Sunday, June 05, 2016

Might SCOTUS soon (finally!) take up the constitutionality of solitary confinement?

Way back in March 2009, I asked via this post "Why isn't there more constitutional litigation over the 'hellhole' that is extended solitary confinement?".  And last year, as noted this post, Justice Anthony Kennedy essentially asked the same question via a remarkable (off-point) concurrence in the SCOTUS ruling in Davis v. Ayala.  Consequently, I was intrigued to see this new Mother Jones article headlined "The Supreme Court Might Finally Take On Solitary Confinement: The court could announce Monday whether it will consider the long-term solitary confinement of a death row inmate." Here is how the piece gets started:

Bobby Moore has been on death row in Texas for more than 35 years, for a murder he committed in 1980 at the age of 20.  He's come close to dying twice; once, he was hours away from execution before a court intervened.  For the past 15 years, he's been in solitary confinement nearly 23 hours a day, unable to interact with other inmates, in a type of cell described in legal filings as "virtual incubators of psychoses."

The Supreme Court is now considering Moore's claim that his solitary incarceration and the long delay between his conviction and execution are violations of the Eighth Amendment's ban on cruel and unusual punishment.  Moore's petition has been pending for nearly a month, but a decision on whether the Supreme Court will hear it could come on Monday.  If the court takes up the case, its ruling could have profound implications for the nation's nearly 3,000 death row inmates, who are often confined to solitary cells and await execution for an average of more than 15 years.  If Moore wins, not only could he get off death row, but many inmates in his position could follow.

The high court has repeatedly refused to hear cases challenging an excessive delay of an execution as unconstitutional, and it's never directly confronted solitary confinement on death row.  But there are signs that the justices are seriously considering Moore's case.  The court grants only about 70 petitions a year, out of 9,000 filings, so most cases are dismissed quickly.  But it has relisted Moore's case for its weekly review conference three times, an unusual move.

Some of the court's liberal justices have spoken out about long solitary stays on death row for a long time.  Justice John Paul Stevens, who retired in 2010, was a notable advocate for the position that extended incarceration for capital offenders was a clear constitutional violation, one he first embraced more than 20 years ago.  Stevens gained an ally in Justice Stephen Breyer, who wrote in 1999, "It is difficult to deny the suffering inherent in a prolonged wait for execution."  Breyer cited these long waits in a lengthy dissent last year, in which he declared his view that capital punishment in any form is unconstitutional — a dissent joined by Justice Ruth Bader Ginsburg.  Last month, he objected to the court's refusal to take up a California death row case raising the issue, arguing that "unconscionably long delays...undermine the death penalty’s penological purpose."

The conservative justices, though, have been less sympathetic — that is, until 2014, when almost out of the blue, Anthony Kennedy, a Ronald Reagan appointee and the court's frequent swing vote, expressed concern about solitary confinement during oral arguments in a case.  He has since shown more signs that he could eventually be a decisive vote in forcing the court to confront the issue at last.

For various reasons, I would like to see the Supreme Court take up the constitutionality of extended solitary confinement in a non-capital case. But, obviously, that has not happened yet so I suppose my perspective now is that taking up the issue in a capital case is good enough for SCOTUS work.

Some of many prior related posts:

June 5, 2016 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, June 04, 2016

"The Real Felony: Denying Prisoners the Right to Vote"

The title of this post is the headline of this new Daily Beast commentary by Barrett Holmes Pitner. It starts and ends this way:

Recently, Hillary Clinton dramatically put voting rights back on the national agenda with an audacious call to register every American citizen when he or she turns 18. Voter ID laws are not new issues in our politics, but Clinton’s full-throated appeal felt serious and sincere: Perhaps we will finally tackle the perverse voter disenfranchisement of minorities and the poor that still persists throughout this country.

But I’ll go her one better. If Hillary is serious about social justice and equality, I hope she does not overlook one nearly voiceless population that needs to be included in this debate: ex-convicts returning home from prison, and, yes, even incarcerated prisoners....

It is becoming more apparent that voting is a responsibility that needs to be fostered, and many people develop the voting habit from observing previous generations. Voting builds stronger communities of people who are more likely to participate in the democratic process. Similarly, inmates who are able to vote will feel more connected and invested in their communities, and can set a positive example to the outside world while they are behind bars.

It may be easy to discredit how informed inmates may be, but data are emerging showing that “informed” voters by and large vote along party lines and are not as well versed on the issues as we would like to believe. And we need not forget that prisoners have plenty of spare time, and are one of the few demographics that could leisurely read two newspapers a day and still find time to watch the evening news.

The argument for keeping the incarcerated and the newly released off the voting rolls is based on an archaic punitive disciplinary structure that we need to move beyond. Maintaining an electoral process that actively works to disenfranchise nearly 3 percent of eligible voters is a structure that no democratic nation should support.

June 4, 2016 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Friday, June 03, 2016

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings.  And here we have another example:  this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana.  Here are excerpts: 

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump.  As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts.  If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Prior related posts about Gingrich's criminal justice reform advocacy:

June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 02, 2016

"Rich Defendants’ Request to Judges: Lock Me Up in a Gilded Cage"

The title of this post is the headline of this lengthy front-page New York Times article.  Here are excerpts:

Last October, Ng Lap Seng, a Chinese billionaire indicted on charges that he bribed the former president of the United Nations General Assembly, was granted bond of $50 million, secured by $20 million cash and a Midtown apartment where he would be confined and subjected to GPS monitoring and round­the­clock guards at his own expense.

Many thousands of people arrested in New York languish in the city’s jails because they are unable to make even modest bail. So advocates for prisoners and lawyers for indigent defendants say the idea that some defendants are able to stay out of jail because they have the means to finance a novel confinement plan is blatantly unfair.

“It just reinforces for me the point that our entire system of pretrial detention is predominantly based on wealth,” said Inimai M. Chettiar, a lawyer at the Brennan Center for Justice who runs an initiative to end mass incarceration. Joshua Norkin, a lawyer at the Legal Aid Society of New York, said the elaborate bail package that was being proposed for Mr. Zarrab and that was granted to Mr. Ng should remind judges in the state court system that they have the tools to release low-­income people “on alternative and more creative forms of bail, and they’re failing to do it.”

The cases of wealthy defendants’ receiving special bail conditions are not limited to international defendants. In 2009, Marc S. Dreier, a Manhattan lawyer who pleaded guilty to running an elaborate scheme that defrauded hedge funds and other investors of $700 million, was granted a $10 million bond pending trial and remained in his East Side apartment, secured by electronic monitoring and armed security guards, which his family paid for.

June 2, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, June 01, 2016

"Correctional Control: Incarceration and supervision by state"

The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):

Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.

For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation.  We make the data accessible in one nationwide chart and 100 state-specific pie charts.

Incarceration rates do not always tell the complete story of the criminal justice system in each state.  Notably, some of the states that are the least likely to send people to prison, such as Rhode Island and Minnesota, are among the most punitive when other methods of correctional control are taken into account.  Other states that rank in the bottom half of incarceration rates nationwide, such as Ohio and Idaho, end up surpassing Louisiana — the state notorious for being the global leader in incarceration — in rates of correctional control.  Georgia is punitive from any angle, as the only state that is both a top jailer and leader in probation.

We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.

Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.

Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population.  We find that for every 100 people incarcerated in a state prison in that state:

  • Maine has 1 person on parole.
  • Florida has 4 people on parole.
  • Arkansas has 117 people on parole.
  • Pennsylvania has 198 people on parole.

