Friday, April 13, 2018

US District Judge explains why he believes "the scales of justice tip in favor of rejecting plea bargains"

A helpful reader made sure I saw a remarkable new opinion from US District Judge Joseph Goodwin of the US District Court for the Southern District of West Virginia in US v. Stevenson, No. 2:17-cr-00047 (S.D. W. Va. April 12, 2018) (available here). The starts of the 19-page opinion should readily reveal why criminal justice fans why this opinion is today's must-read:

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case.  I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.

Wowsa! #morejurytrials?

April 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16)

Sunday, April 08, 2018

George Will commentary assails felon disenfranchisement in Florida

I am very pleased to see this effective commentary by George Will under the headline "There’s no good reason to stop felons from voting." I recommend the short piece in full, and here are parts that struck me as especially effective:

Intelligent and informed people of good will can strenuously disagree about the wisdom of policies that have produced mass incarceration. What is, however, indisputable is that this phenomenon creates an enormous problem of facilitating the reentry into society of released prisoners who were not improved by the experience of incarceration and who face discouraging impediments to employment and other facets of social normality.  In 14 states and the District , released felons automatically recover their civil rights.

Recidivism among Florida’s released felons has been approximately 30 percent for the five years 2011-2015.  Of the 1,952 people whose civil rights were restored, five committed new offenses, an average recidivism rate of 0.4 percent.  This sample is skewed by self-selection — overrepresentation of those who had the financial resources and tenacity to navigate the complex restoration process that each year serves a few hundred of the 1.6 million.  Still, the recidivism numbers are suggestive.

What compelling government interest is served by felon disenfranchisement? Enhanced public safety?  How?  Is it to fine-tune the quality of the electorate?  This is not a legitimate government objective for elected officials to pursue.  A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community?  The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.

April 8, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (4)

Thursday, April 05, 2018

"Cast into Doubt: Free Will and the Justification for Punishment"

The title of this post is the title of this interesting-looking new paper available via SSRN authored by Stephen Koppel, Mark Robert Fondacaro and Chongmin Na.  Here is the abstract:

Criminal punishment is justified on either retributive or consequential grounds.  The retributive justification is premised on a commonsense view of free will: offenders can freely choose to commit crimes and so deserve blame for their actions.  The consequentialist justification, in contrast, is not necessarily premised on the free will concept, but rather justifies punishment when it is the most cost-effective way of preventing crime.  Science elucidating the mechanistic causes of human behavior has thrown the notion of free will into doubt, leading some to predict a shift in public support away from retribution towards consequentialism.  Past research shows that free will doubt weakens support for retribution, but less is known about its effects on support for consequentialism, or about whether these effects differ across the crime severity spectrum.

In this study, we explore the effects of free will doubt on support for retribution and consequentialism in response to three different categories of crime — drug crime, property crime, and violent crime — which have been shown to evoke varying levels of emotion.  We find clear inconsistencies across the crime spectrum.  For high affect crime, free will doubt weakens support for retribution via blame, and increases support for consequentialism.  For low affect crime, free will doubt weakens support for retribution to an even greater extent, yet also decreases support for consequentialism via blame. These findings suggest that, as science reveals the mechanistic causes of criminal behavior, support for criminal punishment will decrease, especially with respect to less serious crimes.

April 5, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, April 04, 2018

"The Expansion of Child Pornography Law"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN.  Here is the abstract:

This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.  These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning.  What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children.  If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

April 4, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, March 29, 2018

"The Excessive Fines Clause: Challenging the Modern Debtors' Prison"

The title of this post is the title of this new article by Beth Colgan now available via SSRN.  Here is the abstract:

In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country.  Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions.  When a person is unable to immediately pay off economic sanctions, "poverty penalties" are often imposed, including interest and collections fees and probation.  Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver's and occupational licenses, restrictions on public benefits, and even incarceration.  Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time.  These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors' prisons.

Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay.  While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors' prison crisis lies in the Eighth Amendment's Excessive Fines Clause, which provides protection at sentencing.  To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines.  This Article examines the key concerns underlying those determinations, explicating the Court's interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court's desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions.  Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.

In addition, this Article examines the meaning of excessiveness, arguing that one's ability to pay is relevant to the question of whether a fine is constitutional.  The Court has adopted the Cruel and Unusual Punishments Clause's gross disproportionality test for measuring excessiveness.  Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.

March 29, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Judge Jed Rakoff sentences rapper DMX to one year in federal prison for tax fraud

US District Court Judge Jed Rakoff has long been a vocal advocate against mass incarceration and other problems he seeing is the operation of the federal criminal justice system. But that view did not preclude him from thinking he needed to send a notable white-collar criminal to federal prison yesterday as reported in this local article (which provides a nice short review of the parties' sentencing arguments):

Embattled rapper DMX was sentenced Wednesday to one year in prison for tax fraud — but insisted he wasn’t “like a criminal in a comic book” trying to scheme against the government.  DMX, real name Earl Simmons, admitted in November to evading $1.7 million in taxes. He was also given three years of supervised release.

The 47-year-old performer, whose top songs include “Party Up (Up in Here),” stood accused of hiding money from the IRS from 2010 to 2016 — largely by maintaining a “cash lifestyle.” “I knew that taxes needed to be paid,” Simmons said shortly before Manhattan Federal Judge Jed Rakoff handed down his sentence. “I hired people but I didn’t follow up. I guess I really didn’t put too much concern into it.

“I never went to the level of tax evasion where I’d sit down and plot . . . like a criminal in a comic book,” said Simmons, who grew teary at points during the proceeding.

Prosecutors had pushed for Rakoff to hit Simmons with a sentence ranging from four years and nine months up to five years in prison. In their sentencing papers, prosecutors urged Rakoff to "use this sentencing to send the message to this defendant and others that star power does not entitle someone to a free pass, and individuals cannot shirk the duty to pay their fair share of taxes."

Simmons' lawyers, Murray and Stacey Richman, asked Rakoff for a sentence of in-patient rehab. With treatment — and strict supervision — Simmons could keep performing, allowing him to repay his whopping tax debt, they insisted. They also floated the idea Rakoff could appoint a trustee who would oversee Simmons' business dealings — making sure the tax man got paid. They maintained that Simmons' traumatic and impoverished upbringing led him astray as an adult, including toward addiction and bad financial decisions — but that he has a talent to "make beauty out of ugliness."

The Richmans played the music video for Simmons' 1998 song "Slippin'", claiming lyrics such as "If I'm strong enough I'll live long enough to see my kids/Doing something more constructive with their time than bids" indicate his search for redemption through art. "He is the American dream, and sometimes the American dream takes you to court," Stacey Richman said. "He has been able to raise himself from the ghetto."

Rakoff sympathized with Simmons, saying he was another example of how "the sins of the parents are visited upon their children" — but felt prison was necessary to deter would-be tax fraudsters....

Other performers have done time for tax raps.

Former Fugees singer Lauryn Hill got a three-month sentence in federal lockup for not paying taxes on $1.5 million in income from 2005 to 2007.

Fat Joe, whose legal name is Joseph Antonio Cartagena, got four months in federal prison after he didn't file tax returns on more than $3 million in income.

