Friday, January 26, 2018

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)

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

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

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

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

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

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

Wednesday, January 24, 2018

Encouraging new report on prospects for prison reform legislation emerging from Congress

This report from The Hill, headlined "Prison reform gains new momentum under Trump," suggests that recent talk from the White house about prison reform might soon become real action from Congress.  Here are the details of an encouraging story:

Momentum is building under the Trump administration for criminal justice reform. The path forward, however, is looking a little different than it has in the past.

Previous efforts to reform the justice system have focused on cutting prison time for convicted felons. But those taking part in the current discussions say the focus has shifted to preventing ex-convicts from returning to jail, suggesting this approach has the best chance of winning approval from both Congress and the White House.

A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill offered by Rep. Doug Collins (R-Ga.) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April.

The Prison Reform and Redemption Act, co-sponsored by eight Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates. The legislation directs the attorney general to identify the most effective programs, which could include everything from job and vocational skills training to education and drug treatment....

Senate Majority Whip John Cornyn (R-Texas) has introduced similar legislation in the Senate along with Sen. Sheldon Whitehouse (D-R.I.). Collins and Cornyn are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

President Trump and Jared Kushner, Trump’s son-in-law and senior adviser, have met with lawmakers and advocates to talk about prison reform and the success states have had in the last few months, signaling there’s White House support for legislation. “The administration strongly believes that prison reform is a conservative issue that will help reduce crime and save taxpayer dollars and has the potential to gain bipartisan support,” a White House source said.

Bipartisan criminal justice reform efforts until now have largely focused on proposals to reduce mandatory minimum sentencing for certain nonviolent drug offenders and armed career criminals.  While talks now appear focused on prison reform, advocates say sentencing reform isn’t off the table just yet.

Brooke Rollins, president and CEO of the Texas Public Policy Foundation, which started the national Right on Crime campaign, said there’s more divisiveness around sentencing reform. “My best educated guess is that at some point that will become part of the discussion, but right now there is an encouraging [group] coalescing around prison reform.”

Rollins notes that criminal justice reform is a big issue and commended the administration for tackling it one piece at a time. “When trying to get it done all at once, you often end up with nothing,” she said. “I think this administration is smart to focus on prison reform for now.”

I share the view that an effort to get everything in one big reform bill can sometimes prevent getting any bill through the legislative process. And given that a good prison reform bill with lots of potential sentence-reduction credits could prove even more consequential for current and future federal prisoners than even broad mandatory minimum reforms, I am especially encouraged by the prospect of a prison reform bill being the first priority for Congress in the months ahead.  Of course, as with all parts of sentencing reform, the devil is in the details; I will not get to revved up about possible reform until the particulars are made public.  But this report heightens my hope that some significant federal reform may actually get done in the first part of 2018.

Recent related post:

January 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

January 24, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9)

Notable new initiative, Safe Streets & Second Chances, taking "evidence-driven approach to the chronic issues of recidivism"

Sssc_socialAs reported in this new article from The Hill, the "donor network helmed by billionaire brothers Charles and David Koch is putting $4 million behind a pilot program aimed at reducing recidivism rates among former prisoners." Here is more: 

The effort, called Safe Streets and Second Chances, launches Wednesday in four trial states — Texas, Florida, Pennsylvania and Louisiana.  The 1,000 participants will come from a mix of rural and urban communities and will receive “individualized reentry” programs and have their progress tracked.

The program is led by the Texas Public Policy Foundation and Dr. Carrie Pettus-Davis, an author and professor who says the U.S. prison system is focused too much on punishment and not enough on rehabilitation.

“This unique initiative marries research-driven policy and reentry services reforms,” Pettus-Davis said in a statement.  “Even though incarceration and reentry impacts millions of people’s lives in our country, there is a huge void in research on creating a successful transition of people from prison back home to our communities. We’re closing the gap.”

The webpage announcing the launch of the new Safe Streets & Second Chances initiative provides this additional information:

Today, a new initiative is being launched to reduce the high rate of recidivism by effectively rehabilitating and equipping incarcerated individuals with the tools they need to return home and become productive members of our communities. Called Safe Streets & Second Chances, the new effort uses proven approaches underpinned by academic research to develop comprehensive reentry activities for those releasing from prison to ensure they are successful once home in our communities.

Nearly 700,000 Americans will be released from prison this year, yet close to 70 percent of them are expected to return to prison within five years. This alarmingly high rate of recidivism endangers America’s communities, traps individuals — many of them non-violent offenders — in a cycle of incarceration, and costs taxpayers billions of dollars each year. It’s a problem largely due to criminal justice policies that focus on punishment, but too often fail to implement effective interventions that correct people both in prison and upon release.

Safe Streets & Second Chances takes an evidence-driven approach to the chronic issues of recidivism. This initiative crafts individualized reentry approaches informed by the latest academic research to shift the outcome focus of our criminal justice system from whether individuals are punished to whether they are improved, rehabilitated, and capable of redemption.

Led by author and renowned scholar Dr. Carrie Pettus-Davis, the research component of the new effort will include a four-state, eight-site, randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities. The four states being examined include Florida, Texas, Pennsylvania and Louisiana.

DISCLOSURE: As detailed in this prior post, the new Drug Enforcement and Policy Center (DEPC) I am helping to get started at The Ohio State University Moritz College of Law was made possible by a gift from the Charles Koch Foundation.

January 24, 2018 in Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

"Who Killed Habeas Corpus?"

The title of this post is the title of this short paper authored by US District Judge Lynn Adelman recently made available to SSRN that a helpful reader made sure I did forget to post. Here is the abstract:

This article discusses the recent history of the writ of habeas corpus, once known as the Great Writ of Liberty, and concludes that the end result has been tragic.  Because of unwise decisions made by all three branches of government, Congress, the President, and the Supreme Court, the writ has largely been destroyed as an effective remedy for individuals who are imprisoned as a result of a violation of their federal constitutional rights by a state court.  The article notes that under Chief Justices Burger and Rehnquist the Supreme Court established a number of restrictions on the right of state prisoners to obtain federal habeas review.

Then, in 1996, a Republican Congress passed an extremely repressive bill entitled the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) that imposed additional restrictions on the Great Writ.  Particularly objectionable are provisions requiring federal courts to defer to erroneous but reasonable state court interpretations of the Constitution and barring federal courts from relying on any authority other than clearly established Supreme Court precedent. Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, President Clinton signed the bill into law.

Since then, the Supreme Court has consistently interpreted the law so as to make it even more harmful to prisoners seeking to overturn unconstitutionally obtained state convictions.  The article contends that the loss of habeas corpus is profound because the writ is urgently needed.  This is so because, as state judicial elections have become increasingly contested, increasingly partisan, and increasingly well-financed, it is increasingly difficult for state court judges, who unlike federal judges do not have life tenure, to protect criminal defendants’ constitutional rights. As a result, too many people spend too many years in prison as a result of convictions involving violations of their constitutional rights.

January 24, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, January 23, 2018

New FBI crime data on first half of 2017 show encouraging declines in all areas except murder and car thefts

LargeThis new news release from the FBI, headlined "2017 Preliminary Semiannual Crime Statistics Released: Stats Show Slight Crime Decline in First Half of 2017," reveals some generally positive crime news for the start of 2017. Here are the basics:

Preliminary statistics show declines in the number of both violent crimes and property crimes reported for the first half of 2017 when compared with the first half of 2016, according to the FBI’s Preliminary Semiannual Uniform Crime Report, January - June 2017, released today. The report includes data from more than 13,000 law enforcement agencies nationwide that submitted crime data to the FBI’s Uniform Crime Reporting (UCR) Program.