June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, May 29, 2016

"Anti-Incarcerative Remedies for Illegal Conditions of Confinement"

The title of this post is the headline of this notable new article by Margo Schlanger now available via SSRN. Here is the abstract:

Our bloated prisoner population includes many people who are especially likely to face grievous harm in jail and prison--prisoners with mental illness, serious intellectual disabilities, chronic illnesses, and physical disabilities; gay, lesbian, and transgender prisoners; juveniles in adult facilities and others.  In this symposium essay, I argue that when such difficulties are manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison. What’s novel about this proposal is not the diversionary remedies themselves, but the connection of such programs to conditions of confinement litigation.  Only rarely have such initiatives — which I label “anti-incarcerative” — been imposed or negotiated as court-enforceable solutions for jail or prisons conditions problems. And when they have, it’s mostly been to facilitate compliance with a court-ordered population cap.  What I’m urging is a new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm’s way by promoting workable alternatives to incarceration.

In Part I, I describe the history of population caps in conditions of confinement lawsuits. These kinds of direct population limits — still available and valuable, in the right case — constituted a first generation of decarcerative conditions orders.  They are important both historically and because they demonstrate that ordinary remedial law allows court orders that keep prisoners out of prison in order to avoid constitutional problems inside.  I next highlight in Part II a few pioneering court orders that have specified anti-incarcerative remedies, hooked to alleged or proven unconstitutional conditions caused by crowding. Like the population caps, these orders have aimed explicitly at population reduction.  I move in Parts III and IV to two models for anti-incarcerative orders that are not premised on crowding.  In Part III, I examine recent remedies addressing unconstitutional solitary confinement. Many of these recent orders have not simply barred prisons from imposing the solitary conditions plaintiffs allege are unconstitutional. Rather, they establish and regulate alternatives to solitary confinement. A final useful model, which I examine in Part IV, can be found in ongoing deinstitutionalization remedies in cases, on the model of Olmstead v. L.C, that enforce the Americans with Disabilities Act, which have focused more on provision of services in the community than on institutional exclusions.  The orders in both Parts III and IV support my contention that the ordinary law of remedies allows entry of orders keeping prisoners out of a situation in which they would face unconstitutional harm.  Finally, in Part V, I explain why the Prison Litigation Reform Act’s constraints on “prisoner release orders” should not obstruct a new generation of anti-incarcerative orders.

Our national infatuation with incarceration has led to the damaging imprisonment of many vulnerable people in jails and prisons ill-equipped to house them safely — people with mental and physical disabilities, juveniles, the elderly, minor offenders, and others.  When a particular facility or system is unable to provide these prisoners with lawful conditions of confinement, plaintiffs should seek, and federal courts should grant, anti-incarcerative orders that facilitate alternatives.

May 29, 2016 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, May 25, 2016

DOJ Inspector General report details (impressively?) rare cases of untimely release of federal prisoners

This New York Times article about a new DOJ report carries a headline that at first led me to wonder what is heck is going on with the federal Bureau of Prisons: "Thousands Held in Federal Prisons for Too Long, Report Finds."  But then, upon reading quickly the executive summary of the DOJ Inspector General's report reference in the headline, I am actually impressed with how well BOP seems to be doing a key part of its job. This full DOJ Report is titled "Review of the Federal Bureau of Prisons’ Untimely Releases of Inmates," and here is its first two paragraphs:

Following news reports that the Federal Bureau of Prisons (BOP) had confined an inmate for 13 months past his correct release date, the Department of Justice (Department) Office of the Inspector General (OIG) initiated an examination of the BOP’s process for ensuring federal inmates are released on their correct release dates and the incidences of releases before or after the correct release date due to staff error between 2009 and 2014.  We found that of the 461,966 inmate releases between 2009 and 2014, the BOP categorized 157 as untimely due to staff error.  We also learned that the BOP classifies a far greater number — 4,183 — as untimely for other reasons.

According to the BOP, the vast majority of non-staff error “untimely” releases were due to situations that are beyond its control, such as amended sentences that result in shorter sentences than the time an inmate had already served. Also, data and information we reviewed indicates that other entities inside and outside the Department may sometimes contribute to untimely releases.  Although BOP officials told us that it was highly unlikely that staff error on the part of a Department entity contributed to any of the 4,183 cases, they could not rule out the possibility and we found that the BOP does not always have complete information about the circumstances of untimely releases to which other entities contribute.  We therefore concluded that the Department should work with all relevant entities, both within and outside the Department, to review the full range of possible reasons for untimely releases and how to address those that are in any way preventable.

While I know lots of folks have lots of sound reasons to criticize BOP, I have a very hard time knocking the agency too much for staff efforts which impacted only roughly 1 out of every 3000 releases.  Of course, as the DOJ report explains, every reasonable effort should be made to avoid BOP staff errors leading to untimely releases.  But I think we should general celevrate any government agency with a 99.93% accuracy rate in one of its core responsibilities.

May 25, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, May 20, 2016

Fascinanting press report about fascinating prisoners and public health report suppressed in 2006

This new USA Today article, headlined "Quashed report warned of prison health crisis," reports on a significant public health report that was suppressed by the Bush Administration a decade ago. Here are the interesting details:

A government report, blocked from publication a decade ago, presciently warned of an advancing, double-barreled health crisis of mental illness and substance abuse that has currently swamped the nation’s vast prison systems.

The 2006 document, prepared by then-Surgeon General Richard Carmona, urged government and community leaders to formulate a treatment strategy for thousands of sick and addicted inmates that also would assist them after release or risk worsening public health care burdens. “This (report) has demonstrated that, far from being geographically and metaphorically separated from the community as was the case with Alcatraz Island, correctional facilities and those who pass through them are an integral part of the larger community," Carmona wrote in the document titled, “The Surgeon General’s Call to Action on Corrections and Community Health."

The 49-page report, Carmona said, was quashed at the time by George W. Bush administration officials who feared that such an acknowledgement would require a financial commitment that the administration was not willing to make.

Both Carmona and Roberto Potter, who served as an editor of the document while then-detailed to the surgeon general's staff from the Centers for Disease Control and Prevention, said the decision to quash the report was relayed to them through Department of Health and Human Services officials they did not identify. "It was what they call a top-drawer veto," said Potter, now a criminal justice professor at the University of Central Florida. "We missed one of those teaching moments. When something like this goes out under the surgeon general's seal, it really carries a lot of weight."...

More than a decade after the prison report was completed, local, state and federal officials are struggling to address the same health emergency — now in full bloom — that was outlined in the pages of the surgeon general's warning. "We deny the American public essential information that they need when this information is suppressed," Carmona said. "We missed an opportunity to take appropriate action to protect the public health."

In addition to mental illness and substance abuse, the report also highlighted concerns about the prevalence of infectious and chronic diseases, urging government officials to invest in a strategy that "could build on the positive outcomes of correctional health care in ways that would benefit the larger community" when inmates are released back into society. While substance abuse was identified as "the most prevalent ailment" among inmates, the report found that mental illness was up to three times higher within U.S. jails and prisons that in the general public. "The nation's largest mental health facilities are in large urban jails," the report stated.

May 20, 2016 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

Thursday, May 19, 2016

Notable new BJS report on "Aging of the State Prison Population, 1993–2013"

As detailed in this official press release, the Bureau of Justice Statistics has just released this interesting new report with lots of data about the sentencing and incarceration of older offenders. Here are the statistical basics from the press release:

Prisoners age 55 or older sentenced to more than one year in state prison increased from 26,300 in 1993 to 131,500 in 2013, the Bureau of Justice Statistics (BJS) announced today.  This represented a growth from 3 percent to 10 percent of the total state prison population during this period.  From 1993 to 2013, the median age of state prisoners increased from 30 to 36 years.

Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased.  Both the admission rate and year-end imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.

The imprisonment rate for prisoners age 55 or older sentenced to more than one year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013.  Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60 percent turned age 55 while serving time in prison.  Additionally, 40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993.

Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013.  People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013.

In 2013, two-thirds (66 percent) of state prisoners age 55 or older were serving time for a violent offense, compared to a maximum of 58 percent of other age groups.  In 2013, nearly half (48 percent) of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 and more than a quarter (27 percent) of those ages 35 to 44. In 2013, 30 percent of state prisoners age 55 or older were imprisoned for sexual assault, which was more than double the percentage of prisoners age 44 or younger.

The mean sentence length for prisoners age 55 or older admitted on new court commitments was consistently higher than other age groups.  Their mean sentence length was 82 months in 2013.  In comparison, prisoners ages 18 to 39 had a mean sentence length of 69 months, and the mean sentence length for new inmates ages 40 to 54 was 71 months.

Prisoners age 55 or older convicted of new violent crimes received longer sentences and were expected to serve a higher proportion of their sentences than younger offenders.  Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost 5 years) for those ages 18 to 39.

May 19, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"Criminal Justice: The Real Reasons for Reform"

The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough."  And here is how the piece starts and ends:

For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right.  But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....

The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns.  At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention.  Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops.  This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.

The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime.  Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.

Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.

Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:

"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson

"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson

May 19, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Saturday, May 14, 2016

"Inside a prison where inmates can actually vote for president"

160504-voting-in-prison1The title of this post is the headline of this lengthy Fusion article discussing voting realities in Vermont. Here is how the interesting piece starts and ends:

On February 16, 2000, Scott Favreau, then 17, committed a crime that shattered a family and shocked the state of Vermont.  In the early hours of the morning, he walked up to his foster mother, who was up grading high school English papers at the kitchen table, and shot her in the head with a .22 caliber rifle, immediately killing her. After leading police on a high-speed car chase, Favreau and his accomplice, the foster mother’s stepdaughter who was later found to be implicated in the crime, were arrested.

For the small community around West Burke, Favreau’s murder of his guardian, Victoria Campbell-Beer, represented a rare act of violence that robbed it of one of its beloved schoolteachers.  For Favreau, the crime marked the deplorable end to a tumultuous childhood largely defined by neglect and abuse, both physical and sexual, allegedly at the hands of his biological father.

Upon settling into his new day-to-day life as a prisoner, he came to believe that, for all practical purposes, his life had ended. During these first years of incarceration, Favreau says, his identity became defined by his status as a non-entity in society.  “It teaches you to be just an inmate,” he said of prison.  “There’s not a lot of responsibility in here. You can sleep all day.  You can do nothing at all. And that’s what a lot of us do.” Favreau says after his first years in prison he even began to see the guards — “the closest thing we have to society” — as strange, unrelatable visitors from the outside world.

During the first years of his term, Favreau began to mend ties to his biological mother, talking to her over the phone with some frequency. More often than not, their conversations would wind back to her financial struggles and desperate search for a well-paying job.  Incarcerated with no way to help, Favreau says that these conversations often underscored his sense of powerlessness behind prison walls.

Ahead the 2006 election, partially propelled by the economic woes of his family, Favreau did something he describes as pivotal: He registered to vote, a rare privilege available to United States prison inmates in only Vermont and Maine.

Favreau says that participating in the electoral process brought a new feeling of agency in and connection to society at large. This, he said, helped to change his life.  “It was one thing I could do that I can have control of, the one thing that could let me feel that I can make a difference in something.”  After registering, he gradually began to follow developments in the news, informally debating other inmates about current events. He even began talking politics with prison guards, who eventually became a lot less otherworldly. “It helped me accept them because it gave me something in common with them,” Favreau said. “You can bond through a shared experience.”

Maine and Vermont — the nation’s first- and second-whitest states, respectively — provide America’s only opportunity to see what happens when prison inmates vote.  In Favreau’s telling, however, the largest significance of voting as an inmate might go beyond his relationships with prison guards, his conversations with other inmates, or even any effect his vote might have on an election outcome. Favreau believes it has improved his chances of reintegrating with society upon his release, which he expects will come in roughly two years. “I grew up in prison and voting helped me learn responsibility,” Favreau said. “It taught me how to be a part of the community, and how to prepare me for it.”...

Having made an ill-fated attempt to rebuild his life in society in Vermont’s closely supervised probation program, Favreau has personal experience with the difficulties of reintegration.  After his release in 2013, Favreau found a job in a warehouse in Brattleboro, and soon met and moved in with a girlfriend and her young son.  Yet, Favreau was struggling with a large debt he had incurred largely during his first few months of freedom and, to ease his anxiety, he had begun to smoke pot, a fact he knew would become known by his probation officer because of required urine tests.

“One night I was at work and I felt like my life was a failure because I was thousands of dollars in debt,” Favreau said. “I figured I would be better off back in jail.”  That night, Favreau violated his probation by crossing into Massachusetts, where he quickly called his girlfriend and told he what he’d done.  By the end of the following day, Favreau was back in custody.

Favreau, who began making art in prison, said he has been using his failed year of freedom to work on strategies for his second try at reintegration, which he anticipates will come in approximately two years.  In the meantime, he says he will continue to vote whenever an opportunity arises.  “It’s my lifelong goal to make amends for what I did and to give back to community and to the people I hurt,” Favreau said. Being able to vote has “taught me about my responsibility,” he added. “I can get out and make a difference one day.”

May 14, 2016 in Collateral consequences, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Friday, May 13, 2016

"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"

9780674737235The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:

The statistics are stunning.  This very second, more than 2.2 million people sit behind bars in America.  To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars.  An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults.  The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.

Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel.  Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration.  Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”

This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America.  Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole.  The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities.  Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.

University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics.  Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans.  She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).

Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago.  A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States."  The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas.  What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....

From the War on Poverty to the War on Crime is smart, engaging, and well-argued.  Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good.  It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”.  But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”

The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services.  To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.

May 13, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

"Maximum security Nordic 'open prisons' look more like college dorms than penitentiaries"

Rtr2pcsdThe title of this post is the headline of this Tech Insider piece (which includes lots of interesting pictures). Here are excerpts:

In countries like Finland, Sweden, and Norway, maximum-security prisons look more like college dorms than stone-cold penitentiaries. In these facilities, which are known as "open prisons," inmates aren't kept in tiny cells with near-zero daylight.

They're given full access to roam around the prison's grounds, the ability to watch TV, and the trust not to abuse those privileges.  In essence, criminals are treated more like people than as forces of evil.

"We are parents, that's what we are," Kirsti Njeminen, then-governor of Finland's Kerava prison, told the New York Times in 2003.  More than a decade later, the philosophy has stayed the same.  As a result, the places that house Northern Europe's most violent offenders might as well be showrooms at Ikea. If the policies seem more like "decarceration," that's by design.

Finland in the mid-20th century looked a lot like the US does today. Imprisonment rates were high, and the policy didn't seem to be doing much good to rehabilitate anyone.  But then a group of researchers discovered the unlikely solution: Relax the policies. "The lesson from Finland was that it was perfectly possible to drop the use of imprisonment [by two-thirds,]" Tapio Lappi-Seppälä, head of the Institute of Criminology at the University of Helsinki, tells PRI, "and that did not disturb the crime trend development in Finland."  The lesson soon spread through Northern Europe: If you treat even the worst offenders as people, giving them a chance to integrate back into society, they'll often turn around....

In Kerava prison, inmates tend their own gardens. Visitors can even stroll through the garden and buy the plants directly from the prison. And at the Suomenlinna open prison, inmates live in communal housing.  The only partition from the outside world is white picket fencing.  There is no barbed wire in sight.