Ja Rule, who is legally named Jeffrey Atkins, received a 28-month sentence for not filing tax returns that ran concurrently with a two-year weapons sentence, according to reports.

March 29, 2018 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, March 28, 2018

"What If Prosecutors Wanted to Keep People Out of Prison?"

The question in the title of this post is the headline of this lengthy New York Magazine article, which is primarily focused on Scott Colom, a 35-year-old district attorney in northeast Mississippi.  But the article also covers how Colom is part of a new focus on prosecutors within efforts to reform criminal justice systems.  Here are excerpts from a long article:

By mid-October, with the [2016] election a few weeks away, Colom knew he was gaining traction. Then a colleague sent him a text message complimenting his new TV commercial. “I was like, What are you talking about?” Television hadn’t fit into his budget. Later in the week, his aunt managed to record the ad on her DVR, and he watched it at her house. A voice at the end said it was paid for by a group called Mississippi Safety & Justice.

He looked it up online and discovered it was a PAC funded by liberal hedge-fund billionaire George Soros, who lives in Westchester County, New York. Bemused, Colom sought advice from consultants in Washington, D.C., who’d been helping him with marketing. They advised Colom to post photos and videos on his website for the PAC to borrow for future ads but warned him not to reach out to the group. Campaign-finance laws forbid direct contact between candidates and independent funders. Colom followed the advice, then went back to knocking on doors....

In the end, Mississippi Safety & Justice had spent $716,000 on the election, dwarfing both the $49,000 Allgood had raised and the $150,000 Colom collected himself. Allgood groused that the money had created an uneven playing field, and Colom himself is defensive about it, even now. But whatever the donation’s impact on the race, it put Colom at the center of a national experiment to remake the criminal-justice system.

For almost three decades, Soros has been quietly funding efforts to end the drug war and reduce the inmate population. Throughout the ’90s and 2000s, he was behind almost every state ballot initiative to legalize marijuana and has given millions in grants for liberal legal scholarship. It was Colom’s luck that in 2015 he’d adopted a new strategy: backing progressives in local elections, specifically DAs, who every day make decisions about whom to charge, with how serious of a crime; whether to engage in plea negotiations; how much prison time, if any, to recommend. In other words, unlike legislators, government lawyers have the power to push down incarceration rates with the stroke of a pen, or a word to a judge. Colom was one of his first test cases....

By the end of his first year in office, Colom had doubled, to 218, the number of defendants in the alternative sentencing program, where if you stay clean and get a job or go to school your charges will eventually be cleared. The scope of the program’s services has expanded too; the administrator, a former social worker, helps participants get into rehab, GED programs, and vocational training, and even arranges rides when necessary, since the area has no bus system.

While alternative sentencing isn’t revolutionary — there are similar programs across the country — it’s a scale model of what Colom has in mind when he dreams of a system built on different incentives. “What we’ve got to do is deal with the addiction that causes people to use drugs,” he says, musing that maybe prisons should be scored on how effectively they rehabilitate people, the way public schools are scored on student achievement. More immediately, Colom is strategizing with Tucker Carrington, a law professor who runs the University of Mississippi’s innocence project, to establish a conviction-review unit, as DAs in Brooklyn, Chicago, Dallas, and other metropolises have done.

March 28, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, March 26, 2018

"The War on Drugs Breeds Crafty Traffickers"

The title of this post is the title of this notable new op-ed in the New York Times authored by Sanhoe Tree. I recommend the piece is full, and here are excerpts:

Politicians often escalate drug war rhetoric to show voters that they are doing something. But it is rare to ignore generations of lessons as President Trump did earlier this month when he announced his support for the execution of drug traffickers. This idea is insane. But the war on drugs has never made any sense to begin with.

Executing a few individual smugglers will do little to stop others because there is no high command of the international drug trade to target, no generals who can order a coordinated surrender of farmers, traffickers, money launderers, dealers or users.  The drug trade is diffuse and can span thousands of miles from producer to consumer. People enter the drug economy for all sorts of reasons — poverty, greed, addiction — and because they believe they will get away with it.  Most people do.  The death penalty only hurts the small portion of people who are caught (often themselves minorities and low-level mules).

Indeed, on the ground, the threat of execution will even help those who aren’t caught because they can charge an increased risk premium to the next person in the smuggling chain. The risk of capture and punishment increases as drugs move from farm to processing lab, traversing jungles, through cities, across oceans, past borders, distributed by dealers and purchased by consumers.  The greater the risk to smugglers in this chain, the more they can demand in payment....

An overreliance on intensive policing over the decades has also produced a rapid Darwinian evolution of the drug trade.  The people we have typically captured tend to be the ones who are dumb enough to get caught.  They may have violated operational security, bragged too much, lived conspicuous lifestyles or engaged in turf wars.  The ones we usually miss tend to be the most innovative, adaptable and cunning. We have picked off their clumsy competition for them and opened up that lucrative economic trafficking space to the most efficient organizations.  It is as though we have had a decades-long policy of selectively breeding supertraffickers and ensuring the “survival of the fittest.”

To support his case for executions, Mr. Trump cites draconian penalties in other countries. Iran has used the death penalty extensively in drug cases, but more than 2.8 million Iranians still consume illicit drugs.  Earlier this year, the Iranian government even repealed the use of executions in most drug cases which could spare up to 5,000 people on death row.

Mr. Trump often praises President Rodrigo Duterte’s brutal drug war in the Philippines, which has claimed 12,000 to 20,000 lives in mostly extrajudicial killings.  But there is little indication that drug use has actually decreased.  In fact, as the killings have increased, so too have the government’s drug use estimates.  What began as 1.8 million users at the beginning of 2016 grew to three million and later four million.  Last September, the Philippine Foreign Secretary, Alan Peter Cayetano, even raised that estimate to seven million. The higher numbers are likely inflated, but more killings do not appear to reduce the number of users.

Singapore notoriously refuses to publish reliable drug-use statistics, so there is no way to show whether executions have any measurable effect on drug consumption.  As Harm Reduction International pointed out, however, Singapore’s seizures for cannabis and methamphetamine increased 20 percent in 2016 while heroin seizures remained stable. Moreover, 80 percent of Singapore’s prisoners are incarcerated for drug-related offenses.  All of this suggests, Singapore’s famous panacea to solve the drug problem is not as miraculous as it seems....

Mr. Trump is not advancing a new strategy to deal with opioids.  It was President Clinton who put these death penalty statutes on the books as part of the 1994 crime bill, but they remain unused.  Mr. Trump and Attorney General Jeff Sessions are trying to change that.  They want to use those laws in racketeering cases and ones involving large quantities of drugs even though the Supreme Court has ruled that capital punishment should be reserved only for crimes resulting in death.

The Donald Trump of 2018 should take a lesson from the Donald Trump of 1990 when he told the Miami Herald: “We are losing badly the war on drugs. You have to legalize drugs to win that war.”

March 26, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Sunday, March 25, 2018

"Prison Crime and the Economics of Incarceration"

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

As America’s prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged to measure the benefits and costs of incarceration.  The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society.  The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms.  Once these benefits and costs are quantified, empirical scholars are able to assess whether it “pays,” from an economic perspective, to incarcerate more or fewer criminals than we currently do.

Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration.  In each of these areas, policymakers rely heavily on empirical scholars’ work, whether by adopting their general methods or incorporating their specific results.

While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: they fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented “in society.”  Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff.  This exclusion is significant, as prison crime is rampant, both in relative and absolute terms.

To address this oversight, this Article makes several contributions: First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework.  Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus.  Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses.  As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.

March 25, 2018 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, March 21, 2018

"Measuring Change: From Rates of Recidivism to Markers of Desistance"

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

Reducing the incidence of crime is a primary task of the criminal justice system, and one for which it rightly should be held accountable.  The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment.  This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of the criminal justice interventions, or of those who participate in them.  This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid stand-alone metric imposes on the criminal justice system a responsibility outside its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens.  Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. 

One such alternative is readily-available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends at all, but also by increasing intervals between offenses and patterns of de-escalating behavior.  These easily-obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate to positive (or negative) life change.  They also resemble more closely the ways in which other fields that address behavioral change, such as education, attempt to measure change over time.

Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection.  Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction.

March 21, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, March 19, 2018

"Informed Misdemeanor Sentencing"

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

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant.  But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future.  Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future.  Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform.

This Article’s goal is two-fold.  First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing.  Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case.  Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.  In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.

March 19, 2018 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

"Legal Punishment and Free Will: An Epistemic Argument Against Retributivism"

The title of this post is the title of this new paper authored by Gregg Caruso recently posted to SSRN. Here is its abstract:

Within the United States, one of the most prominent justifications for legal punishment is retributivism.  This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong — this could include pain, deprivation, or death.  For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment.  This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.  A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions.  Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing.  And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.”

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it.  One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism.  In Section 1, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism.  In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it.  I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment.  I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice.  I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

March 19, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, March 16, 2018

New Philly DA puts forward new policies intended to "end mass incarceration and bring balance back to sentencing"

Web-larry-krasner-winner-1024-x-576This Slate article, headlined "Philadelphia’s New Top Prosecutor Is Rolling Out Wild, Unprecedented Criminal Justice Reforms," reports on the remarkable new policies put forward by the former defense attorney who is the newly elected Philly DA.  Here are highlights:

On Tuesday, Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”

The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.

“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.

Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.

In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”

The policies memo is available at this link, and all sentencing fans will want to check out the entire document.

March 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Tuesday, March 13, 2018

"Principles of Risk Assessment: Sentencing and Policing"

The title of this post is the title of this new essay by Christopher Slobogin recently posted to SSRN. Here is the abstract:

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making.  To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs).  RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged.  But RAIs bring with them their own set of controversies.

In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases.  After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing.  While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well.

March 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (1)

Friday, March 09, 2018

"The Reintegrative State"

The title of this post is the title of this timely paper authored by Joy Radice that has just been posted to SSRN.  Here is its abstract

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them.  A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families.  Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism.  Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance.  States have responded.  By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record.  Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship.  The stigma of a conviction follows them for a lifetime, even for the most minor crimes.

This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State.  It makes four contributions to the growing literature on collateral consequences and criminal records.  First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.  Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes.  Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records.  Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status.  To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release.  The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

March 9, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Thursday, March 08, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Highlighting that registries are not only for sex offenders in many states

This new Marshall Project piece, headlined "Convicted of a Drug Crime, Registered with Sex Offenders," focuses on the broad reach of the offender registry employed in Kansas and debate over its reform.  I recommend the piece in full, and here are excerpts from the piece:

Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts.  Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder.  Tennessee added animal abuse.  Utah added white collar crimes.  A few states considered but abandoned plans for hate crime and domestic abuse registries.  At least five states publicly display methamphetamine producers.

But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders.  As deaths from opioids rise, some public officials have focused on addiction as a public health issue.  Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals.  At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.

The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry.  “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.

The Kansas law, first passed in 2007, now requires anyone convicted of manufacturing, distributing, or possessing “with intent to distribute” drugs other than marijuana to remain on the registry for a minimum of 15 years (and a maximum of life, for multiple convictions.)  During that time, they must appear at their county sheriff’s office four times a year, as well as any time they move, get a new job, email address, vehicle, or tattoo.  Most of this information is online, searchable by name or neighborhood, and members of the public can sign up to be emailed when an offender moves in or starts work near them.  (In 2013, when businesses expressed fear of vigilantes targeting registrants at work, lawmakers removed employment addresses from the website.)  During the quarterly sheriff visits, they must pay $20 and have their picture retaken; if they work or go to school in another county, they must register there as well.  “Any time I get a new job, I have to say, ‘Sorry, I need time off’ in the first 72 hours,” said Juston Kerns, 35, arrested for involvement in the sale of methamphetamine in 2014.

A few years ago, Wesley Harden — convicted in 2008 of selling methamphetamine after he led police on a high-speed chase — was arrested and charged with “failure to register.” Harden, 35, showed up as required, but he’d recently failed to report a jet ski as a new vehicle.  He doesn’t know for sure how the authorities discovered the jet ski, but thinks it has to do with pictures he posted on Facebook.  Harden received three years of probation, but the punishment for failing to register can include prison time, even if the original conviction was handled without incarceration.  Last year, 38 people were sent to prison over their failure to register for drug crimes, and the Kansas Sentencing Commission estimates that removing drug crimes would save the state roughly a million dollars each year....

Many law enforcement officials support the registry on public safety grounds. “People who sell drugs, there tends to be dangerous activity that takes place around their residence,” said Ed Klumpp, a retired Topeka police chief who lobbies for law enforcement at the legislature and opposes the current bill. “If you’re raising children in the neighborhood, it’s good to know there is someone down the street convicted of selling or manufacturing, so maybe they won’t send the kids to get candy there on Halloween.”

In recent years, lawyers around the country have argued to increasing success that registration requirements are unconstitutional.  One county in Colorado recently took its registry offline after a judge found it to be cruel and unusual punishment. California recently passed a law allowing sex offenders to be removed from the registry after 10 to 20 years if they have not committed another serious or violent felony or sex crime.

But beyond the legal questions are practical ones.  Little is known about whether registries prevent crime, and University of Michigan law professor J.J. Prescott has speculated that they may even facilitate crimes that involve buyers and sellers.  “Imagine I move to a new city and I don't know where to find drugs,” he said.  “Oh, I can just look up people on the registry!”

Evidence to support this theory is scant — and law enforcement leaders in Kansas say they have not encountered the problem — but at the February legislative hearing, Scott Schultz, the executive director of the Kansas Sentencing Commission, said he had learned of one registrant who found people at her door, looking to buy drugs.  They’d seen her address online. “I’ve called it, tongue in cheek, state-sponsored drug-dealing,” Schultz said, describing the registry as an “online shopping portal for meth and other drugs.”

March 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

March 8, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (6)

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry

Images (8)As reported in this Axios piece, "President Trump on Wednesday launched, by executive order, the Federal Interagency Council on Crime Prevention and Improving Reentry." Here is more:

The president enacted the council with the aim of reducing crime while looking for ways to "provide those who have engaged in criminal activity with greater opportunities to lead productive lives."...