According to the report, overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016, though the number of murders and non-negligent manslaughters reported increased by 1.5 percent.  Additionally, the number of rapes (revised definition) decreased 2.4 percent, robberies decreased 2.2 percent, and aggravated assaults were down 0.1 percent.

Overall reported property crime offenses dropped 2.9 percent in the first half of 2017 compared with the first half of 2016. Burglaries decreased 6.1 percent, and larceny-thefts decreased 3 percent.  One area of property crime that did rise was motor vehicle thefts, with a 4.1 percent increase.

This FBI table providing year-to-year trends of the last four years provides a little more context for this latest data.  It is especially encouraging to see violent crime start to tick down after two years of increases, but the continued increase in murders remains disconcerting coming on the heels of two prior years of increases.  As has been the case in recent years, I suspect the homicide story is a dynamic region-specific tale with divergent numbers and stories in different cities.  Indeed, this FBI chart with population breakdowns and this FBI chart with regional breakdowns seem to indicate that mid/large-sized cities in the Midwest and South account for much of the increases in murders in the first part of 2017.

UPDATE: Attorney General Jeff Sessions already has penned this commentary published by USA Today touting the good news in this new FBI crime data. Here are parts of the piece:

When President Trump was inaugurated, he made the American people a promise: “This American carnage stops right here and stops right now.” It is a promise that he has kept....

Trump ran for office on a message of law and order, and he won. When he took office, he ordered the Department of Justice to stop and reverse these trends — and that is what we have been doing every day for the past year.

We have placed trust in our prosecutors again, and we’re restoring respect for law enforcement. We have invested in new resources and put in place smarter policies based on sound research.

Ensuring every neighborhood in America is safe again will take time, but we are already starting to see results.

In 2017, we brought cases against more violent criminals than in any year in decades.  We charged the most federal firearm prosecutions in a decade. We convicted nearly 500 human traffickers and 1,200 gang members, and helped our international allies arrest about 4,000 MS-13 members.  We also arrested and charged hundreds of people suspected with contributing to the ongoing opioid crisis.

Morale is up among our law enforcement community.  Any loss of life is one too many, but it is encouraging that the number of officers killed in the line of duty declined for the first time since 2013, reaching its second lowest level in more than half a century.  And we are empowering and supporting our critically important state, local and tribal law enforcement partners as we work together to protect communities from crime.

In the first six months of last year, the increase in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress. For the first time in the past few years, the American people can have hope for a safer future.

Our strategy at this department of concentrating on the most violent criminals, taking down violent gang networks, prioritizing gun prosecutions, and supporting our state, local and tribal law enforcement partners has proven to work.  Of course, our work is not done. Crime is still far too high — especially in the most vulnerable neighborhoods.

This first year of the Trump era shows once again that the difficult work we do alongside our state, local and tribal law enforcement partners makes a difference. Crime rates are not like the tides — we can help change them.  And under Trump’s strong leadership, we will.

I fear that AG Sessions may be taking a victory lap a bit too early based on just a small bit of data from the first half of 2017.  But this commentary references positive "data for the rest of the year," and that lead me to think he has a reasonable basis to expect subsequent crime data reports for 2018 to also be positive.  Given that crime rates are already pretty low by historical standards, I rather like that AG Sessions is already prepared to "take ownership" of crime data.  Consequently, if crime continues to trend down, he certainly can and will be in a position to take credit.  And if crime does not continue to trend down, he will have some explaining to do. 

January 23, 2018 in National and State Crime Data, Offense Characteristics | Permalink | Comments (2)

Lots of notable arrest data in Drug Policy Alliance report on marijuana legalization states

Status-report-coverThe reform advocacy organization Drug Policy Alliance has released today this big new data-dense report titled "From Prohibition to Progress: A Status Report on Marijuana Legalization; What We Know About Marijuana Legalization in Eight States and Washington, D.C."   I have already blogged about this report in general terms over at Marijuana Law, Policy & Reform, but I suspect sentencing reform fans might find interesting what this report says about marijuana arrest rates and related criminal justice issues. 

Particularly interesting for criminal justice fans, especially those interested in or concerned about low-level offense enforcement, are the DPA report's detailed arrest data for every marijuana legalization state in the Appendix.  Here is a portion of how the DPA report discusses these data:  

Arrests in all legal marijuana states and Washington, D.C. for the possession, cultivation and distribution of marijuana have plummeted since voters legalized the adult use of marijuana, saving those jurisdictions hundreds of millions of dollars and preventing the criminalization of thousands of people.

Across legal marijuana states and Washington, D.C. the number of arrests for marijuana law violations has declined dramatically (as shown in Chart 2). In Alaska, the number of marijuana arrests for possession and sales/manufacturing declined by 93 percent from 2013 to 2015, from 845 to 60 (see Appendix C). In Colorado, marijuana arrests declined by 49 percent from 2012 to 2013 (12,894 to 6,502). The number of marijuana arrests increased by 7 percent in in 2014 (7,004), yet remained 46 percent lower than in 2012 (see Appendix E). The total number of marijuana‐related court filings in Colorado declined by 81 percent between 2012 and 2015 (10,340 to 1,954), and marijuana possession charges dropped 88 percent (9,130 to 1,068).

In Oregon, the number of marijuana arrests declined by 96 percent from 2013 to 2016 (6,996 to 255) (see Appendix H). The total number of low-level marijuana court filings in Washington fell by 98 percent between 2011 and 2015 (6,879 to 120) (see Appendix I). Marijuana possession convictions in Washington decreased by 76 percent from 2011 to 2015 (7,303 to 1,723). In Washington, D.C., marijuana arrests decreased 76 percent from 2013 to 2016 (3,450 to 840), with possession arrests falling by 98.6 percent, from 2,549 in 2013 to 35 in 2016....

It is widely acknowledged that racial disparities exist in the enforcement of marijuana laws in this country – Black and Latinx people are more likely to be arrested for marijuana law violations than White people, despite similar rates of use and sales across racial groups. Marijuana legalization has dramatically reduced the number of Black and Latinx people arrested for marijuana-related conduct, yet racial disparities persist. Initial data show that while legalization substantially reduced the total number of Black and Latinx people arrested for marijuana offenses, it did not eliminate the forces that contributed to the disparity in the first place, such as the overpolicing of low-income neighborhoods, racial profiling, and other racially motivated police practices.

In Colorado, for example, White people benefitted most from the declines in marijuana arrests, which decreased by 51 percent, compared to 33 percent for Latinx people, and 25 percent for Black people between 2012 and 2014. The marijuana arrest rate for Black people (348 per 100,000) in Colorado was nearly triple that of White people (123 per 100,000) in 2014. The post-legalization arrest rate for Black individuals in Washington is reported to be double the arrest rate for other races and ethnicities. In Alaska, both Black and White people experienced dramatic declines in marijuana arrests between 2013 and 2015, 95 and 92 percent respectively, yet disparities remain (see Chart 17 below).  Of the 17 marijuana arrests in Alaska in 2016, 29 percent were of Black people (a racial group that comprises only 4 percent of the state’s population). Alaska’s marijuana arrest rate for Black people (17.7 per 100,000) is ten times greater than that of White people (1.8 per 100,000). A similar pattern has emerged in Washington, D.C....

