "Special Guests for the State of the Union Address." Because it does not seem that any of the special guests have a prison past, I am now doubting prison reform is getting any significant attention in the speech. Some of the listed guests, though, do suggest some other criminal justice issues will be getting mentioned:

Elizabeth Alvarado, Robert Mickens, Evelyn Rodriguez, and Freddy Cuevas are the parents of Nisa Mickens and Kayla Cuevas, who had been close friends since elementary school, but in September 2016, the two girls were chased down and brutally murdered by MS-13....

Police Officer Ryan Holets and his wife adopted a baby from parents who suffered from opioid addiction, breaking down walls between drug addicts and police officers to help save lives....

Agent CJ Martinez has spent much of his 15-year tenure working with the United States Immigration and Customs Enforcement’s Homeland Security Investigations to dismantle criminal organizations, resulting in more than 100 arrests of MS-13 gang members who were prosecuted for crimes including homicide, assault, and narcotics and weapons trafficking.

January 29, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Two notable new reports urging big reductions in population on probation and parole

Capture jllAs detailed in this press release, "two new reports were released today – one national in scope and one focused on New York City and State — looking at probation and parole as key drivers of mass incarceration with minimal benefit to public safety or individual rehabilitation."  Here is more from the release:

The reports argue that the tremendous growth of people locked up for probation and parole violations — many of which are for minor, technical violations — is financially taxing on the corrections system and should be cut in half.

The national report, Too Big to Succeed was released by the Justice Lab at Columbia University and signed by 20 of the nation’s leading corrections administrators. According to the new report, there are nearly five million adults under community corrections supervision in America (more than double the number in prison and jail).  The almost four-fold expansion of community corrections since 1980 without a corresponding increase in resources has strained many of the nation’s thousands of community supervision departments, often unnecessarily depriving clients of their liberty without improving public safety.

Underfunded and with few alternatives, community corrections officers have learned to default to the most available option they have for those who violate the terms of their supervision — prison.  Many are reincarcerated for nothing more than a technical violation.  Regrettably, these punishments fall most heavily on young African American men....

The New York report, Less is More in New York, notes that while crime is declining in the City and jail populations have dipped below 9,000 for the first time in 35 years, only one population has increased — those in city jails for state parole violations (by 15%).  And 81% of those incarcerated in city jails for parole violations are either in for technical violations, misdemeanors, or non-violent felony arrests.

As state and city leaders agree that the jail complex on Rikers Island should be closed requiring a reduction in the NYC jail population, the report argues that the solution could be reducing unnecessary incarceration of persons on parole as well as to shrink the overall parole population and focus supervision and supports on those who need it the most.

Here are the full titles of these reports and links thereto:

January 29, 2018 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

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)

"The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges"

The title of this post is the title of this notable new empirical article authored by Will Dobbie, Jacob Goldin and Crystal Yang appearing in the American Economic Review. Here is the abstract:

Over 20 percent of prison and jail inmates in the United States are currently awaiting trial, but little is known about the impact of pretrial detention on defendants.  This paper uses the detention tendencies of quasi-randomly assigned bail judges to estimate the causal effects of pretrial detention on subsequent defendant outcomes.  Using data from administrative court and tax records, we find that pretrial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas.  Pretrial detention has no net effect on future crime, but decreases formal sector employment and the receipt of employment- and tax-related government benefits.  These results are consistent with (i) pretrial detention weakening defendants' bargaining positions during plea negotiations and (ii) a criminal conviction lowering defendants' prospects in the formal labor market.

January 29, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, January 28, 2018

Lots of interesting pieces in inaugural volume of Annual Review of Criminology

I just saw the first issue of the Annual Review of Criminology here, and so many of the impressive articles are now at the top of my ever-growing "to read" list.  These pieces (among many in the big issue) are likely to be of particular interest to sentencing fans:

January 28, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Noticing that ALEC is now joining growing calls for reforming drug-free zone laws

Regular readers likely remember some recent and many older posts discussing the problems with drug-free zone laws that can sometimes result in first-time and low-level drug offenders facing and receiving extreme prison sentences when just happening to be inadvertently in the wrong place at the time of their offense.  Via this post at Reason, headlined "ALEC Urges State to Reform Drug-Free School Zone Laws," I see that a not-so-usual suspect is now calling for the reform of these laws. Here are the details (with links from the original):

The American Legislative Exchange Council (ALEC), a conservative, pro-business organization that drafts model bills for state legislatures, passed a resolution Friday urging states to reform their drug-free school zone laws.  The conservative group is the latest in a growing bipartisan chorus opposing punitive drug-free school zone laws, which exist in all 50 states and the District of Columbia.

"Most Drug-Free Zone laws were established decades ago," the resolution says, "but have not been reformed despite evidence that Drug-Free Zones are arbitrary and often unnecessarily broad, are ineffective at deterring drug- related crime, and create significant unintended consequences, including unwarranted disparate impacts on minority defendants."