Scholars debate endlessly whether a country as big and diverse as the US could implement such a system.  Nordic countries have only a few million people, mostly of homogeneous ethnicities, so opponents of the Nordic model tend to argue the results can't be replicated in an immigrant-rich country of more than 300 million.

Those who are more hopeful say there is nothing particular in the DNA of Finns, Norwegians, and Swedes that makes them more peaceful.  Instead, they may be products of their environment just as much as those who go on to re-offend in the US.  The only difference may be the degree to which people are given the opportunity to change.

May 13, 2016 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Wednesday, May 11, 2016

"Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. Here are some excerpts from the start of the report:

In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S.  Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent.  One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off.  With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court.

While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years.  Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond.  This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.

We find that most people who are unable to meet bail fall within the poorest third of society.  Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages.  People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts....

Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity.  Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails.  Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.

May 11, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Tuesday, May 10, 2016

New study suggests California's prison population reduction via realignment has been generally successful

This new entry at The Crime Report, headlined "California's Prison Downsizing Offers a Model for Other States, Study Says," reports on notable new research suggesting that crime has not increased dramatically after California was force in the wake of the Plata ruling to reduce its prison population.  Here is the start of the entry describing the research:

The success of California's Public Safety Realignment Act in reducing state prison populations without a corresponding increase in crime suggests that other jurisdictions around the country can enact similar reforms without endangering public safety, according to a study published in the latest issue of Criminology & Public Policy, an American Society of Criminology journal.

The study, entitled “Is Downsizing Prisons Dangerous? The Effect of California’s Realignment Act on Public Safety” [available here], cites already published data showing that the 17 percent reduction in the size of California’s prison population over a 15-month period, beginning with the Act's implementation in 2011, did not have an effect on aggregate rates of violent crime or property crime.

"Moreover, 3 years after the passage of Realignment, California crime rates remain at levels comparable to what we would predict if the prison population had remained at 2010 levels," write authors Jody Sundt of Indiana University, Emily J. Salisbury of University of Nevada, Las Vegas, and Mark G. Harmon of Portland State University.

The California results demonstrate that "we make a mistake...when we assume that prisons are the only meaningful or viable response to crime,” the authors add.

According to the data referenced in the study, the California Realignment Act reduced the size of the state’s prison population by 27, 527 inmates within 15 months. Many of the inmates were transferred to local jails or released into the community. Critics of the Act linked the policy to recorded increases in offenses such as auto theft. But the authors argued that the slight uptick in such offenses leveled off over time--and was not necessarily linked to realignment.

These results should serve as an object lesson for other jurisdictions, said the authors. "For the first time in decades it appears that a 'window of opportunity' for justice reform is opening to allow for a reevaluation of the effectiveness and wisdom of policies that have created the largest prison population in the world," they wrote, citing a phrase used by criminologist Michael Tonry.

May 10, 2016 in Data on sentencing, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7)

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

The title of this post is the title of this notable new paper authored by Ken Strutin now available via SSRN. Here is the abstract:

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.

Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood.  Part II addresses the reality of petition or perish created by Bounds and Casey.  Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated.  Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

May 10, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Saturday, May 07, 2016

Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing

My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:

Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.

This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”

The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...

Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.

But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.

Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.

The (reader-friendly) report that provides the data for this new story can be accessed at this link.

May 7, 2016 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, May 05, 2016

"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"

DownloadThe title of this post is the headline of this notable National Review commentary authored by prominent conservatives Adam Brandon, Timothy Head, Marc Levin and Grover Norquist. Here are excerpts:

Nearly ten years ago, in 2007, Texas faced $527 million in immediate prison-construction costs, and $2 billion in additional costs by 2012. Even for a large and wealthy state, the sticker shock was staggering. Texas had seen its prison population rise dramatically.  Between 1990 and 2010, the number of inmates jumped from around 50,000 to more than 155,000 — incarcerating so many inmates began to crowd out other vital areas of the budget.

Texas House Corrections Committee chairman Jerry Madden approached House speaker Tom Craddick and asked what he should do to address the rising costs. “Don’t build new prisons,” Craddick said. “They cost too much.” Madden, a Republican, got to work and, along with his colleagues from both sides of the aisle, devised a plan to tackle the state’s growing prison population.  With an investment of $241 million, lawmakers created drug courts to divert low-level, nonviolent offenders into treatment programs as an alternative to incarceration and funded rehabilitation programs to reduce prisoners’ risk of recidivism when they reentered society.

The results of the Texas model are difficult to ignore: The state’s prison population declined by 14 percent and, even more importantly, crime rates dropped by 29 percent.  One might argue that crime rates were dropping all over the country at the time — which is true — but if one were to listen to those in rabid opposition to justice reform, wouldn’t the reverse have happened?  Instead, Texas now has its lowest crime rate since 1968 and recidivism is 9 percent less than before Texas’s 2007 reforms.

The results were so encouraging that other states sought to replicate Texas’s success.  Most of the states that have moved on substantive justice reform are traditionally conservative ones.  More than two dozen states — including Georgia, Mississippi, and South Carolina — have passed justice-reform packages.

Interestingly, it wasn’t until multiple Republican-controlled states moved on the issue that traditionally blue states felt that they could: They all waited for red states to move first. Hawaii, Oregon, and Rhode Island, three of the most progressive states in the country, followed the lead of conservative states. Since then, even more red states — including Alabama, Oklahoma, and Utah — have passed justice reform.  Red states, and Texas in particular, provided a blueprint for other states to follow while Barack Obama was still the junior senator from Illinois....

Now is the time to bring these conservative reforms to the federal level. The federal prison population grew by nearly 800 percent between 1980 and 2013, and the Bureau of Prisons’ budget increased by almost 600 percent, from $970 million to $6.7 billion.  Opponents of justice reform point to the high recidivism rate of federal prisoners as one of the reasons Congress shouldn’t act, but this is exactly why we, like so many conservative states, should act to get smarter on crime.

Moreover, there is also another angle that congressional Republicans may not have considered: There are no guarantees this fall.  Conservatives could be facing four or eight more years of a Democrat in the White House, Democratic control of the Senate, and, quite possibly, the House could swing back to left-wing control. While there is more bipartisanship on criminal justice than any other issue, conservatives understand we cannot reduce the prison population without also strengthening alternatives like probation and drug courts. So, for example, there should be swift and certain sanctions — such as a weekend in jail — when someone blows off their probation officer.  Some on the far left simply don’t recognize the “stick” part of the carrot-and-stick approach and want to divert savings on prisons to welfare programs rather than following Texas’s proven record by reinvesting the savings in supervision strategies that can help continue crime declines.

It’s time for congressional conservatives to reclaim the narrative that’s rightfully theirs. Justice reform is our issue. They would never admit it, but Democrats are following conservatives’ lead.

May 5, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, May 02, 2016

Would prosecutors be less aggressive if significantly more monies were devoted to indigent criminal defense?

The question in the title of this post is the big question that lingers for me after review of this important New York Times op-ed authored by John Pfaff over the weekend.  The piece provides data to back up John's frequent Twitter lament that problems with indigent defense funding do not get enough attention nor play a sufficient role in analyses of problems with modern criminal justice systems.  The commentary, headlined "A Mockery of Justice for the Poor," merits a full read and here are a few key excertps:

In the landmark case Gideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own.  This was no minor decision.  Approximately 80 percent of all state criminal defendants in the United States qualify for a government­provided lawyer.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.  Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor.  In Fresno, Calif., for instance, public defenders have caseloads that are four times the recommended maximum of around 150. In Minnesota, one public defender followed by a reporter estimated that he had about 12 minutes to devote to each client that day.  There is no way these lawyers can manage the cases being thrown at them.