In several states, marijuana legalization for adult use has had the unintended consequence of reducing historically high numbers of youth (under 18 years of age) and young adults (between 18 and 20 years old) stopped and arrested for marijuana offenses. However, these reductions are inconsistent from state-to-state and, in some circumstances, youth now comprise a growing number of people charged with marijuana offenses.

Between 2012 and 2015, marijuana court filings in Colorado fell 86 percent for adults 21 years of age and older, and they declined by 69 percent for youth under 18 years of age and 78 percent for young adults 18-to-20 years old.190 Arrests followed a similar trend in the state between 2012 and 2014 wherein the marijuana offense arrest rate for adults 21 and older decreased by 79 percent and young adults 18-to-20 years old experienced a 34 percent decrease in marijuana arrest rates.191 At the same time, the number of youth under 18 years of age cited for marijuana offenses increased by five percent, which amounts to a one percent increase in the rate per 100,000.192

In Oregon, marijuana arrest rates declined by 92 percent between 2013 and 2015 for adults 18 years of age and older, compared to 80 percent for youth under 18 years of age (See Chart 21). In 2016, the marijuana arrest rate for Oregon youth (19.1 per 100,000) was nearly 7 times the adult rate (2.8 per 100,000).193 Similarly, in Washington, marijuana possession convictions declined by 99.1 percent for adults 18 years of age and older and 56 percent for youth under 18 years of age between 2012 and 2015. In 2015, 98 percent of all marijuana possession convictions in Washington (1,691 of 1,723) were of youth.

January 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"The 'New' District Court Activism in Criminal Justice Reform"

The title of this post is the title of this interesting new paper authored by Jessica Roth now available via SSRN. Here is the paper's abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals.  It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.”  This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other.

To that end, the Article focuses on a cohort of deeply respected federal district judges — many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York — who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system.  These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch.  This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

January 23, 2018 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Monday, January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (15)

Spotlighting the impact and import of rural realities in modern mass incarceration

This recent USA Today commentary, headlined "Ignoring rural areas won't solve America's mass incarceration problem," provides a useful reminder that all parts of the United States are part of the story of modern mass incarceration.  The piece is authored by Christian Henrichson of the Vera institute of Justice, and here are excerpts:

A little known fact imperils our nation’s collective efforts to end mass incarceration: Major cities such as New York, Chicago and Los Angeles are no longer bearing the heaviest burden.  Instead, thousands of smaller cities and towns are now grappling with the nation’s highest incarceration rates.

But the reform movement has not reacted to changing incarceration trends.  In most small cities and towns, public officials are not running on reform platforms, and investment by foundations and national advocates is thin or absent.  If attention and resources are not urgently shifted to overlooked places, progress to reduce unnecessary incarceration in big cities will be totally eroded by deepening problems in the rest of the country.  This means it will be mathematically impossible to end mass incarceration — and too many Americans will be left behind.

There is no better indicator of the geography of mass incarceration than America’s 3,283 local jails.  Unlike prisons, jails exist in nearly every county in America and are under local control.  Designed to only hold people for a short time and when absolutely necessary, jails have become massive warehouses — particularly for those too poor or sick to disentangle themselves from the justice system.

Historically, jail incarceration rates have comported with our understanding of mass incarceration as an urban challenge: They were once highest in the nation’s largest cities and the lowest in the country’s rural and suburban counties. But over the past two decades, the geography of jail incarceration quietly shifted....

Since 2008, large urban jail populations have shrunk dramatically.  But even as reformers celebrated progress, jail growth went into overdrive — particularly in smaller places with limited tax bases.  In small town America, many courts do not convene regularly, resources for public defenders are scarce, and diversion options and pretrial services that might otherwise keep people out of jail beds are few and far between....

It’s also important to note that the geographic shift wasn’t limited to jails.  Recent research indicates that small and rural counties now also funnel a disproportionate share of people into state prisons, a reality that should come as no surprise given that jails function as the “front door” of the criminal justice system.

Rural counties, in particular, have been out of sight and out of mind in much of America.  But the 2016 election refocused attention onto the particular challenges of voters whose voices are often missing from the national conversation. Their burgeoning jails are a window into the pain in smaller places: shrinking economies, deteriorating public health, negligible services and pervasive addiction....

Ending mass incarceration demands a shift in resources and attention.  We need to confront what is happening in all of our backyards and understanding each community’s local incarceration story.  Policymakers and the public have to take stock of how many of their neighbors are behind bars and why — and ask difficult questions about whether wasting so much human potential and taxpayer money makes us any safer.

January 22, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Documentary film about capital punishment, "The Penalty," starts screening in Ohio

Ohio+Tour+The+PenaltyI had heard some time ago that a documentary film was being made that included former student of mine, Allen Bohnert, who has spent the last decade defending persons on Ohio's death row as they approach execution dates. That film, called The Penalty, is complete and is now about to start a week-long Ohio series of showings.

An extended preview of the film is available at this link, and here are parts of the film's official description from its website:

Three extraordinary people embark on journeys of recovery, discovery and rebellion and find themselves centre stage in the biggest capital punishment crisis in modern memory.

The Penalty is a feature documentary film following three people with extraordinary experiences of America's modern death penalty and goes behind the scenes of capital punishment's most recent headlines....

America’s most divisive issue — capital punishment — is running into some trouble. With drug supplies for lethal injections drying up and public support at an all-time-low, the struggle to keep executing is taking its toll.

The Penalty follows three people caught in the crosshairs of capital punishment and the political landscape that could decide their fate.  Going behind the scenes of some of the biggest headlines in the history of America's death penalty, the film follows the lethal injection protocol crisis that resulted in a botched execution; the rehabilitation of a man who spent 15 years on death row for a crime he didn't commit, and the family of a young woman — brutally murdered — split by the state's pursuit of the ultimate punishment.

And here are details about this week's Ohio screenings (with links from the original):

We're very excited to announce that in 2018 we'll be taking The Penalty on tour around the US, starting with a week long tour of Ohio from the 22nd-28th of January. 

Ohio currently has over 25 executions scheduled up to 2022 with the next one scheduled for just a few weeks time on February 13th. After the last attempted execution ended in disarray, there couldn't be a better time to take this film around the state. 

We've teamed up with Ohioans to Stop Executions and The Inter-community Justice and Peace Centre to put on 9 FREE SCREENINGS around the state. Each screening will be followed by a talkback session with the film's co-director Will Francome and special guests, plus the opportunity to take action. 

For those of you in Ohio, or who have friends or family in the state, go to this link to reserve your free tickets. 

If you're not in Ohio - don't fear - there will be more screenings this year, with multiple state tours and one-off screenings. 

January 22, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Sunday, January 21, 2018

"Sentencing in Time"

The title of this post is the title of this recent publication authored by Linda Ross Meyer via the Amherst College Press. Here is how the work is described:

Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison?  How do we relate a quantitative measure of time — months and years — to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act?  Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time — chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time).

In Sentencing in Time, Meyer asks whether — in overlooking the irreconcilability of these two modes of thinking about time — we are failing to accomplish the ends we believe the criminal justice system is designed to serve.  Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful — and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.