“We applaud President Trump for following through on his stated commitment to reducing crime, reforming our prisons and rehabilitating individuals who are hungry for a second chance,” [said] Mark Holden, general counsel at Koch Industries who recently launched the Safe Streets and Second Chances prison reform initiative, told Axios. Holden said he is particularly encouraged that Jared Kushner will be one of the co-chairs.

While she thinks this is a good step from the administration, Inimai Chettiar, director of the justice program at the Brennan Center for Justice told Axios, "there can be no real criminal justice reform without reducing the number of people entering prison. The President and Attorney General are attempting to kill bipartisan sentencing reform in Congress, and offering incremental reentry reforms instead."...

The executive order calls for "mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring," for inmates. "Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs." The order asks for a report from the council within 90 days that will outline a timeline for ways to reduce crime and recidivism.

The council will be co-chaired by Jared Kushner, Attorney General Jeff Sessions and the Assistant to the President of Domestic Policy Andrew Bremberg.  The council will include the heads of: The Department of the Treasury, the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Education, the Department of Veterans Affairs, the Office of Management and Budget, and the Office of National Drug Control Policy.

The executive order asks for ways to reduce recidivism and better re-entry for those coming out of the criminal justice system, but does not suggest looking at changes to sentencing guidelines. 

The full Executive Order creating the Federal Interagency Council on Crime Prevention and Improving Reentry can be accessed at this link. The first section of the EO provides as follows:

Section 1. Purpose. The Federal Government must reduce crime, enhance public safety, and increase opportunity, thereby improving the lives of all Americans. In 2016, the violent crime rate in the United States increased by 3.4 percent, the largest single-year increase since 1991. Additionally, in 2016, there were more than 17,000 murders and nonnegligent manslaughters in the United States, a more than 20 percent increase in just 2 years. The Department of Justice, alongside State, local, and tribal law enforcement, has focused its efforts on the most violent criminals. Preliminary statistics indicate that, in the last year, the increase in the murder rate slowed and the violent crime rate decreased.

To further improve public safety, we should aim not only to prevent crime in the first place, but also to provide those who have engaged in criminal activity with greater opportunities to lead productive lives.  The Federal Government can assist in breaking this cycle of crime through a comprehensive strategy that addresses a range of issues, including mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring. Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs.  These efforts will lower recidivism rates, ease incarcerated individuals’ reentry into the community, reduce future incarceration costs, and promote positive social and economic outcomes.

I am not going to get too excited by this new Council until I see what kind of "recommendations for evidence-based programmatic and other reforms" appear in the various reports it is tasked to issue. But this order provides still more reason to believe that the Trump White House wants to (and wants to be able to claim) it is doing something productive in the arena of criminal justice reform.

Notably, President Barack Obama formally acted in a fairly similar manner via this Presidential Memorandum in late April 2016 discussing "Federal Interagency Reentry Council." That memorandum noted that "in 2011, the Attorney General formed the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to the rehabilitation and reintegration of individuals returning to their communities from prisons and jails" and said the 2016 memorandum was being issued to "ensure that the Federal Government continues the important work of this council and builds on its successes." This new Executive Order by Prez Trump formerly states that it revokes Prez Obama's 2016 memorandum, but in substance it looks quite similar.

March 8, 2018 in Collateral consequences, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, March 07, 2018

Another sad account of how US Bureau of Prisons administers compassionate release program

The Marshall Project and the New York Times have this lengthy new piece about the ugly administration of the federal compassionate release program by the US Bureau of Prisons. At the Marshall Project, the piece has this full headline summarizing its content: "Old, Sick and Dying in Shackles: 'Compassionate release' has bipartisan support as a way to reduce the federal prison population and save taxpayer money. New data shows that it’s rarely used." Here are excerpts:

Congress created compassionate release as a way to free certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer.  Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing, elderly inmates who pose little risk to public safety.  But despite urging from lawmakers of both parties, numerous advocacy groups and even the Bureau of Prisons’ own watchdog, prison officials use it only sparingly.

Officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times.  From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

Advocates for the program say the bureau, which oversees roughly 183,000 inmates, denies thousands of deserving applicants. About half of those who died after applying were convicted of nonviolent fraud or drug crimes. “It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said Senator Brian Schatz of Hawaii, a Democrat. “The Bureau of Prisons has the theoretical authority to do this, but they basically do none of it.”

Case files show that prison officials reject many prisoners’ applications on the grounds that they pose a risk to public safety or that their crime was too serious to justify early release. In 2013, an inspector general reported that nearly 60 percent of inmates were denied based on the severity of their offense or criminal history. The United States Sentencing Commission has said that such considerations are better left to judges — but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.

Late last month, Schatz introduced legislation — co-sponsored with Senators Mike Lee of Utah, a Republican, and Patrick Leahy of Vermont, a Democrat — that would let prisoners petition the courts directly if the bureau denies or delays their requests.

Many are turned down for not meeting medical requirements. [Kevin] Zeich, who was serving 27 years for dealing methamphetamine, requested compassionate release three times, but was repeatedly told he was not sick enough. On his fourth try, his daughter, Kimberly Heraldez, finally received a phone call in March 2016 saying her father would soon be on a plane, headed to her home in California. Early the next morning, she was awakened by another call. Her father had died....

Compassionate release dates back to an overhaul of federal sentencing laws in the 1980s. While abolishing federal parole, Congress supplied a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances. But a court could do so only if the Bureau of Prisons filed a motion on an inmate’s behalf. For years, the agency approved only prisoners who were near death or completely debilitated. While nonmedical releases were permitted, an inspector general report found in 2013, not a single one was approved over a six-year period.

The report said the program should be expanded beyond terminal illness cases and used more frequently as a low-risk way to reduce overcrowding and health care spending. The Bureau of Prisons widened the criteria to explicitly include inmates over 65 and those who are the sole possible caregiver for a family member.  Then Attorney General Eric H. Holder, Jr., promoted the changes as part of his “Smart on Crime” initiative to “use our limited resources to house those who pose the greatest threat.

”But the bureau, which is part of the Justice Department, has yet to fully embrace those changes. Of those inmates who have applied for nonmedical reasons, 2 percent (50 cases) have been approved since 2013, according to an analysis of federal prison data.  And although overall approval numbers increased slightly between 2013 and 2015, they have since fallen.

At a 2016 sentencing commission hearing, Bureau of Prisons officials said they believed the program should not be used to reduce overcrowding.  And even the principal deputy assistant to Holder, Jonathan Wroblewski, said the program was not an “appropriate vehicle for a broad reduction” in the prison population.  “Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,” he said.

After the hearing, the commission released new guidelines encouraging prison officials to determine only whether inmates fit the criteria for release — that is, if they are old enough, sick or disabled enough, or if they are the sole possible caregiver for someone on the outside. Whether the prisoner poses a risk to the public should be left to a judge to decide, the commission said.

Mark Inch, who was appointed director of the Bureau of Prisons by Attorney General Jeff Sessions last August, has made no public statements about the program. The bureau declined to make Inch available for an interview and did not respond to emailed questions.