In New Orleans, caseloads are so high that the parish’s public defender office has started to refuse to take cases, including murder cases.  Public defender offices in other states, including Florida, Missouri, New York and Pennsylvania, have taken similar steps when caseloads have grown too heavy.  To make things worse, 43 states now require indigent defendants to pay at least a portion of their lawyers’ fees, even though these defendants are by definition indisputably poor....

There is, however, a way out of this, one that the presidential candidates of both parties should embrace, one that should have broad bipartisan appeal. And it is an approach that no one is talking about.

The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense.  This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget.  This money would triple spending on indigent defense, especially if the grant was tied to pre­existing spending by local governments so they couldn’t just cut their own spending one­-for-­one with the grant.

For Democrats, this plan would target a major cost of poverty and inequality and, because of the correlation between wealth and race, it would tackle at least some of the racial imbalances that permeate the criminal justice system.  For Republicans, who worry about state overreach and the government’s ability to oppress its citizens, meaningful public defense ensures that the poor, too, are able to check the state when it is acting in its most powerful capacity.

Funding indigent defense would also help scale back mass incarceration, a goal both parties share.  My research has shown that the primary source of prison growth in the 1990s and 2000s has been prosecutors’ filing of felony charges against more and more arrestees, many of whom in the past would have faced misdemeanor charges or no charges at all. Ensuring that prosecutors’ opponents are able to do their jobs competently would dampen prosecutorial aggressiveness.

Tellingly, as public defender caseloads have soared amid shrinking budgets, prosecutor caseloads appear to have held relatively steady, as funding and hiring of prosecutors generally rose over roughly the last 20 years.  Public defenders find themselves at an increasing disadvantage, surely contributing to our nation’s inability to really rein in prison population growth.  If defendants had well-­funded, effective representation, our adversarial system would do what it is intended to do.  What we have right now, however, simply is not adversarial: relatively well-­funded, well-­staffed prosecutor offices square off against public defenders whose caseloads defy imagination.

Funding public defense would ensure that poor people’s constitutional rights are protected, would advance a commitment to justice shared by liberals and conservatives alike, and would help roll back our staggering prison population.  It is also feasible, cheap by federal standards, and would have powerful, long­lasting effects.

I agree 100% with John's call for much greater funding of public defense — although I would much prefer a federal law that urged states to link criminal defense funding/spending to criminal prosecution funding/spending. I am not keen to have federal taxpayers provide an expensive "justice bailout" for all states disinclined to tax their own citizens to pay for constitutionally-required services for those they seek to (over)prosecute. (Indeed, I fear that at least some states now doing significant sentencing reform because of prison bills coming due might use clever accounting to afford more prison beds for more offenders if they get a massive yearly influx of federal cash to cover defense services.)

But I really question the notion that greater funding of public defense "would dampen prosecutorial aggressiveness" based on what I see in the operation of the federal criminal justice system. Though certainly not perfectly funded, federal public defenders seem to me to be among the best funded (and certainly the most consistently dedicated and capable and knowledgeable and experienced) of all defense phalanxes that I have seen. And yet I have seen precious little evidence that federal prosecutors are less aggressive because they are frequently facing these defense attorneys in federal criminal cases. (And, of course, we the very largest increase in any jurisdiction's prison population and the lengthy of sentences served over the last 30 years has been at the federal level.)

Moreover, in a few cases in which I have served as an expert witness or amicus at sentencing, I have sometimes perceived that certain federal prosecutors get even more aggressive when they realize that a particular defendant has the resources and personnel needed to put up an especially vigorous defense. (Indeed, I expressly warn some defense attorneys when they seek my formal assistance in a low-profile case that they should consider whether my involvement may risk doing more harm than good due to possible prosecutorial reaction to my involvement.) I do not mean to assert that federal prosecutors are distinctly unfair or uniquely aggressive when going after well-defended defendants, but I do mean to question whether it is really likely that prosecutors will be generally less likely to "strike hard blows" if they know the other side has more ability to defend against those blows.

That said, I do think better funding of state criminal defense is likely to better deter (or later identify) prosecutorial misconduct, and it also could and should have salutory effects on other aspects of state criminal justice systems --- e.g., better funded indigent defense services should be better able to focus on parole systems and expungement efforts and other back-end services for indigent defendants, and perhaps they also would bring more needed strategic constitutional litigation to assail particularly troublesome practices in some state systems. But, to wrap up, I think the only sure-fire way to "dampen prosecutorial aggressiveness," other than to reduce the number of prosecutors, is to dramatically reduce the number of crimes on the books and make sure (through mens rea and jury reforms) that prosecutors have a little more fear of losing when they first think about filing felony charges.

May 2, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, April 25, 2016

"A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities"

The title of this post is the title of this recently-released policy report from The Annie E. Casey Foundation. Here is how the report's introduction get started:

The saying is all too familiar: Do the crime, do the time. But in America’s age of mass incarceration, millions of children are suffering the consequences of their parents’ sentences and our nation’s tough-on-crime practices.

These children feel the absence of that adult — whether it is several nights in jail or years in prison — in myriad ways, even if they weren’t sharing a home. They feel it when their refrigerator is bare because their family has lost a source of income or child support. They feel it when they have to move, sometimes repeatedly, because their families can no longer afford the rent or mortgage. And they feel it when they hear the whispers in school, at church or in their neighborhood about where their mother or father has gone.

Incarceration breaks up families, the building blocks of our communities and nation. It creates an unstable environment for kids that can have lasting effects on their development and well-being. These challenges can reverberate and multiply in their often low-income neighborhoods, especially if they live in a community where a significant number of residents, particularly men, are in or returning from jail or prison. And different obstacles emerge once parents are released and try to assume their roles as caregivers, employees and neighbors.

This report recommends policies and practices that put the needs of children of incarcerated parents first. We call on correctional systems, communities and state and local public agencies to help stabilize families and preserve their connections during incarceration — and successfully move forward once parents come home.

April 25, 2016 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Saturday, April 23, 2016

White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"

Download (2)As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:

Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.

Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....

Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.

  • Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
  • Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
  • Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.

Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.

  • Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
  • Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....

Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.

  • Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
  • Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
  • CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
    • We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
    • At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
    • Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.

April 23, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3)

Thursday, April 21, 2016

"Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans"

The title of this post is the title of this lengthy paper by Kony Kim now available via SSRN. Here is the abstract:

Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans?  To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment.  As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment — and, often, survivors of poverty.

Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions.  My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them.  In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.

In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans?  Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities.  Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.

April 21, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, April 20, 2016

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).

Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will.  Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.

April 20, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (9)

Tuesday, April 19, 2016

Taking full stock of the Prez Clinton's punishment legacy by looking at PLRA (and AEDPA and ....)

Though I have enjoyed seeing the 1994 Clinton Crime bill getting lots and lots of attention recently (example here and here), there is so much more to legacy of the "Clinton years" to the full story of US punishment practices.  This new New Republic commentary, headlined "Another Clinton-Era Law that Needs to Be Repealed: The Prison Litigation Reform Act is still trampling on prisoners' legal rights," tells another piece of the story, and here are excerpts:

Signed into law by President Bill Clinton in 1996 as a rider to the annual congressional appropriations bill, the PLRA laid waste to the ability of incarcerated people to bring prison officials to court for violations of their constitutional rights, whether it be racial discrimination, lack of medical care, or brutality by prison guards.  The act was championed as a solution to the thousands of supposed “frivolous lawsuits” by prisoners, with barely any discussion by Congress about its far-reaching effects.