January 21, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (8)

"Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona"

The title of this post is the title of this new paper authored by John Lott available via SSRN that a helpful reader made sure I did not miss.  For a host of reasons, John Lott is a controversial empiricist, and this latest paper could surely stir up some new controversies.  Here is its abstract:

Using newly released detailed data on all prisoners who entered the Arizona state prison from January 1985 through June 2017, we are able to separate non-U.S. citizens by whether they are illegal or legal residents. Unlike other studies, these data do not rely on self-reporting of criminal backgrounds. Undocumented immigrants are at least 142% more likely to be convicted of a crime than other Arizonans. They also tend to commit more serious crimes and serve 10.5% longer sentences, more likely to be classified as dangerous, and 45% more likely to be gang members than U.S. citizens. Yet, there are several reasons that these numbers are likely to underestimate the share of crime committed by undocumented immigrants. There are dramatic differences between in the criminal histories of convicts who are U.S. citizens and undocumented immigrants.

Young convicts are especially likely to be undocumented immigrants. While undocumented immigrants from 15 to 35 years of age make up slightly over two percent of the Arizona population, they make up about eight percent of the prison population. Even after adjusting for the fact that young people commit crime at higher rates, young undocumented immigrants commit crime at twice the rate of young U.S. citizens. These undocumented immigrants also tend to commit more serious crimes.

If undocumented immigrants committed crime nationally as they do in Arizona, in 2016 they would have been responsible for over 1,000 more murders, 5,200 rapes, 8,900 robberies, 25,300 aggravated assaults, and 26,900 burglaries.

January 21, 2018 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (6)

Friday, January 19, 2018

US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs

As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:

Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission.  The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.

The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”.  An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.

Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."

During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.

Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.

A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.

The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.

January 19, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, January 18, 2018

New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"

F1.mediumThis notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism."  Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

A few (of many) prior related posts on risk assessment tools:

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Texas completes first execution of 2018

As reported in this AP piece, headlined "'Tourniquet Killer' executed in Texas for 1992 strangling," the first execution of the year was completed in Texas this evening. Here is the story:

Texas carried out the nation's first execution of 2018 Thursday evening, giving lethal injection to a man who became known as Houston's "Tourniquet Killer" because of his signature murder technique on four female victims. Anthony Allen Shore was put to death for one of those slayings, the 1992 killing of a 21-year-old woman whose body was dumped in the drive-thru of a Houston Dairy Queen.

In his final statement, Shore, 55, was apologetic and his voice cracked with emotion. "No amount of words or apology could ever undo what I've done," Shore said while strapped to the death chamber gurney. "I wish I could undo the past, but it is what it is."

As the lethal dose of pentobarbital began, Shore said the drug burned. "Oooh-ee! I can feel that," he said before slipping into unconsciousness. He was pronounced dead 13 minutes later at 6:28 p.m. CST.

"Anthony Allen Shore's reign of terror is officially over," Andy Kahan, the city of Houston crime victims' advocate, said, speaking for the families of Shore's victims. "There's a reason we have the death penalty in the state of Texas and Anthony Shore is on the top of the list. This has been a long, arduous journey that has taken over 20 years for victims' families."

Shore's lawyers argued in appeals he suffered brain damage early in life that went undiscovered by his trial attorneys and affected Shore's decision to disregard their advice when he told his trial judge he wanted the death penalty. A federal appeals court last year turned down his appeal, the U.S. Supreme Court refused to review his case and the six-member Texas Board of Pardons and Paroles unanimously rejected a clemency petition.

In 1998, Shore received eight years' probation and became a registered sex offender for sexually assaulting two relatives. Five years later, Shore was arrested for the 1992 slaying of Maria del Carmen Estrada after a tiny particle recovered from under her fingernail was matched to his DNA. "I didn't set out to kill her," he told police in a taped interview played at his 2004 trial. "That was not my intent. But it got out of hand."...

He also confessed to killing three others, a 9-year-old and two teenagers. All four of his victims were Hispanic and at least three had been raped. Jurors also heard from three women who testified he raped them.

Harris County District Attorney Kim Ogg, who as an assistant prosecutor worked the then-unsolved Estrada case, said crime scene photos showed Estrada was tortured and had suffered as a stick was used to tighten a cord around her neck. "I know this case, I know his work and the death penalty is appropriate," she said. "A jury in this case gave Shore death. ... I think he's reached the end of the road and now it's up to government to complete the job."

Besides Estrada, Shore confessed to the slayings of Laurie Tremblay, 15, found beside a trash bin outside a Houston restaurant in 1986; Diana Rebollar, 9, abducted while walking to a neighborhood grocery store in 1994; and Dana Sanchez, 16, who disappeared in 1995 while hitchhiking to her boyfriend's home in Houston....

In 2017, 23 convicted killers were put to death in the U.S., seven of them in Texas, more than another state. Three more inmates are scheduled to die in Texas in the coming weeks.

January 18, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (6)

"Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices"

The title of this post is the title of this notable new report recently released by the Stanford Criminal Justice Center and authored by Katherine Moy, Dennis Martin, and David Alan Sklansky. Here is its executive summary:

Local prosecutor elections can have uniquely consequential results for the American criminal justice system. Paradoxically, however, these elections attract much less voter engagement than other races, and incumbents are repeatedly re-elected.  As a result, activists seeking to convince prosecutors to pursue reforms, or to elect new reform-minded prosecutors, have a hard time communicating just how well a given office is performing.

A prosecutorial rating system is one approach to remedying this information gap. Much like indices used in other public policy areas, such a rating system could be a critical way of communicating to voters and potential electoral challengers whether a prosecutors’ office has effectively pursued the electorate’s policy priorities.

This report begins to chart a path toward building such a rating system.  Drawing on the expertise of experienced public policy index developers, the report outlines a procedure that developers can follow to design and build their own scorecard.  The process described in the report involves several stages, during which developers will need to grapple with key policy and logistical issues.

Although the contours of the process are flexible, the report lays out the following steps to developing a prosecutorial rating system:

1) Gather key personnel and experts and set project benchmarks.

2) Define the index’s goals and target audience, including any intermediaries that might be enlisted to convey the index’s message.

3) Select the variables the index will use to measure performance and decide how much weight to attribute to each variable.

4) Gather data for each variable, including any proxy measurements to use where direct data is unavailable.

5) Aggregate and normalize the data in a coherent, rigorous, digestible format.

6) Disseminate and build support for the index.

Each of these stages involves complex decisions, many of which may need to be revisited throughout the development process. But walking through each of the stages methodically can help highlight areas of dispute and place in a broader procedural context.  By keeping the index’s overall goals in mind as they work through the minute details of each stage, developers are more likely to be able to create a successful index to help meet their reform objectives. 

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing

The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:

General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence."  We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process.  We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here.  We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society."  Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010).  The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision.  They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone.  We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.

We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.  We affirm.

UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week.  The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:

Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.

January 18, 2018 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

An accounting of how criminal justice has changed as the folks inside the Beltway have changed

The Marshall Project has this notable new piece headlined "Trump Justice, Year One: The Demolition Derby; Here are nine ways the law-and-order president has smashed Obama’s legacy." Here is how the piece sets up its listing (readers can click through to review the particulars):

On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist.  By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees.  His Justice Department intervened in cities where communities had lost trust in their police.

After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities — in effect, a parallel criminal justice system — on migrants considered dangerous, and created safeguards for those brought here as children.  He visited a prison, endorsed congressional reform of mandatory minimum sentences and spoke empathetically of the Black Lives Matter movement.  He nominated judges regarded as progressives.