As this article indicates, there are bills now pending in Congress that would in various ways address deficiencies in the current compassionate release mechanisms. This is on of many reasons I am hopeful (but not optimistic) that folks on both sides of the aisle in Congress will try hard in the coming weeks to get at least some form of prison reform legislation to Prez Trump's desk. A revised and expanded compassionate release mechanism could and should help hundreds, perhaps thousands, of federal prisoners, particularly those who have likely already served a very long time in federal prison and who pose little or no risk to public safety.

A few recent of many prior related posts:

March 7, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, February 25, 2018

What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings

This recent local article, headlined "Why Philly DA Krasner could let 180+ juvenile lifers out of prison early," reports on the impact the recently elected Philadelphia prosecutor is having local cases demanding resentencing in the wake of the Supreme Court's Eighth Amendment ruling in Miller. Here are the details:

Philadelphia has sentenced more teens to life in prison with no chance of parole than any other jurisdiction in the world — and that meant it had the largest number to resentence after the U.S. Supreme Court two years ago ruled that its 2012 ban on mandatory life-without-parole sentences for minors must be applied retroactively.

As of this week, 127 out of approximately 315 juvenile lifers from Philadelphia have been resentenced. For those whose cases are still in process, the election of District Attorney Larry Krasner appears to have immediately and dramatically changed the outlook.

It means new deals are already on the table for 17 who had rejected offers made under the previous District Attorney’s Office, which mostly stuck close to current state sentencing guidelines that set minimums at 35 years to life for first-degree murder and 30 to life for second-degree murder. The latest offers make all but two of the lifers eligible for parole right away; it would also keep them all on parole for life. Some set minimums as low as 21 years for first-degree murder.

As for the remaining resentencings, Krasner said he intends to consider each case individually. Rather than relying on the sentencing guidelines, he said he would look to the historical, national and international context that has made Pennsylvania second in the nation in imposing life-without-parole sentences. “We are being consistent as we do our duty, which is to consider all these unique factors in resentencing,” he said. “It’s worth bearing in mind that Pennsylvania is an extreme outlier in excessive sentencing, and the United States is an extreme outlier in excessive sentencing.”

What’s unclear, however, is whether a Philadelphia judge will sign off on those agreements. At a recent status hearing, Common Pleas Judge Kathryn Streeter-Lewis, who is in charge of approving agreements in juvenile-lifer cases, asked the district attorney to submit briefs defending the deals’ legality in light of precedent-setting rulings by Pennsylvania’s appellate courts in the case of Qu’eed Batts, an Easton man who was 14 when he participated in a gang-related execution. In his case, the court acknowledged each judge has discretion to craft individualized minimum sentences, but said “sentencing courts should be guided” by current state law. “I understand that there is a different administration,” she said, but added, “Some of these [offers] are very much below the guidelines the decision required. … I’m going to need some reasons.”

One such case involved Avery Talmadge, who’s been locked up 22 years and was offered a time-served deal that — in a departure from past practice for the District Attorney’s Office — contemplates whether the original conviction was even appropriate. “The case was a street fight that turned into a shooting,” Assistant District Attorney Chesley Lightsey told Streeter-Lewis. “The [DAO’s internal resentencing] committee believes this is closer to a third-degree, though it was a first-degree conviction.” She said he also had an excellent prison record, reflecting the Supreme Court’s underlying rationale that kids, while impulsive and immature, also have a great capacity for rehabilitation.

Bradley Bridge of the Defender Association, which represents many of the lifers, believes the new offers will withstand judicial scrutiny — and that of the public. Krasner, he said, “sees the dangers of overincarceration and has come up with a meaningful solution.  He has reevaluated offers and, consistent with the protection of the public, has recognized that new offers can take into account to a more significant degree the juvenile’s growth while in prison.”...

Krasner said offers he’s approved so far have included minimums ranging between 40 years and just under 20 years.  He declined to specify a floor for minimum sentences. “I see no arbitrary number. We are approaching this the way the Anglo-American court system has approached these for centuries: on a case-by-case basis.”

February 25, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, February 14, 2018

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

February 14, 2018 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

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

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

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

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

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

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

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

Tuesday, February 13, 2018

"Brain Development, Social Context and Justice Policy"

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

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

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

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

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

Monday, February 12, 2018

"Yes, Trump is embracing criminal justice reform"

The title of this post is the headline of this new opinion piece that struck me as notable for any number of reasons: the piece appears in the right-leaning Washington Examiner and is authored by well-known conservatives Ken Blackwell and Ken Cuccinelli.  The piece also ends with a call for Congress to catch up to states in the criminal justice reform arena.  Here are excerpts:

Throughout the last election cycle, there came fevered predictions from many commentators on the Left that, given candidate Donald Trump’s frank messaging about returning to "law and order" and confronting violent crime in American cities, criminal justice reform efforts were officially dead in the water.  Criminal justice reform appears “bleak in the age of Trump,” stated one article. “How Criminal Justice Reform Died,” intoned another.

Such fatalism was both misplaced and inaccurate. Misplaced, because the lion’s share of successful criminal justice reforms over the last ten years have advanced at the state and local levels, not in D.C.— mainly by southern red states. With oversight over roughly 90 percent of the country’s incarcerated population, the states will always be the primary mover of criminal justice policies, not the federal government.

But such predictions have now been proven inaccurate as well, given recent remarks made by now-President Trump about the need for federal prison reform....

Society is justified in expecting individuals to take ownership not just for their actions, but also for their reformation. This is hampered, however, when the weight of accumulated barriers to re-entry becomes a millstone. Research has been clear that getting a job upon release is among the most critical steps to reducing a person’s likelihood for recidivism. When President Trump and others say society has a “great interest” in helping ex-offenders get on the path of self-sufficiency, he’s speaking a well-established truism.

Fortunately, conservative states have long since begun helping ex-offenders land on their feet upon release. Chief among them: Texas, long known as a “tough on crime” stalwart. In 2007, state lawmakers passed a $241 million “justice reinvestment” package to increase capacity for substance abuse and mental health treatment and expand probation and parole services, as well as community-based diversion programs. This avoided the immediate need for $2.1 billion in spending just to meet their expected needs for new prison capacity.

More recently, Texas has passed indemnity laws to insulate employers and landlords from liability when they extend a job or lease to ex-offenders.  This makes it less likely that a criminal record will be an insuperable barrier to work or finding a place to live. Communities in Texas have been getting safer at the same time.  Crime rates have fallen by 31 percent, while incarceration rates have fallen by more than 20 percent. Eight prisons have been shuttered even as Texas’ population has soared, saving millions in annual operating costs.

In 2012, Georgia began investing in efforts aimed at reducing recidivism, including an expansion of in-prison educational resources.  They’ve since reduced their prison population and nearly eliminated its backlog of inmates awaiting transfer, all the while reducing crime by 8 percent and saving $25 million.  A large reform package passed in Louisiana last year has similar aims of steering less serious offenders away from incarceration and into more effective community-based programs. South Carolina, Utah, Alaska, Kentucky, and others have passed comprehensive reforms, as well.