Locked away, those in prison are easily demonized, unable to refute any exaggerations or myths created by those on the outside. One story publicly hyped by members of Congress leading up to the act’s passage had a prisoner filing suit after receiving crunchy peanut butter instead of creamy.  But when a federal judge researched the case later, he found that the issue wasn’t about that prisoner’s taste in condiments, but that the prisoner had never been reimbursed after returning the item.  The price of a jar of peanut butter might seem trivial to those of us on the outside, but most people in prison are poor and are often deeply in debt.  Plus, many prisons overcharge for simple items (the jar of peanut butter cost $2.50, significantly more than the average cost at the time).  Looking back, the PLRA did not solve a problem of “frivolous” litigation, rather it masked and discredited the legitimate claims of people with nowhere else to turn.

Since the PLRA became law, tremendous burdens have been placed on prisoners wishing to file suit for violations of their constitutional rights.  For example, one of the law’s provisions forces you to go through the prison’s administrative complaint procedures before bringing an actual lawsuit.  This can take months. Imagine a prisoner who is in pain and in need of medical treatment, but ignored by prison staff: She must not only file her complaint with the same staff that is denying her treatment, but wait for a refusal, appeal that decision, and only after a judgment on that appeal can she then file a legal case beyond prison walls.  By that time, it may be too late for a court to do anything.

As the title of this post is meant to suggestion, lots of other Clinton-era federal criminal laws and developments, particularly the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Prez Clinton's decision to sign-on to Congress's rejection of the US Sentencing Commission's crack/powder amendment to equalize the guidelines, ought to be a continuing topic of conversation as we consider putting another Clinton in the White House this year.

Prior related posts:

April 19, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, April 14, 2016

"Costs of Pretrial Detention"

The title of this post is the title of this notable new piece authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Spending on U.S. incarceration has increased dramatically over the last several decades.  Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails.  

Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors.  With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release.  There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis.

Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena.  This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants.  The results show that relying on the cost-benefit model provided here, judges could bring significant savings — approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.

April 14, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, April 13, 2016

Important drug offender data begging hard normative policy question regarding noncitizen US prisoners

Attachment-1I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals."  The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):

U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....

[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.

As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).

The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.

There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons.  As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.

In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.

In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.

The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population.  Federal drug and immigration enforcement are for now inextricably tied together....

Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.

Reforming drug sentencing laws is one thing.  Releasing criminal aliens back into U.S. interior, is quite another.  The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public.  Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.

This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.

It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.

The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?

Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner.  But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).

April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)

Monday, April 11, 2016

"The Battle Against Prison for Kids"

The title of this post is the headline of this new article from The Nation. The piece's subtitle is "We’re feeding children into a system that breaks them," and here is how it gets started:

For as long as youth prisons have existed in the United States, so too has the pretense that there are no youth prisons. Early 19th-century reformers who sought to remove children from the harsh adult penal system established new institutions specifically for the detention of youths.  They didn’t call them prisons, but Houses of Refuge, dedicated to the discipline and reform of newly coined group, “juvenile delinquents.”  Founded with ostensibly laudable intent, the institutions were overcrowded fortresses, riddled with abuse, serving to institutionalize strict social control over poor and immigrant communities.  That is, they were prisons.

And so began the unending march of euphemisms, in which children’s prisons have been known by any other name — residential treatment facilities, youth camps, youth-development centers, to name a few — exposing juveniles to many the same cruelties and racial discriminations of the adult prison system. In the two centuries since its formal birth, the juvenile-justice system has changed radically, while youth prisons have hardly changed at all. It’s as if the clock on reform stopped in the turn-of-the-century Progressive Era and has only recently started shakily ticking again.

Last year, before the election spectacle swallowed the news cycle whole, juvenile-justice reform made headlines as a keystone in President Obama’s legacy-construction efforts.  Overdue political action from state houses has gained serious ground in removing youths from adult prisons.  On any given day, 10,000 juveniles are housed in adult facilities, where they are five times more likely to be sexually assaulted than in juvenile institutions (a monstrous statistic, especially considering the prevalence of sexual abuse in youth facilities).  The necessity of getting kids out of our shameful adult system cannot be overstated.  It’s a limited achievement, though.  And even as more and more youth prisons close, we must be vigilant against “alternatives” that press the same oppressive, discriminatory stigmas of criminality and delinquency onto kids outside prison walls.

April 11, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1)

New Orleans judge threatening to turn public defender funding crisis into a public safety problem

32This local article from the Big Easy reports on notable efforts by a local judge to make sure it is no longer easy for public officials to ignore the problem of inadequate funding of public defenders to represent indigent criminal defendants.  The article is headlined "New Orleans judge orders release of seven inmates charged with serious felonies because of lack of money for defense, but men will remain jailed pending an appeal," and here are the basic details:

In a potentially blockbuster ruling, an Orleans Parish judge on Friday ordered seven indigent inmates released from jail because of a lack of state money for attorneys to represent them amid a squeeze on public defense funding in New Orleans and across Louisiana.

However, Criminal District Court Judge Arthur Hunter stayed his order, which also included a suspension of the men’s prosecutions, pending an appeal from District Attorney Leon Cannizzaro’s office. Assistant District Attorney David Pipes told Hunter an appeal is coming, and Hunter gave him 10 days. The seven men will remain behind bars pending the outcome of that appeal.

All of them face serious felony charges — including murder, armed robbery and aggravated rape — and all have been deemed indigent. Most have spent more than a year behind bars, going months without legal help on their cases, attorneys said.

Hunter ruled that the lack of state funding for the seven men’s defense violated their Sixth Amendment rights and that the resulting uncertainty on when their cases might move forward warrants their release. “The defendants’ constitutional rights are not contingent on budget demands, waiting lists and the failure of the Legislature to adequately fund indigent defense,” Hunter wrote in his 11-page ruling, portions of which he read from the bench.

“We are now faced with a fundamental question, not only in New Orleans but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”

A spokesman for Cannizzaro’s office said the district attorney “believes that releasing defendants charged with serious acts of violence poses a clear and present danger to public safety, and he intends to appeal the ruling.” Spokesman Christopher Bowman added, “It appears that the judge’s ruling declares that a legislative act — namely the most recent budget — violates the Louisiana Constitution.”

Tulane Law School professor Pam Metzger, who is representing all seven in their bid for release, said she was “thrilled that the judge appreciates the extraordinary constitutional obligations of providing poor people with counsel and due process of law.” She said she was disappointed that Hunter stayed his ruling but that attorneys would continue pressing to free the men.

In addition to Metzger, each of the men has an attorney appointed by Hunter. But in his ruling, Hunter said the appointment of private attorneys without any state money available for early witness and defendant interviews, filing motions and strategizing “makes a mockery of the Sixth Amendment right to the effective assistance of counsel.”

Hunter was following directions laid out in a 2005 Louisiana Supreme Court decision on when judges can halt prosecutions because of a lack of adequate indigent defense funds. The court said a judge can stop a case “until he or she determines that appropriate funding is likely to be available.” The “absence of a date certain” when that money will come, Hunter found, also violates the right to due process guaranteed in the 14th Amendment to the U.S. Constitution, as well as the Louisiana Constitution’s edict for the Legislature to “provide for a uniform system for securing and compensating qualified counsel for indigents.”...

Chief Public Defender Derwyn Bunton’s office had turned away the seven cases, citing a severe budget shortfall, bloated workloads and the loss of several experienced attorneys in his office.

Hunter, who has taken drastic measures during past funding shortfalls at the Public Defenders Office — he ordered the release of several inmates after Hurricane Katrina — doled out the seven men’s cases to private attorneys, who promptly sought a halt to the prosecutions and the men’s release. They said they can’t do any work on the cases unless they get money to pay for investigators and other expenses.

Hunter’s ruling came after a series of hearings in his courtroom that began in November with testimony from Bunton and Jay Dixon, who heads the Louisiana Public Defender Board, among others. They testified that indigent defense in Louisiana is facing a crisis because of a system in which local offices are funded largely through fines and fees leveled on criminal defendants, mostly for traffic violations. Those revenues have slid steadily over the past several years, in some parishes more than others. All told, almost a dozen district public defenders across the state have instituted austerity programs.