In less than a year, President Trump demolished Obama's legacy.

In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law,” which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.

“I think all roads in Trump's rhetoric and Sessions’ rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology.  “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on -- restricting immigration of all sorts.” 

Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.

January 18, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

Wednesday, January 17, 2018

Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push

Vice News has this new piece providing a little backstory on how and why the event last week at the White House was focused only on prison reform and lacked any discussion of sentencing reform.  The piece is headlined "Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions," and here are excerpts:

For the past six months, the president’s son-in-law Jared Kushner has been working on a potentially bipartisan initiative: to reform the U.S. criminal justice system.  Kushner has been holding “listening sessions” to develop White House agenda on criminal justice reform, including policy recommendations such as providing incentives to companies for hiring former felons, investing in inmates once they leave prison, and perhaps most importantly, reforming sentencing laws, including mandatory minimum sentencing, a relic of the 1980s and 90s war on drugs and the focus of a three-year bipartisan reform effort in the Senate.

It all culminated in last week’s White House roundtable discussion on prison reform with President Trump, several Republican governors, and conservative activists. Except one thing was missing: sentencing reform.  Attorney General Jeff Sessions opposes reforming mandatory minimum sentencing and effectively blocked it from becoming part of the White House reform agenda, according to three people who attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” a source familiar with White House meetings on the issue said. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

As the prison reform debate played out, Kushner expressed support for limiting mandatory minimum sentencing, according to individuals who have discussed these issues with him, aligning him with Senate Republicans on the Judiciary Committee.  But Kushner dropped the issue from the agenda in order to get Sessions to attend the roundtable discussion last week.

At the meeting Trump suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.  There was no discussion of sentencing laws. The White House did not respond to a request for clarification about the Kushner’s nor the White House’s official position on sentencing reform.

“The president directed the Attorney General to reduce violent crime in this country and he is focusing the Department’s efforts on achieving that goal. Incarceration remains necessary to improve public safety, and the effectiveness of incarceration can be enhanced by the implementation of evidence-based reentry programs,” a spokesperson for the Department of Justice said.

“They were never going to be able to get the President to say he supports sentencing reform based on what Sessions has told him,” a source familiar with the meetings said.

A majority of Republicans and Democrats support reforming mandatory minimum sentencing, which takes sentencing leeway away from judges.  Since then the federal prison population has quadrupled; more than half of all federal inmates were sentenced using mandatory minimum laws.

Meaningful sentencing reform is considered key to any reform package that could be brought to vote in the Senate.  Republican Sen. Chuck Grassley of Iowa, Judiciary Committee Chairman, said sentencing reform is a must-have if Trump wants a bill to pass.  “Any proposal that doesn't include sentencing reform is not going to get through the committee,” a spokesman for Grassley said in an email....

In October, the Senate Judiciary Committee unveiled its latest criminal justice reform bill — the Sentencing Reform and Corrections Act — to eliminate many mandatory-minimum sentences for drug crimes.  This is not the first time Congress has tried to pass comprehensive reform.  The same bill made it out of the committee in 2015, but was never voted on due to loud opposition from a group of Republicans, including then-Senator Jeff Sessions.

I remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.

That all said, the kinds of prison reform being discussed and seemingly now endorsed by AG Sessions — some version of the corrections part of the Sentencing Reform and Corrections Act — could be a very significant type of reform that could have a positive impact for every federal offender. Sentencing reform in the form of a reduction in the length and reach of mandatory minimums would be very important in lots of ways, but these mandatories only directly impact roughly 1/4 of all new federal offenders each year and it is unclear exactly when and how any mandatory minimum sentencing reforms would be extended to the roughly 90,000 current federal drug offense prisoners. Corrections reforms that allow prisoners to earn reductions in their sentences could and likely would impact all 180,000+ current federal prisoners and all those new prisoners brought into the system every years.

Of course, we need to see the particulars of any "evidence-based reentry programs" and other prison reforms that AG Sessions can abide before being able to assess effectively who might benefit from a reform bill with only the corrections part of the reform equation.  But my main point it to highlight that the import and impact of any discussed reform always has devilish elements in the details, and a that good form of prison reform may be even better and much more consequential than a middling form of sentencing reform.

January 17, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

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

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

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

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

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

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

Key Findings

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

Tax Credits Have a Similarly Positive Effect...

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

Recommendations

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

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

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)

Tuesday, January 16, 2018

"A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by John Pfaff for the American Enterprise Institute. Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support.  Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments.  If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.

January 16, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Effective state-by-state review of recent crime rate and imprisonment rate declines

PSPP_35_states_cut_crime_and_imprisonment_infographicThe folks at The Pew Charitable Trusts' public safety performance project have this terrific new state-by-state accounting of recent crime and incarceration rates under the heading "National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms: More than two-thirds of states cut crime and imprisonment from 2008-16." The infographic alone merits a click-through, and her is the accompanying text:

After peaking in 2008, the nation’s imprisonment rate fell 11 percent over eight years, reaching its lowest level since 1997, according to an analysis of new federal statistics by The Pew Charitable Trusts. The decline from 2015-16 was 2 percent, much of which was due to a drop in the number of federal prisoners. The rate at which black adults are imprisoned fell 4 percent from 2015-16 and has declined 29 percent over the past decade. The ongoing decrease in imprisonment has occurred alongside long-term reductions in crime. Since 2008, the combined national violent and property crime rate dropped 23 percent, Pew’s analysis shows.

Also since that 2008 peak, 36 states reduced their imprisonment rates, including declines of 15 percent or more in 20 states from diverse regions of the country, such as Alaska, Mississippi, South Carolina, and Connecticut. During the same period, almost every state recorded a decrease in crime with no apparent correlation to imprisonment (see Figure 1). The latest data, released Jan. 9 by the federal Bureau of Justice Statistics, show that trends in crime and imprisonment continue to be unrelated:

• Across the 45 states with crime declines from 2008-16, imprisonment rate changes ranged from a 35 percent decrease to a 14 percent increase.

• 35 states cut crime and imprisonment rates simultaneously.

• 21 states posted double-digit declines in both rates.

• The average crime decline across the 10 states with the greatest declines in imprisonment was 19 percent, and across the 10 states with the largest imprisonment growth it was 11 percent.

The annual national violent crime rate increased in 2015 and 2016, but many cities are reporting reductions for 2017, and both violent and total crime rates remain near record lows. National, state, and local crime rates shift for complex and poorly understood reasons, and experts offer a wide range of possible explanations; overall, however, the rates of reported violent and property crime have declined by more than half since their 1991 peaks, falling to levels not seen since the late 1960s.

Starting with Texas in 2007, more than 30 states have adopted sentencing and corrections reforms designed to improve public safety and control taxpayer costs. The reforms vary from state to state, but typically they prioritize prison space for people who have committed serious offenses and invest some of the savings in effective alternatives to incarceration. Research shows that investment in evidence-based re-entry programs reduces recidivism, contributing to declines in crime and imprisonment. Several states have cut return-to-prison rates significantly, including Georgia (35 percent) and Michigan (43 percent) over the past decade.

The lack of a consistent relationship between the crime and imprisonment trends reinforces a growing body of research and expert consensus that imprisonment in many states and the nation as a whole has long since passed the point of diminishing returns. This indicates that local, state, and federal policymakers can adopt additional reforms to reduce imprisonment without jeopardizing public safety.