As we mentioned above, the states are the natural gatekeepers for criminal justice reform.  But Congress has shortcomings within its own prison system to address, and is quickly running out of excuses for doing so.  President Trump, whom so many on the Left falsely assumed would spell the end of reform, has instead sounded a clarion call to advance it. He was right for doing so, as many conservative states have proved, and it's time Congress took up that challenge as well.

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Saturday, February 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Thursday, February 08, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, February 07, 2018

Two notable and timely commentaries on prison reform

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, January 31, 2018

"Focused Deterrence Strategies and Crime Control"

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

Research Summary

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

Policy Implications

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

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

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

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

Tuesday, January 30, 2018

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

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

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

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

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

Some (of many) prior posts on sentencing finality:

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

Sunday, January 21, 2018

"Sentencing in Time"

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

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

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

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

Monday, January 08, 2018

"Mass Incarceration and the War on Drugs"

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

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

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

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

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 07, 2018

Candid confession of error on mandatory minimums from former Idaho Attorney General and Chief Justice

This recent op-ed from a local newspaper, headlined "Why warehouse low-risk drug offenders?," caught my attention primarily based on its author and its very first sentence.  The author is Jim Jones, and here is his bio from the piece: "Jim Jones, an Idaho native, was elected as Idaho Attorney General in 1982 and served two elected terms.  He was elected to the Idaho Supreme Court in 2004 and re-elected in 2010.  Jones served as Chief Justice from August 2015 until his retirement from the Supreme Court in January."  And here is how his commentary starts and ends:

I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.  Most observers have come to realize that long mandatory sentences are not appropriate for every offender.  Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.  And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders.  In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program.  The legislation had broad-based support and holds out great promise for success....

Having observed the judicial system from the inside for 12 years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble.  Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control.  That is how justice is served.  It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation.  Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity.  The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track.  These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together.  Mandatory sentences do not.  My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Reps. Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute.  Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing.  That legislation will come up again this year and people should urge their legislators to support it.

January 7, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, January 04, 2018

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

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

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

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

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

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

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

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

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

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

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

"The New Reformer DAs"

The title of this post is the title of this lengthy new American Prospect article.  The piece's lengthy subheadline highlights its themes: "As cities grow more progressive, a new breed of prosecutors are winning office and upending the era of lock-’em-up justice. They may hold the key to resisting Trump’s mania for mass incarceration." And here is an excerpt:

District attorneys “are in many ways the most important figures in the system,” says David Alan Sklansky, a Stanford law professor who studies DAs. “They are crucial gatekeepers between the police and the courts. They get to decide who gets charged and what they get charged with. They are the ones who recommend sentencing and negotiate plea agreements.  And since the vast majority of criminal convictions in this country are the result of plea agreements, they are the ones who are negotiating sentences.”

While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors — who have a tremendous amount of power and discretion within the system — have played.

John Pfaff, a Fordham law professor and author of the provocative book Locked In, argues that the role low-level drug charges have played in the rise in mass incarceration is overblown. The main drivers, he contends, are the prosecutors in the country’s DA offices. By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.

For decades, district attorney politics (almost all counties elect their chief prosecutors) have been relatively conservative affairs, animated by white suburban voters who want assurances of law and order — not by the people of color living in the city and on the receiving end of tough-on-crime policies.  Of the more than 2,400 elected prosecutors in the United States, 95 percent are white, according to the Reflective Democracy Campaign.  In 14 states, all elected prosecutors are white.  Just 1 percent of prosecutors are women of color.

January 4, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, January 02, 2018

"American Exceptionalism in Crime and Punishment"

9780190203542The title of this post is the title of this new book published by Oxford University Press. The book is an edited collection of essays curated by Kevin Reitz. Here is the publisher's description of the book:

Across the U.S., there was an explosion of severity in nearly every form of governmental response to crime from the 1970s through the 2000s.  This book examines the typically ignored forms punishment in America beyond incarceration and capital punishment to include probation and parole supervision rates-and revocation rates, an ever-growing list of economic penalties imposed on offenders, and a web of collateral consequences of conviction unimaginable just decades ago.  Across these domains, American punitiveness exceeds that in other developed democracies-where measurable, by factors of five-to-ten.  In some respects, such as rates of incarceration and (perhaps) correctional supervision, the U.S. is the world "leader."  Looking to Europe and other English-speaking countries, the book's contributors shed new light on America's outlier status, and examine its causes.  One causal theory examined in detail is that the U.S. has been exceptional not just in penal severity since the 1970s, but also in its high rates of high rates of homicide and other serious violent crimes.

With leading researchers from many fields and national perspectives, American Exceptionalism in Crime and Punishment shows that the largest problems of crime and justice cannot be brought into focus from the vantage point of any one jurisdiction.  Looking cross-nationally, the book addresses what it would take for America to rejoin the mainstream of the Western world in its uses of criminal penalties.

Kevin kindly sent me a copy of the book's Table of Contents and his introductory chapter for posting. That chapter can be downloaded below, following these passages from that chapter's introduction:

One goal of this book is to broaden the scope of American Exceptionalism in Crime and Punishment (AECP) inquiry to include sanctions beyond incarceration and the death penalty.  From what we know, it is reasonable to hypothesize that the United States imposes and administers probation, parole, economic sanctions, and collateral consequences of conviction with a heavier hand than other developed democracies.  Although the inquiries in this book are preliminary, they raise the possibility that AECP extends across many landscapes of criminal punishment — and beyond, to the widespread social exclusion and civil disabilities imposed on people with a conviction on their record.

In addition, the book insists that any discussion of AECP should focus on US crime rates along with US penal severity.  More often than not, American crime is discounted in the academic literature as having little or no causal influence on American criminal punishment.  This is a mistake for many reasons but is especially unfortunate because it truncates causation analyses that should reach back to gun ownership rates, income inequality, conditions in America’s most disadvantaged neighborhoods, and possibilities of joint or reciprocal causation in the production of US crime rates and punitive severity.

This chapter is divided into three segments.  First, it includes a brief tour of the conventional AECP subject areas of incarceration and the death penalty.  Second, it will introduce claims that a wider menu of sanction types should be included in AECP analyses. Third, it will speak to the importance of late twentieth-century crime rates to US punitive expansionism.

Download AECP Reitz Introduction for SSRN

January 2, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Monday, January 01, 2018

Prez Reagan's Secretary of State laments "The Failed War on Drugs"

There is nothing really all that notable about this recent New York Times op-ed, headlined "The Failed War on Drugs," save for its authors.  George Shultz, who served as Secretary of State in the Reagan Administration, penned the piece alon with Pedro Aspe, a former secretary of finance in Mexico.  Actually, the op-ed is also notable because it is has some shaky statements (like its suggestion Nancy Reagan tried to charge the modern US drug war), but it is still worth seeing how it makes its case for modern reform in the Americas:

The war on drugs in the United States has been a failure that has ruined lives, filled prisons and cost a fortune.  It started during the Nixon administration with the idea that, because drugs are bad for people, they should be difficult to obtain.  As a result, it became a war on supply.