In New Orleans, that has meant a hiring freeze since last summer and, beginning in January, a refusal by Bunton’s office to accept appointments in serious felony cases — now at 110 and counting — because of a lack of experienced attorneys to handle them, according to Bunton. “Obviously, the charges involved in these cases are really serious, so I do think folks should be concerned about public safety,” Bunton said Friday. “We wouldn’t need to be in this position if (the state) provided the resources that are necessary under the constitution. You can only prosecute as fast as you can defend, and if you can’t defend, you can’t prosecute.”...

The defenders’ funding troubles may be getting even worse. In Baton Rouge, lawmakers grappling with the state’s deep budget morass have threatened deep cuts in the $33 million in annual state funding that has supplemented local revenue, making up about a third of the overall funding for indigent defense across the state. The Louisiana Supreme Court has in the past endorsed a halt to prosecutions until adequate funding becomes available. But it has stopped short of ordering action by the Legislature.

At a recent hearing, Metzger described an “abject state of financial crisis. There is no money to fund these defenses. ... The cause of the delay rests entirely with the state. The Legislature has been on notice not simply for weeks or months or years but for decades.”

In a legal filing last week, however, Cannizzaro’s office described the private attorneys seeking to be relieved from the cases as bent on “nothing less than anarchy” by pressing for the defendants’ release and a halt to their prosecutions, while “hoping for a paycheck” at the expense of justice. “They are seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent,” Pipes wrote.

A statement from Mayor Mitch Landrieu called Hunter’s ruling “a miscarriage of justice on all sides” and urged the judge “for the sake of the victims and their families” to “reconsider putting alleged murderers back on the streets, like Darrian Franklin.”

“The state needs to live up to its obligation by fully funding the public defender, and the judge should continue to work on getting the State to appropriately fund its responsibilities,” the statement read.

April 11, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, April 07, 2016

Former Prez Clinton takes on protestors complaining about his tough-on-crime policies

This new Reuters article, headlined "Bill Clinton confronts protesters who say his crime reforms hurt blacks," reports on a notable exchange about crime and punishment involving former President Bill Clinton today. Here are the details:

Former President Bill Clinton faced down protesters angry at the impact his crime reforms of 20 years ago have had on black Americans and defended the record of Hillary Clinton, his wife, who is relying on the support of black voters in her quest for the presidency. The former president spent more than 10 minutes confronting the protesters at a campaign rally in Philadelphia for his wife on Thursday over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people....

In Philadelphia, several protesters heckled the former president mid-speech and held up signs, including one that read "CLINTON Crime Bill Destroyed Our Communities."

Video footage of Hillary Clinton defending the reforms in 1994 has been widely circulated during the campaign by activists in the Black Lives Matter protest movement. In the footage she calls young people in gangs "super-predators" who need to "be brought to heel." Hillary Clinton, 68, who also has faced protesters upset by her remarks, in February said she regretted her language.

Bill Clinton, 69, who was president from 1993-2001, on Thursday defended her 1994 remarks, which protesters say were racially insensitive, and suggested the protesters' anger was misplaced. "I don't know how you would characterize the gang leaders who got 13-year-old kids hopped on crack and sent them out on the street to murder other African-American children," he said, shaking his finger at a heckler as Clinton supporters cheered, according to video of the event. "Maybe you thought they were good citizens. She (Hillary Clinton) didn't."

"You are defending the people who kill the lives you say matter," he told a protester. "Tell the truth."

Hillary Clinton promised to end "mass incarceration" in her first major speech of her campaign last year. She has won the support of the majority of black voters in every state nominating contest so far, often by a landslide....

Bill Clinton said last year that he regrets signing the Violent Crime Control and Law Enforcement Act into law because it contributed to the country's high incarceration rate of black people for nonviolent crimes. On Thursday, he did not explicitly recant those regrets, but appeared to be angry at any suggestion the bill was wholly bad.

The legislation imposed tougher sentences, put thousands more police on the streets and helped fund the building of extra prisons. It was know for its federal "three strikes" provision that sent violent offenders to prison for life. The bill was backed by congressional Republicans and hailed at the time as a success for Clinton....

Bill Clinton's remarks on Thursday drew criticism online. Some saw him as dismissive of the Black Lives Matter movement, a national outgrowth of anger over a string of encounters in which police officers killed unarmed black people.

April 7, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, April 06, 2016

"Normative Retroactivity"

The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:

When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule.  The current retroactivity doctrine relies on a confusing substance-procedure dichotomy.  Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question.  Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.

This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity.  Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations.  Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.

April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, April 03, 2016

Might the US be willing to learn from the German prison experience?

The question in the title of this post is prompted by this new Huffington Post commentary by Vincent Schiraldi, headlined "What we can learn from German prisons."  The commentary provides a bit of a preview of this segment to air tonight on 60 Minutes under the title "This is prison? 60 Minutes goes to Germany: Germany's prison system keeps convicts comfortable, costs less and has lower recidivism rates, but would Americans ever accept it?".  Here is the start of the Huffington Post piece:

On Sunday, April 3, 60 Minutes will air a story on several U.S. delegations to German prisons by advocates, researchers and public officials that should be mandatory viewing for anyone who works in or cares about America’s massive prison problem. In a country that has only a fraction of our incarceration rate, even Germany’s deepest-end prisons are humane and decent in ways that, at least at present, are difficult to fathom in the U.S. context.

The groups who funded or organized the trips - the Vera Institute of Justice, John Jay College of Justice, and the Prison Law Office - hope to change that. Inspired by these delegations, when I was working for Mayor Bill de Blasio’s Office of Criminal Justice, I organized a study tour to one of the prisons they had visited - the Neustrelitz Prison near Berlin, which houses adolescents and young adults.

The place couldn’t have been more different than a U.S. prison or juvenile facility. In fact, it was a bit of both, because young people are allowed to be tried in Germany’s juvenile courts up to age 21, unlike U.S. juvenile courts whose jurisdiction expires somewhere between ages 16 and 18, depending on the state.

The young people we met were all involved in programming from farming, to wood shop, to metal work, to in-depth therapy. The freedom of movement was extraordinary, with most youth sleeping in unlocked rooms at night and eventually going on home visits and transitioning out to daytime work, returning to the facility at night. Sentences were much shorter than those experienced by people locked up in the U.S., which partially explains why only 79 out of every 100,000 Germans are behind bars, compared to America’s world-leading incarceration rate of 700 per 100,000.

April 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, April 02, 2016

"Racial Disparities in Youth Commitments and Arrests"

The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:

Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half.  Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years.  Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.

Both white youth and youth of color attained substantially lower commitment rates over these 10 years.  For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000).  The combined effect was to increase the commitment disparity over the decade.  The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).

As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely.  Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.

Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent.  Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.

April 2, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 31, 2016

Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science

The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.

The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States."  Here is an excerpt from that introduction:

This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.”  She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks.  At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination.  The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years.  The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization.  While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.

March 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"

In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  Today I received an email concerning the great new work of this great new initiative.  Here is part of this email reporting on this new report from FPP:

As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment.  The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.

The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country.  By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.

“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”

Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...

“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”

March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, March 30, 2016

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, March 28, 2016

Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"

I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing.  Here are the event/paper details sent my way:

Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model.  The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.

The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world.  Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population.  This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.

The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment.  We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes.  Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.

Workshop Contacts: andré douglas pond cummings (ADCummings @, Adam Lamparello (AXLamparello @ and Yvonne Lindgren (YFLindgren @

Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont ( with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.

Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.