January 16, 2018 in National and State Crime Data, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Is "tough-on-crime" no longer a winning political strategy?

The question in the title of this post is prompted by this new Daily Beast article authored by Inimai Chettiar and Udi Ofer, which is headlined "The ‘Tough on Crime’ Wave Is Finally Cresting." Here are excerpts:

For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook.  But the “tough on crime” Attorney General may be in for a surprise.  In 2018, it turns out, demagoguery about crime no longer packs a political punch.  In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.

This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s.  Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes.  Ronald Reagan launched a “war on drugs.”  George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program.  Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year....

Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy.  Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.

Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime.  His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates.  This has chilled the artery of many politicians once eager to support reform efforts in Washington.

For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics.  But something unexpected happened on the way to the backlash.

Lawmakers in blue and red states alike pressed forward with reforms.  In 2017, 19 states passed 57 pieces of bipartisan reform legislation.  Louisiana reduced sentences. Connecticut modernized bail.  Georgia overhauled probation.  Michigan passed an 18-bill package to reduce its prison population.

And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.

Urban politics have been transformed, too.  District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia.  Justice reform proved a powerful organizing issue among the young and in communities of color.

January 16, 2018 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Monday, January 15, 2018

Some new quotes at the end of the latest MLK day

I was stuck in a car for most of this day for celebrating the life and legacy of Martin Luther King, and thus I am only now getting a chance late in the day to honor this great man.   Many years, I make sure to spend time listening to the full "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963.  I have previously flagged some quotes from that speech, but this year I figured I would look to another MLK source for inspiration.  Specifically, as I gear up to go back to teaching, I thought interesting a few lines from this MLK college essay titled "The Purpose of Education."  A mere eighteen years old, MLK shows himself to already be wise beyond his years (and enduringly timely):

Education must also train one for quick, resolute and effective thinking.  To think incisively and to think for one's self is very difficult.  We are prone to let our mental life become invaded by legions of half truths, prejudices, and propaganda.  At this point, I often wonder whether or not education is fulfilling its purpose.  A great majority of the so-called educated people do not think logically and scientifically.  Even the press, the classroom, the platform, and the pulpit in many instances do not give us objective and unbiased truths. To save man from the morass of propaganda, in my opinion, is one of the chief aims of education.  Education must enable one to sift and weigh evidence, to discern the true from the false, the real from the unreal, and the facts from the fiction.

The function of education, therefore, is to teach one to think intensively and to think critically.  But education which stops with efficiency may prove the greatest menace to society.  The most dangerous criminal may be the man gifted with reason, but with no morals....

We must remember that intelligence is not enough.  Intelligence plus character -- that is the goal of true education.  The complete education gives one not only power of concentration, but worthy objectives upon which to concentrate.

Links to some prior MLK Day posts:

January 15, 2018 | Permalink | Comments (7)

Sunday, January 14, 2018

"How to make an innocent client plead guilty"

The title of this post is the headline of this depressing and depressingly familiar tale told by public defender Jeffrey D. Stein in The Washington Post.  Here is an excerpt:

The conversation almost always begins in jail.  Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made.  Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week.  And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family.  Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit.  A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty.  Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release....

You lay out options for your client.  You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.  The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial.  But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing....

The other option, you explain to your client, is to accept the plea offer.  In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades.  It’s no wonder 95 percent of all defendants accept plea offers.  Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty.  That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday.  But your client would have to accept responsibility for a crime they may not have committed....

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate.  You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence.  My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know.  You reply: “No, your honor.”  The marshals lead your shackled client to a cage behind the courtroom.  And the judge moves on to the next case.

January 14, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Noticing the rise in LWOP as death sentencing declines in Texas

This lengthy article from the Houston Chronicle, headlined "Harris County leads Texas in life without parole sentences as death penalty recedes," provides an astute review of the sentencing impact of a decline of death sentencing.  Here are excerpts (with the closing sentences prompting some commentary):

Once known as the "capital of capital punishment," Harris County is now doling out more life without parole sentences than any other county in the state.

In the 12 years since then-Gov. Rick Perry signed the life without parole or "LWOP" bill into law, Harris County has handed down 266 of those sentences — nearly 25 percent of the state's total, according to data through mid-December obtained from the Texas Department of Criminal Justice.

"It's concerning, but this is like economics or engine performance, there's no free lunch," said Houston defense attorney Patrick McCann. "We have far fewer death cases than we used to. That's a tremendous win. But now we have a lot of LWOP sentences."

The county's reliance on the lengthiest sentence available in capital murder cases comes as the Houston area — and Texas as a whole — has shifted away from capital punishment. For the first time in more than 30 years, 2017 saw no new death sentences and no executions of Harris County killers. And although part of that downturn stems from the possibility of life without parole, some experts see possible drawbacks....

Andy Kahan, the city of Houston's victim advocate, described life without parole as a "saving grace" for victims' families. "Like it or not, there's some really evil people out there that commit some horrible atrocities that deserve to be locked up for life," he said. "In a utopian world it'd be great if we didn't have to have it but that's not reality."

While Harris County grabs the lion's share of the state's life without parole sentences, Dallas County came in right behind with 120, according to Texas Department of Criminal Justice data through Dec. 18. Tarrant County had 69 of the state's 1,067 total such sentences, while Bexar County had 47 and Hidalgo had 26....

Just over 17 percent of the state's population lives in Harris County, according to Texas Department of State Health Services population projections for 2016. That makes for an LWOP rate of 6 sentences per 100,000 residents, which is higher than in all but two counties with populations over 100,000.

In comparison to murder figures, the relatively large number of life without parole sentences looks less surprising. According to an analysis of DPS data, in 2016 Harris County accounted for 27.7 percent of the state's murders and 22.7 percent of the murders cleared.

And while Harris County accounts for a disproportionate number of total executions nationwide — more than any other county or entire state, except the rest of Texas — it has generated only a small fraction of the total life without parole sentences across the country, based on TDCJ figures and a 2017 Sentencing Project report.

"Where the corporate culture has changed is the willingness to seek death," McCann said, referring to local prosecutors. "Cases that ten years ago would have been death even with LWOP are now charged as non-death," McCann said. "But that doesn't mean that they've stopped charging the LWOP cases."

To some extent, Texas' relatively low LWOP use compared to national numbers may stem from the fact that prosecutors have only had the option for life without parole since 2005. Before that, the harshest choices were death — or the possibility of release after 40 years....

Texas became the last death penalty state to adopt the option, after Harris County prosecutors dropped their opposition. Initially it only applied to capital murder, but later the law was expanded to include crimes like repeated sexual assault of a child.

From the statute's inception, Harris County was one of its biggest users. "It's not surprising because Harris County is also the driver of the death penalty numbers and most juvenile commitments as well," Henneke said. "Across the board Harris County is the incarceration county."...

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. "Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

The last few passages highlight what has long been my enduring concern as abolitionist have pushed for LWOP sentences as an alternative to the death penalty. Though the extreme LWOP sentence may at first be only available for the worst murders, once on the books it can and often does creep to be applicable to a range of other crimes. And capital cases come with super due-process, much of which is constitutionally requires; LWOP can be imposed, as this article puts it, "quicker and cheaper." While I understand why abolitionists celebrate the use of LWOP in order to engineer a decline in capital cases, I also lament the various ways abolitionist advocacy for LWOP alternatives have contributed to modern mass incarceration and further entrenched carceral commitments and contentments.