That's exactly what a December Reason investigation into Tennessee's Drug-Free School Zone Act found.  Tennessee's drug-free school zones extend 1,000 feet from the real property of every school, library, park, and daycare in the state. Using GIS data obtained from the state, Reason found there were 8,544 separate drug-free zones in Tennessee, amounting to 5 percent of the overall area of the state and 26 percent of urban areas.

Those enhanced sentencing zones were rarely, if ever, used to prosecute drug crimes involving children, according to interviews with prosecutors and defense attorneys. But they did result in first-time and low-level drug offenders receiving longer prison sentences than if they had been found guilty of second-degree murder or rape. Sentencing data also showed wide racial disparities in who received drug-free school zone sentences, with blacks making up 69 percent of all current inmates serving time for violations of the act, despite only making up 17 percent of the state population. The zones, which tend to cluster in low-income and minority neighborhoods, also give prosecutors immense leverage to squeeze plea deals out of defendants.

Several states have passed reforms to their laws over the past decade, shrinking the size and number of zones. The Tennessee legislature is considering a similar reform this year to shrink its zones from 1,000 feet to 500 feet. A bipartisan group of civil liberties and criminal justice organizations are supporting the bill, such as Families Against Mandatory Minimums (FAMM). Conservative lawmakers recognize that drug-free school zone laws have proven to be a costly failure," FAMM president Kevin Ring said in a statement on the ALEC resolution. "These laws stick low-level offenders with long sentences even when no children are involved and, as a result, they waste resources that could be better spent on more serious offenders."

A few of many prior related posts:

January 28, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | 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)

Friday, January 26, 2018

SCOTUS (surprisingly?) stays scheduled Alabama execution

As reported in this local article, headlined "Execution called off for Alabama inmate Vernon Madison," the Supreme Court last night got in the way of a state's effort to carry out a death sentence for a man first convicted of killing a police office back in 1985(!). Here are some details and background:

Vernon Madison, one of the longest serving inmates on Alabama's Death Row, was scheduled to be executed at 6 p.m. Thursday, but 30 minutes before the scheduled execution the U.S. Supreme Court issued a temporary stay. The stay was later granted, and Madison's execution called off.

Madison, 67, has been on death row for over 30 years after being convicted in April 1985 of killing Mobile police Cpl. Julius Schulte. He was set to die by lethal injection at Holman Correctional Facility in Atmore Thursday night, but escaped execution for the second time via a court order.

Madison was 34 when he was charged Schulte's death, who was responding to a domestic disturbance call. Madison also was charged with shooting the woman he lived with at the time, 37-year-old Cheryl Ann Greene. She survived her injuries....

Madison's first trial took place in September 1985. He was convicted, but a state appellate court sent the case back for a violation involving race-based jury selection. His second trial took place in 1990. Prosecutors presented a similar case, and defense attorneys again argued that Madison suffered from a mental illness. They did not dispute the fact that Madison shot Schulte, but said he did not know that Schulte - dressed in plain clothes and driving an unmarked police cruiser - was a police officer.

He was again convicted, and a jury recommended a death sentence by a 10-2 vote. An appellate court again sent the case back to Mobile County for a retrial, this time based on improper testimony from an expert witness for the prosecution.

His third and final trial took place in April 1994. He was convicted, and the jury recommended a life sentence after both Madison and his mother, Aldonia McMillan, asked for mercy. Mobile County Circuit Judge Ferrill McRae sentenced Madison to death-- this time overriding the jury's recommendation.

In April 2017, Gov. Kay Ivey signed into law a bill that says juries, not judges, have the final say on whether to impose the death penalty. That law officially ended Alabama's judicial override policy, as Alabama was the last state to allow it.

Late Wednesday, Madison's attorneys filed two more petitions to the U.S. Supreme Court-- an application for a stay of execution, and a petition for a writ of certiorari focused on the issue of judicial override. Madison's attorneys argued that since he was sent to death under the judicial override statue, he is entitled to a stay and a review of his case. Attorneys filed similar motions to the Alabama Supreme Court, but they denied the request earlier Wednesday. "Because a death sentence is no longer permissible in cases where the jury has returned a sentence of life, Mr. Madison filed a challenge to his death sentence and scheduled execution in the Alabama Supreme Court. He contended that this execution would be arbitrary and capricious and constitute a violation of the Sixth, Eighth and Fourteenth Amendment," the petition states. "The judicial override in this case resulted in a death sentence that is arbitrary, disproportionate, and unconstitutional..." Madison was first scheduled to be executed by lethal injection in May 2016, but there was a temporary delay. Hours after that execution's scheduled time, the U.S. Supreme Court issued a ruling upholding an 11th Circuit Court of Appeals stay of execution. The AG's Office filed responses in opposition to those petitions. In November 2017, the U.S. Supreme Court unanimously reversed that decision, paving the way for Madison to be executed.