March 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, March 25, 2016

"Poor white kids are less likely to go to prison than rich black kids"

The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems.  Here is the post's discussion of the research:

It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.

In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.

He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.

The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.

About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.

The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.

Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....

It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....

In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.

The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.

March 25, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, March 24, 2016

Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels

Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:

Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.

A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.

Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....

The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.

Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.

Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:

We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days.  “The incredible databases of what we have for sports just blow away anything there is in criminal justice.  It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”

Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short.  One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons.  So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.

Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison.  The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system.  To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year.  After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.

While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be.  The punishment rate depends on the number of crimes reported by the FBI.  But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft.  It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations.  Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.

“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said.  “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”

The other trouble with the punishment rate is in the lag between crime and judgment.  Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes.  It also doesn't look at what crimes those in prison were convicted of.  So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011.  That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.”  But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”

I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.

March 24, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, March 22, 2016

"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"

The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:

Ohio has a mass incarceration crisis.  There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages.  And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems.  We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.

Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond.  People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction.  Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.

The result is a system that is costing our state in every sense of the word.  Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low.  In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place.  Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population.  Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.  

State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled.  In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86).  This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails.  While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.

The time for modest, incremental steps is over.  We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment.  We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake.  We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.

Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws.  Once again, state leaders have invited members of that committee to use this opportunity to change our justice system.  However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee.  Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language.  Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration.  It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.

March 22, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, March 17, 2016

Thoughtful nuanced comments from George Will on modern crime and punishment

The Washington Post has published this astute new commentary by Geoge Will under the headline "Sentencing reform alone won’t fix crime and punishment in America." I recommend the full piece, and here is how it starts and ends:

Sen. John Cornyn recalls visiting a Texas prison where some inmates taking shop classes could not read tape measures. Cornyn, who was previously a district court judge and Texas Supreme Court justice, knows that prisons are trying to teach literacy and vocations, trying to cope with the mental illnesses of many inmates and trying to take prophylactic measures to prevent drug-related recidivism by people imprisoned for drug offenses.  “The criminal-justice system,” he says, “has become by default a social services provider.”

It is not, however, equipped to perform so many functions.  Cornyn, a Republican, is part of a bipartisan congressional group negotiating sentencing reform, one of many needed repairs of the criminal-justice system.  What justice requires, frugality encourages: Too many people are in prison for too long, and too often, at a financial cost disproportionate to the enhancement of public safety....

Old theories about the causes of crime need to be rethought.  During the Great Depression, unemployment soared to 25 percent, yet in many cities crime fell.  Demographic factors?  Crime rates often vary with the size of society’s cohort of young males: Crime declined considerably during World War II not just, or even primarily, because unemployment was negligible but also because so many young males were in military discipline.

In 2010, one year after the Great Recession’s jobs destruction doubled the unemployment rate, the property crime rate fell and violent crime reached a 40-year low.  Current high incarceration rates had something to do with that.  But how much?  James Q. Wilson, the most accomplished social scientist since World War II, accepted the estimate that increased incarceration explains “one-quarter or more of the crime decline.”  Wilson also suggested an environmental factor: “For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.”  Since the 1970s, lead has been removed from gasoline and paint for new homes, and “the amount of lead in Americans’ blood fell by four-fifths between 1975 and 1991.”  Wilson cited a study that ascribed more than half the 1990s’ decline in crime to the reduction of gasoline lead.  Clearly, sentencing reform is just one piece of a complex policy puzzle.

March 17, 2016 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, March 15, 2016

Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014

USA-JUSTICE-CLEMENCYRegular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been.  Here are just a few of my prior related posts on this front:

Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:

In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.

Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.

More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.

Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....

A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.

But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...

The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....

Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.

So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.

A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."

This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....

Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.

Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.

Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.

March 15, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, March 12, 2016

Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget

Prison-profitsBill Otis here at Crime & Consequences flagged this interesting local article from Indiana headlined "Prison officials say lighter sentences aren't saving money." The article discusses a report issued by the Indiana Department of Correction asserting that "costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities" as a result of a sentencing reform law enacted in 2014. Bill seems to think this article reveals that sentencing reforms do not deliver on promised cost savings, but a read of the full article (and not just the parts highlighted by Bill) reveals that some funny math is behind the latest cost claims now coming from the Indiana DOC:

Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”

Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups.  But, according to the department's report, there's no money to send. This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014....

Corrections officials say the new law will cost an additional $400,000 in the first six months of this year - for jail costs alone. That expense is expected to climb before the year’s end. That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report. The department claims it can house the same inmate in a prison for just under $10 a day.

Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims. Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.

A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold. Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.

Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.

Promised savings from sentencing reform was key to getting it passed and to winning support from sheriffs, judges and local officials who feared it presented another unfunded mandate by the state. The Legislature set aside an initial $60 million for communities to offset initial costs. But lawmakers assured critics that the sentencing reform would eventually pay for itself.

House Judiciary Committee Chairman Greg Steuerwald, R-Avon, who helped craft the sentencing reform law with Steele, also questioned the validity of the Corrections Department's report. But, he noted, “We’re in a transition year.” “I expect to see much different numbers by next year," he said.

March 12, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, March 10, 2016

Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms

One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:

Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?

The lives and property of innocent Americans are at stake.  Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....

Supporters of lower prison sentences also argue that judges need more discretion.  They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.

But prior experience with judicial discretion in sentencing counters this claim.  It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences.  Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.

The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion.  Criminals receive equal punishment for equal crimes.  And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....

In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision.  Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years.  Early release programs don’t appear to be working.

Mandatory minimums help keep these individuals behind bars where they belong.  That’s one explanation for why crime rates remain down.  The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people.  Releasing prisoners too soon could condemn many Americans to becoming victims of violence.  This can be avoided if prisoners are not released before their sentences have been served.

March 10, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, March 09, 2016

"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"

The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:

Why can’t most people in prison vote?  Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin.  But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.

The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery.  This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement.  Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....

A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment.  However, that reasoning falls doubly short.  Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal.  Why is the right to vote excluded?  Also, the social contract may not need civil death to defend it.  The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.

Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country.  They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere.  In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths.  Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.

International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico.  Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.

The sky hasn’t fallen in Vermont or Maine either.  Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else.  Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout.  At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States.  The death of civil death doesn’t kill democracy.

As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":

Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief.  "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."

Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.

March 9, 2016 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (5)

US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"

I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:

Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.

The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.  

The Commission also found that:

  • Most offenders who recidivated did so within the first two years of the follow up period;
  • Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
  • An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
  • An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).

Download the full report.

I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.

March 9, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, March 04, 2016

"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"

The title of this post is the title of this new article now available via SSRN authored by Michael Tonry.  Here is the abstract:

Concern for equality and human dignity is largely absent from American sentencing.  Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer.  The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies.  The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.

The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems.  Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.

March 4, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, March 03, 2016

Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"

-radleybalkoflickrAs reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:

As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.

Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.

For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.

March 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Tuesday, March 01, 2016

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, February 29, 2016

No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case

The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases.  For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year.  Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.

On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186.   The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner.  But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:

Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together.  The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.  Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

February 29, 2016 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (1)

Sunday, February 28, 2016

Profiling a federal district judge eager to make the case for federal sentencing discretion

The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:

Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.

But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....

Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created.  The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts.  Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range.  And any discretion on the part of judges was intended to be restricted to the limits of that range.  But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic.  What’s the point of a judge if he is discouraged from offering his judgment?

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction.  At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

Coughenour’s position is clear.  He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....

[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced.  And then, he started visiting prisons all over the country with the same purpose.  To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private.  A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.

During these meetings, the judge always asked the same questions: “How much time do you have left?  What are you doing to prepare yourself for getting out?  Are you dealing with anything you can’t handle?  Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food.  The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy.  But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.

February 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)