January 13, 2018 in Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (11)

Friday, January 12, 2018

Supreme Court grants cert on a couple of (small?) sentencing cases

Via this order list, the US Supreme Court added twelve cases to its merits docket.  A couple involve sentencing issues, and here they are with an assist from SCOTUSblog:

Chavez-Meza v. United States, No. 17-5639

Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

Lagos v. United States, No. 16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

As the title of this post suggests, my first take is that these issues are pretty small in scope and significance.  But I am still always excited to see SCOTUS care about sentencing matters.

January 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"Mental Health Courts and Sentencing Disparities"

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

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

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

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

Thursday, January 11, 2018

Notable comments by Prez Trump during meeting on prison review

I spent most of Thursday on the road, and various news stations were reporting on statements by Prez Trump others than those on the topic of prison reform. But, as this official White House page reveals, Prez Trump made some comments during a meeting that ought not be overlooked. Here are excerpts:

We’ll be discussing a number of opportunities to improve our prison system to better promote public safety and to help former prisoners reenter society as productive citizens. Very important. Very big topic. It’s become a very big topic, especially, I think, over the last 12 months or so. We’ve been focused on it very strongly.

We support our law enforcement partners, and we’re working to reduce crime and put dangerous offenders behind bars. At the same time, we want to ensure that those who enter the justice system are able to contribute to their communities after they leave prison, which is one of many very difficult subjects we’re discussing, having to do with our great country.

The vast majority of incarcerated individuals will be released at some point, and often struggle to become self-sufficient once they exit the correctional system. We have a great interest in helping them turn their lives around, get a second chance, and make our community safe. Many prisoners end up returning to crime, and they end up returning to prison. Two-thirds of the 650,000 people released from prison each year are arrested again within three years.

We can help break this vicious cycle through job training — very important, job training — mentoring, and drug addiction treatment. And you know how we’re focused on drugs pouring into our country and drug addiction. It’s a big problem even as we speak of this subject. We’ll be very tough on crime, but we will provide a ladder of opportunity to the future....

My administration is committed to helping former inmates become productive, law-abiding members of society.

This Hill article about the meeting, headlined "Trump, Kushner meet with advocates on prison reform," includes quotes from advocates and lawmakers suggesting reasons for optimism and pessimism concerning possible federal legislative reforms moving forward after this notable meeting.

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (10)

Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform

As noted here yesterday, there are plans for an afternoon meeting at the White House on criminal justice issues.  But, as this new Newsweek article details, it seems that sentencing reform is not going to be part of the discussion.  The article's headline provides the essentials, "Trump and Kushner's Prison Reform Plan Not Expected to Reduce Sentences or Fix Prison Conditions," and here are the details:

President Donald Trump will hold a listening session on prison reform Thursday that will focus on improving prisoner reentry – the process of preparing inmates for release–with a conservative approach, multiple people in talks with the administration told Newsweek.

The session is only expected to include politicians and religious and nonprofit leaders from the right. It is not expected to include discussion on topics like prison conditions or sentencing reform.

In attendance will be three Republican governors who instituted criminal justice reform in their states–Governor Nathan Deal of Georgia, Governor Matt Bevin of Kentucky and Governor Sam Brownback of Kansas–along with televangelist Paula White, according to Derek Cohen, the director of Right on Crime at the Texas Public Policy Foundation, which has been in discussions about conservative reentry reform methods with the Trump administration. “All the policy issues we’ve discussed with the administration have a conservative orientation,” said Cohen, who added that prison ministries are crucial to a successful release. “Faith is going to be an integral part of any reentry plan.”

The Texas Public Policy Foundation and the Trump administration have discussed cutting government regulation to make it easier for former prisoners to get jobs, Cohen said. Getting rid of restrictions that bar ex-cons from working as barbers, for example, allow inmates to more easily get a job upon release and reduce the likelihood of recidivism, he added.

Koch Industries general counsel Mark Holden will also attend the meeting, which he said will be at 1:30 p.m. in the White House’s Roosevelt Room. “Our point of view at Koch is prisoner reentry needs to begin at day one of the sentence” and not “60 or 90 days out” from release, said Holden, who had also been involved in the prison reform talks that Trump senior adviser and son-in-law Jared Kushner began last summer. Holden added that mental health and drug treatment, along with vocational training, need to happen inside prisons so inmates are prepared for life outside when they are released.

“I’m delighted that the president has made this a priority,” said Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, which has also been in prison reform talks with the Trump administration. “I’ve been working since 1996 to help build a conservative movement in criminal justice reform, and this is a very important turning point.” Cohen and Nolan will not be at the Thursday session, but others from their organizations are attending....

Kushner’s Office of American Innovation is also working on an apprenticeship plan for released prisoners that could match inmates with employers, according to a conservative leader who has been working with the White House on the reforms, but it’s unclear whether that initiative will be announced Thursday.

Excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain the support of “old guard conservatives” like U.S. Attorney General Jeff Sessions, who will also attend the meeting, the conservative leader said. “Reading the tea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue. He added that he expects White House Chief of Staff John Kelly to attend and that Housing Secretary Ben Carson and Labor Secretary Alexander Acosta came to previous meetings on the issue.

The White House did not respond to a request for comment late Wednesday evening.

Recent related post:

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, January 10, 2018

A not-quite random collection of notable recent sentencing pieces

This week, though only half done, has been full of links to reports or commentaries or other items that seemed blogworthy but that I have not yet found time to blog about.  Particularly because I likely will be off-line much of the rest of this week, I figured I could make up for lost time with a big round-up.  So here goes, in no particular order:

January 10, 2018 in Recap posts, Recommended reading | Permalink | Comments (3)

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

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

Interesting report of plans for Prez Trump to hold a "listening session on prison reform" this week

Axios has this notable new scoop about notable White House plans including President Trump under the headline "Scoop: Jared's policy push on prison reform."  Here are the details:

President Trump tomorrow will hold a listening session on prison reform, after six months of quiet exploration of the issue by senior adviser Jared Kushner (who turns 37 today).

Why it matters: The White House sees this as a conservative issue (save money, cut crime) that could get bipartisan support (spending for workforce development), heading into a midterm election year when it'll be even harder to get congressional accomplishments than it was last year.

  • Under the auspices of Kushner's Office of American Innovation, administration officials have met with faith-based leaders, former inmates who have been rehabilitated, conservative leaders, and experts on the issue.
  • Attorney General Jeff Sessions will join Thursday's session.
  • Jared and his wife, Ivanka Trump, held a dinner discussion at their home, including Sens. Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Mike Lee (R-Utah) and Sheldon Whitehouse (D-R.I.)
  • The administration is exploring possible legislative proposals and administrative actions. An early step could include a push for public awareness involving churches.
  • The issue came up during this weekend's Camp David meeting with GOP congressional leaders.

Koch Industries general counsel Mark Holden, a longtime champion of the issue, told me he has been impressed with Kushner's passion, and that the approach the administration is exploring "has been showed to markedly reduce recidivism."

Jared Kushner's interest and "passion" for criminal justice reform is not big or new news, but the direct involvement of President Trump and Attorney General Sessions in talks about possible federal reforms does strike me as big news. It is worth watching as the rest of this week unfolds whether and how the White House or the Prez himself speaks about this planned meeting (either before or after it takes place).  I am still not prepared to assert that significant federal statutory sentencing reform is becoming likely, but this reported meeting seems like a good and important sign.