As first lady during the crack epidemic, Nancy Reagan tried to change this approach in the 1980s.  But her “Just Say No” campaign to reduce demand received limited support. Over the objections of the supply-focused bureaucracy, she told a United Nations audience on Oct. 25, 1988: “If we cannot stem the American demand for drugs, then there will be little hope of preventing foreign drug producers from fulfilling that demand.  We will not get anywhere if we place a heavier burden of action on foreign governments than on America’s own mayors, judges and legislators. You see, the cocaine cartel does not begin in Medellín, Colombia. It begins in the streets of New York, Miami, Los Angeles and every American city where crack is bought and sold.”

Her warning was prescient, but not heeded.  Studies show that the United States has among the highest rates of drug use in the world.  But even as restricting supply has failed to curb abuse, aggressive policing has led to thousands of young drug users filling American prisons, where they learn how to become real criminals.

The prohibitions on drugs have also created perverse economic incentives that make combating drug producers and distributors extremely difficult.  The high black-market price for illegal drugs has generated huge profits for the groups that produce and sell them, income that is invested in buying state-of-the-art weapons, hiring gangs to defend their trade, paying off public officials and making drugs easily available to children, to get them addicted.

Drug gangs, armed with money and guns from the United States, are causing bloody mayhem in Mexico, El Salvador and other Central American countries. In Mexico alone, drug-related violence has resulted in over 100,000 deaths since 2006.  This violence is one of the reasons people leave these countries to come to the United States.

First the United States and Mexican governments must acknowledge the failure of this strategy.  Only then can we engage in rigorous and countrywide education campaigns to persuade people not to use drugs.  The current opioid crisis underlines the importance of curbing demand.  This approach, with sufficient resources and the right message, could have a major impact similar to the campaign to reduce tobacco use.

We should also decriminalize the small-scale possession of drugs for personal use, to end the flow of nonviolent drug addicts into the criminal justice system.  Several states have taken a step in this direction by decriminalizing possession of certain amounts of marijuana.  Mexico’s Supreme Court has also declared that individuals should have the right to grow and distribute marijuana for their personal use.  At the same time, we should continue to make it illegal to possess large quantities of drugs so that pushers can be prosecuted and some control over supply maintained.

Finally, we must create well-staffed and first-class treatment centers where people are willing to go without fear of being prosecuted and with the confidence that they will receive effective care.  The experience of Portugal suggests that younger people who use drugs but are not yet addicted can very often be turned around.  Even though it is difficult to get older addicted people off drugs, treatment programs can still offer them helpful services....

We have a crisis on our hands — and for the past half-century, we have been failing to solve it.  But there are alternatives.  Both the United States and Mexico need to look beyond the idea that drug abuse is simply a law-enforcement problem, solvable through arrests, prosecution and restrictions on supply.  We must together attack it with public health policies and education.  We still have time to persuade our young people not to ruin their lives.

January 1, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, December 21, 2017

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 18, 2017

Another look at trend to prosecute some opioid overdose deaths as homicides

This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths.  The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):

After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.

Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death.  The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.

Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death.  The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible.  It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.

Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents.  Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.

A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”

At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges.  An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.

The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s.  These state and federal laws hold drug distributors liable for overdose deaths.  Selling even small amounts can result in decades or even life in prison.

In some states, such laws were rarely enforced until recently.  Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....

The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry.  Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person.  He was sentenced to life in prison.  But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.

Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.

Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers.  They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....

A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015.  He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury.  The penalty grew to life in prison for defendants with prior felony drug convictions.

He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area.  Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.

Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides.  Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences.  One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity.  Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.

At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview.  Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor.  “He knew he was selling something extremely dangerous to a pregnant woman,” he says.  Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.

Mr. Bradbury offered him a deal.  If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years.  If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.

Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation.  Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing.  He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”

The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death).  As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death.  Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.

These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority.  This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.

Some prior related posts:

December 18, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, December 13, 2017

"Rethinking the Boundaries of 'Criminal Justice'"

The title of this post is the title of this new essay/book review authored by Benjamin Levin and now available via SSRN. Here is the abstract:

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. Specifically, I trace two themes in the book: (1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and (2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these discussions in turn shapes the face of the reform movement and the types of proposals and critiques that are treated as legitimate.

December 13, 2017 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

"Opioids: Treating an Illness, Ending a War"

The title of this post is the title of this new report from The Sentencing Project. Here is how the report's executive summary gets started:

More people died from opioid-related deaths in 2015 than in any previous year.  This record number quadrupled the level of such deaths in 1999. Unlike the heroin and crack crises of the past, the current opioid emergency has disproportionately affected white Americans — poor and rural, but also middle class or affluent and suburban.  This association has boosted support for preventative and treatment-based policy solutions. But the pace of the response has been slow, critical components of the solution — such as health insurance coverage expansion and improved access to medication-assisted treatment— face resistance, and there are growing efforts to revamp the failed and costly War on Drugs.

This report examines the sources of the opioid crisis, surveys health and justice policy responses at the federal and state levels, and draws on lessons from past drug crises to provide guidance on how to proceed. The War on Drugs did not play a major role in ebbing past cycles of drug use, as revealed by extensive research and the reflections of police chiefs. In 2014, the National Research Council concluded: "The best empirical evidence suggests that the successive iterations of the war on drugs — through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades."

Growing public awareness of the limited impact and devastating toll of the War on Drugs has encouraged many policymakers and criminal justice practitioners to begin its winding down.  The number of people imprisoned nationwide for a drug offense skyrocketed from 24,000 in 1980 to a peak of 369,000 in 2007.

It has since declined by nearly one-quarter, reaching approximately 287,000 people in the most recent count.  The lessons from past drug crises and the evidence base supporting a public health approach can guide policymakers as they seek an end to the current opioid crisis.

December 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, December 11, 2017

"Assessing Risk Assessment in Action"

The title of this post is the title of this interesting new paper available via SSRN authored by Megan Stevenson.  Though the paper addresses pretrial risk-assessment, I think folks interested in risk-assessment tools at sentencing should be interested in the findings.  Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.

December 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (8)

"Graduating Economic Sanctions According to Ability to Pay"

The title of this post is the the title of this new and timely article authored by Beth Colgan now available via SSRN. Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

December 11, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, December 08, 2017

"Invisible Punishment is Wrong – But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Conviction"

The title of this post is the title of this new piece now on SSRN authored by Christopher Bennett. Here is its abstract:

This article is concerned with the way in which criminal justice systems cause harms that go well beyond the ‘headline’ punishment announced at sentencing.  This is the phenomenon of ‘collateral consequences of criminal conviction’.  This phenomenon has been widely criticised in recent criminological literature.  However, the critics do not normally explore or defend the normative basis of their claims — as they need to if their arguments are to strike home against sceptics.

I argue that the normative basis of the critics’ position should be seen as involving important normative claims about the responsibilities that societies have towards those who break the law.  Some important strands of criticism, I claim, rest on the view that we have associative duties towards offenders (and their dependants and communities) as fellow participants in a collective democratic enterprise, duties that are violated when states impose, or allow, harms that go significantly beyond the sentence.