Last month, Madison's attorneys from the Equal Justice Initiative filed a petition in Mobile County court to stay Madison's execution, but after a hearing the judge in that case denied the request for a stay of execution. Bryan Stevenson, founder of the EJI and one of Madison's attorneys, then filed two new petitions to the U.S. Supreme Court: One for a stay of execution, and one asking the court to review the case. The AG's Office also filed responses to those requests....

Around 5:30 p.m., the U.S. Supreme Court issued a temporary stay of execution, but the stay was granted at 8:10 p.m. Madison will not be executed Thursday night, and the AG's office must request a new execution date from the state supreme court.

The Supreme Court's order states the stay is in place until the justices decide whether they will grant Madison's writ of certiorari, or if they will review the case. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would deny the application for stay, the order said.

Without seeing all the filings, it is hard for me to tell at this stage whether this stay could be a big deal for death penalty jurisprudence generally. But it is obviously a big deal for any and everyone connected to this defendant, his victims and perhaps all capital lawyers in Alabama.

UPDATE: A commentor and a tweet alerted me to this report from Chris Geidner at BuzzFeed News headlined "The Supreme Court Stopped Alabama From Executing A Man Over Competency Questions." Here is how this piece accounts for the stay:

The Supreme Court on Thursday night halted the scheduled execution of Vernon Madison, who was set to face lethal injection in Alabama for the 1985 murder of a police officer.

The stay of execution was granted by the court while the justices consider whether to take up Madison's case in which his lawyers argue he is no longer competent to face execution, noting this he has been diagnosed with vascular dementia and "is unable to recollect the sequence of events from the offense, to his arrest, to his trial and can no longer connect the underlying offense to his punishment." Alabama's lawyers opposed the request.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have allowed the execution to proceed. At least five justices had to vote to grant the stay of execution, but justices do not have to announce their vote on stay applications like Madison's stay request, so the exact vote tally — and the votes of the other justices — is not known publicly.

I have changed the title of this post to reflect my own uncertainty about the stay's terms.

January 26, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

New poll suggests strong bipartisan support for criminal justice reforms

JAN_Web-LogoThis new article from The Hill, headlined "Poll: 3/4 of Americans support criminal justice reform," provides highlights from a notable new survey:

Three-quarters of Americans think the nation’s criminal justice system needs to be significantly improved, according to a new poll out Thursday....

A Justice Action Network poll conducted by Robert Blizzard, a partner at the Republican-leaning Public Opinion Strategies, found a majority of Americans surveyed, 76 percent, believe that the country’s criminal justice system needs significant improvements.

Of the 800 registered voters polled between Jan. 11 and 14, 87 percent of Americans agree that some of the money being spent on locking up nonviolent offenders should be shifted to alternatives like electronic monitoring, community service and probation.

Two-thirds of voters — 65 percent — support fair chance hiring, and 87 percent of voters strongly support replacing mandatory minimum prison sentences for non-violent offenders with a system that allows judges more discretion.  Eighty-five percent of voters, meanwhile, agree that the main goal of the nation’s criminal justice system should be rehabilitating people to become productive law-abiding citizens.

Many more of the poll particulars are available via this Justice Action Network press release and through this PowerPoint.  The press release emphasizes reasons why politicians should be paying attention to these issues:

[V]oter support for bipartisan justice reforms is overwhelmingly high, especially among women, who remain a crucial voting bloc heading into the 2018 midterm elections, and may determine the makeup of the House in November....

“This is not a partisan issue–voters strongly believe that the country’s criminal justice system needs serious improvements,” said Robert Blizzard, Partner at Public Opinion Strategies. “Significant majorities of Republican and Democratic voters across the country favor these reforms, including key 2018 target constituencies like independent voters and women voters. I can’t emphasize enough how strongly voters support these reforms. As a political pollster looking towards 2018 I think all politicians should pay attention. Go back to 2006, women voted for the democratic candidate by double digits. In 2010, women favored the GOP candidate and helped deliver the house to Republicans. Key constituencies are strong on these reforms and they can help give a lift to candidates everywhere.”

January 26, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Still more notable commentary on judicial conduct in sentencing of mass molestor

Perhaps unsurprisingly, lots of folks are still discussing Larry Nassar's state sentencing (basics here), with a number of commentators taking issues with the judge's comments while imposing his sentence and others praising how the entire sentencing was handled.  Here is just a sampling of some of what has caught my eye on this front:

My own thoughts on this matter keep returning to the essential fact that Nassar's state sentencing was much more symbolism than substance from the very start given that he had already received a functional LWOP sentence in federal court AND the fundamentals of his state sentence were largely established by his plea bargain. In this context, I suppose it is not too surprising that so many folks are so caught up in the particulars of the symbolism of how the judge conducted this unique sentencing hearing and spoke sharply to the defendant. But I still find myself ultimately much more interested by and concerned about the work of sentencing judges when it really makes a substantive difference.

Prior related posts:

January 26, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

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)