January 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, January 9, 2018

Two notable new additions to the Senate Judiciary Committee that should generally hearten sentencing reform advocates

As reported here by the Washington Post, "The Senate Judiciary Committee will welcome its first African American members in this century after Democrats added Sens. Kamala D. Harris (D-Calif.) and Cory Booker (D-N.J.) to the panel that handles judicial nominations and appointments to the Justice Department." Here is more:

“The Congressional Black Caucus could not be more proud of both of our Senate members and know the experience and expertise they bring to the Committee will be beneficial for all Americans,” said Rep. Cedric Richmond (D-La.), the CBC’s chairman, in a statement.

Harris, a former attorney general of California, was seen as a likely candidate to join the committee after Sen. Al Franken (D-Minn.) announced his resignation late last year. The appointment of Booker was more of a surprise, coming one year after Booker testified against the appointment of then-Sen. Jeff Sessions (R-Ala.) as attorney general, a rare move for one senator to make against another. Sometime after that hearing, Booker learned that he and Harris were “second and third in line” if openings came up.

“The Trump administration has repeatedly demonstrated its hostility to the ideals of civil rights and equal justice for all,” Booker said Tuesday in a statement announcing his appointment. “As a member of the Senate Judiciary Committee, I will make it my mission to check and balance President Trump and Attorney General Sessions.”

No African American senator has sat on the Judiciary Committee since the 1990s, when Carol Moseley Braun, a Democrat from Illinois, became the first black woman elected to the Senate. There had been pressure on Democrats to elevate Harris; in the end, Senate Minority Leader Chuck Schumer opted to elevate both of the Senate’s black Democrats.

Harris’s appointment was possible because Democrat Doug Jones’s victory last month in Alabama shrank the Republican advantage on two committees. (Republicans now have one-seat advantages on the Judiciary Committee (11 to 10) and Finance Committee (14 to 13); Sen. Sheldon Whitehouse (D-R.I.), who is in his second term, will join the latter committee.)

Senator Booker has been a fairly vocal advocate for sentencing reform since his election to the Senate back in 2013, and he has sponsored bills on a range of criminal justice issues. Senator Harris has worked as a state prosecutor and has expressed support for criminal justice reform in various ways since becoming a Senator just last year.  (Conveniently, Mother Jones has this interesting lengthy new profile of Senator Harris, headlined "The Secret to Understanding Kamala Harris: And why it’s making her a flash point in the Democratic Party," which highlights why some on the left do not see her as a true reform ally.)

Critically, in recent years it has been Senate leadership, not the Senate Judiciary Committee, that has been a roadblock to getting significant statutory sentencing reform enacted.  Thus, the addition of Senators Booker and Harris to the Judiciary Committee does not, in and of itself, directly impact in any dramatic way the likelihood of some form of sentencing reform getting passed in 2018.  But their knowledge and reform-minded vision could and should impact the Committee's work in various ways in the coming year that should be heartening to advocates of sentencing reform.  And their place on the Committee could become a very big deal if the Democrats were able to take back control of the Senate come November.

January 9, 2018 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

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

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

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

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

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

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

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

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

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

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

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

Making the case against juvenile sex offender registration requirements

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

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

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

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

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

Fourth Amendment day for SCOTUS oral arguments

The second day of Supreme Court oral arguments in calendar year 2018 brings forth two Fourth Amendment cases on the SCOTUS calendar.  Here are the basics and links to various previews via this SCOTUSblog posting:

Continuing its themed approach to argument days this session, the court is hearing two Fourth Amendment cases today, both involving searches of motor vehicles. The first argument is in Byrd v. United States, which asks whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental contract. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. D.E. Wagner and Leonardo Mangat preview the case for Cornell Law School’s Legal Information Institute.

 This morning’s second case is Collins v. Virginia, in which the justices will consider the scope of the automobile exception to the warrant requirement. Amy Howe previewed the case for this blog; her coverage was first published at Howe on the Court.  Robin Grieff, Jonathan Kim and Hillary Rich have Cornell’s preview, and Subscript offers a graphic explainer for the case.

January 9, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 8, 2018

"Mass Incarceration and the War on Drugs"

The title of this post is the title of this notable new paper authored by Scott Cunningham and Sam Kang that a helpful colleague sent my way.  Here is its abstract:

US incarceration rates quintupled from the early 1970s to the present, leading to the US becoming the most incarcerated OECD country in the world.  A driving cause behind this growth was a nationwide shift to more punitive criminal justice policy, particularly with respect to drug related crimes.  This movement has since been characterized as the "war on drugs."  In this manuscript, we investigate the impact of rising incarceration rates on drug use and drug markets by exploiting a natural experiment in the Texas penitentiary system. In 1993, Texas made massive investments into its prison infrastructure which led to an over doubling of the state's prison capacity.  The effect was that Texas's incarceration rates more than doubled, due in large part to declining paroles. 

We use this event to study the effect that mass incarceration had on drug markets. We find no effect on drug arrests, drug prices or drug purity.  We also find no effect on self-referred cocaine or heroin treatment admissions.  However, we do find large negative effects on criminal justice referrals into treatment for cocaine and heroin, suggesting that mass incarceration reduces drug use in the population.  Furthermore, our results indicate that this decline is driven by incapacitation effects as opposed to deterrence effects.

January 8, 2018 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

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

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

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

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

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

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

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

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

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

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

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

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

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

SCOTUS back to work with remarkable split habeas ruling giving capital defendant another (long-shot?) chance to obtain relief

At the end of this long Supreme Court order list, comprised primarily of a long list of cases in which certiorari has been denied, comes a fascinating little per curiam opinion in Tharpe v. Seller, No. 17–6075 (S. Ct. jan 8, 2018) (available here).  The ruling is a rare summary SCOTUS win for a capital habeas defendant, and the short majority opinion provides only a small glimpse into the case (though a clear view of what motivated a majority of Justices to want to intervene).  Here are excerpts from the opinion (with cites removed):

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him....

Our review of the record compels a different conclusion.  The state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race.  And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.  Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”  Gattie’s remarkable affidavit — which he never retracted — presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.  At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.  The Eleventh Circuit erred when it concluded otherwise.

Justice Thomas, joined by Justices Alito and Gorsuch, authored a lengthy dissent to the majority's short ruling. It starts and ends this way:

If bad facts make bad law, then “unusual facts” inspire unusual decisions.  Ante, at 3.  In its brief per curiam opinion, the Court misreads a lower court’s opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a “high bar” on remand to obtain even a certificate of appealability (COA).  Ante, at 2.

One might wonder why the Court engages in this pointless exercise.  The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks.  The opinions in the affidavit are certainly odious.  But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law.  The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments.  In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice.  It is not.  Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit.  It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent....

Today’s decision can be explained only by the “unusual fac[t]” of Gattie’s first affidavit.  Ibid.  The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it.  But the Court’s decision is no profile in moral courage.  By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors.  And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.

This is quite the way to start Supreme Court activity in 2018, a year that seems certain to have at least the usual share of SCOTUS fireworks. (I am also inspired by Justice Thomas's closing thought to imagine a new tagline for this blog: "Engaged in ceremonial handwringing since 2004.")

January 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Sunday, January 7, 2018

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

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)