December 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Wednesday, December 06, 2017

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

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

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

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

Key Findings

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

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

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

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

Recommendations

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

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

Tuesday, December 05, 2017

"Remorse Bias"

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

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

December 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (23)

Friday, December 01, 2017

Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after "disgraceful verdict in the Kate Steinle case"?

Download (4)The provocative question in the title of this post is prompted by this news of a (surprising?) trial verdict in California state court in a high-profile prosecution and the immediate reactions thereto.  Here are the basics (with some emphasis added):

A jury handed a stunning acquittal on murder and manslaughter charges to a homeless undocumented immigrant whose arrest in the killing of Kate Steinle on a San Francisco Bay pier intensified a national debate over sanctuary laws.

In returning its verdict Thursday afternoon on the sixth day of deliberations, the Superior Court jury also pronounced Jose Ines Garcia Zarate not guilty of assault with a firearm, finding credence in defense attorneys’ argument that the shot that ricocheted off the concrete ground before piercing Steinle’s heart was an accident, with the gun discharging after the defendant stumbled upon it on the waterfront on July 1, 2015.

Garcia Zarate, a 45-year-old Mexican citizen who was released from County Jail before the killing despite a federal request that he be held for his sixth deportation, was convicted of a single lesser charge of being a felon in possession of a gun. He faces a sentence of 16 months, two years or three years in state prison. Garcia Zarate, who has already served well over two years in jail and gets credit for that time, will be sentenced at a date not yet determined.

The verdict set off a flurry of reactions.  Defense attorneys said the case had been overcharged, while U.S. Attorney General Jeff Sessions blamed the killing on San Francisco’s policy of refusing cooperation with immigration agents. Jim Steinle, who had been strolling on the pier with his daughter when she fell, told The Chronicle he was “saddened and shocked,” adding, “Justice was rendered, but it was not served.”...

President Trump, who has cited the case in his effort to build a border wall, said on Twitter, “A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.”

Defense attorney Francisco Ugarte suggested a different lesson, saying, “From day one, this case was used as a means to foment hate, to foment division, to foment a program of mass deportation ... and I believe today is a vindication for the rights of immigrants.”...

Garcia Zarate was charged from the beginning with murder, and prosecutors gave the jury the option of convicting him of first-degree murder, second-degree murder or involuntary manslaughter. Jurors rejected all three.

The defendant is not likely to be released again in the city. San Francisco officials have long said they will turn over undocumented immigrants to federal authorities if they obtain a warrant, and records show Garcia Zarate is being held on a U.S. Marshals Service warrant. U.S. Immigration and Customs Enforcement “will work to take custody of Mr. Garcia Zarate and ultimately remove him from the country,” Tom Homan, the agency’s deputy director, said in a statement.

Steinle, 32, had been walking with her arm around her father on Pier 14 when she was struck in the back by a single bullet. The round had skipped off the concrete ground after being fired from a pistol that had been stolen, four days earlier, from the nearby parked car of a federal ranger. Prosecutors told the jury that Garcia Zarate brought the gun to the pier that day to do harm, aimed it toward Steinle and pulled the trigger. Assistant District Attorney Diana Garcia spent much of the trial seeking to prove the pistol that killed Steinle couldn’t have fired without a firm pull of the trigger, while establishing that Garcia Zarate tossed the weapon into the bay before fleeing the scene.

Alex Bastian, a spokesman for the district attorney’s office, said Thursday that prosecutors had found sufficient evidence for the charges at every step of the case. “The verdict that came in today was not the one we were hoping for, but I think it’s unequivocal that both sides gave it their all,” Bastian said. “This really is about the Steinle family. They’ve shown incredible resolve during this whole process, and our hearts go out to them.”

Defense lawyers said the shooting was an accident that happened when Garcia Zarate, who had a history of nonviolent drug crimes, found the gun wrapped in a T-shirt or cloth under his seat on the pier just seconds before it discharged in his hands. Lead attorney Matt Gonzalez said his client had never handled a gun and was scared by the noise, prompting him to fling the weapon into the bay, where a diver fished it out a day later....

During the monthlong trial, jurors watched video from Garcia Zarate’s four-hour police interrogation, in which he offered varying statements about his actions on the pier. At one point he said he had aimed at a “sea animal,” and at another point, he said the gun had been under a rag that lay on the ground near the waterfront, and that it fired when he stepped on it. Gonzalez said it was clear in the video that Garcia Zarate — who has spent much of his adult life behind bars, was living on the street before the shooting, and has a second-grade education — did not fully understand what the officers were asking him through an officer’s Spanish translation.

What primarily prompts the question in the title of this post is the possibility that the current federal administration might view the California state court acquittal of Garcia Zarate in terms comparable to the California state court acquittal of Los Angeles police officers for their beating of motorist Rodney King. (These verdicts, as well as OJ Simpson's acquittal, lead me to think Californians at least sometimes take "beyond a reasonable doubt" quite seriously.)  The outrage over that state court acquittal surely played a significant role in the decision by federal authorities to pursue federal charges against the LA officers.  Perhaps similar outrage (at least from Prez Trump) over this state court acquittal will have federal authorities thinking the same way. (And, as criminal procedure gurus know, the dual sovereignty doctrine means there is no Double Jeopardy limit on the feds pursuing parallel charges in this case.)

I highlighted the limited severity of the sentence that Garcia Zarate now faces in state court to highlight another reason why federal authorities might be inclined to take up this case. Even if the federal prosecutors were only able secure a federal conviction for felon in possession, that charge alone in federal court would carry a sentence of at least up to 10 years and might actually have a mandatory minimum sentence of 15 years if Zarate's criminal history made him subject to the Armed Career Criminal Act (ACCA).  And, of course, the feds could and would get their usual two bites at the apple if they also charged various homicide offenses: a jury conviction of homicide charges would immediately raise the sentencing stakes, but even a jury acquittal would not preclude prosecutors from arguing to the judge that Steinle's death was critical "relevant conduct" at sentencing that should drive up his guideline range.

Last but not least, as I was typing up these thoughts, I saw this new FoxNews report headlined "DOJ weighing federal charges in Kate Steinle murder case, after not guilty verdict." Here is a snippet:

Justice Department spokeswoman Sarah Isgur Flores acknowledged Friday that the DOJ is looking at federal charges.  She suggested a possible charge could be felony re-entry or a charge pertaining to a violation of supervised release.  “We’re looking at every option and we will prosecute this to the fullest extent of the law because these cases are tragic and entirely preventable,” Flores said on “Fox & Friends” Friday.

If DOJ is really serious about "prosecut[ing] this to the fullest extent of the law," it seems to me that there are many more charges available beyond just immigration offenses (although those offenses, too, could be used to imprison Zarate for decades).

December 1, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18)

Thursday, November 30, 2017

"Finality and the Capital/Non-Capital Punishment Divide"

The title of this post is the title of this new paper authored by Carissa Byrne Hessick now available via SSRN. Here is its abstract:

This book chapter examines the role that concerns about finality have played in both capital cases and juvenile life-without-parole sentencing cases.  It will describe how finality has shaped the Supreme Court’s death penalty cases, as well as the role it has played in recent juvenile life-without-parole cases.  It will then offer some tentative thoughts on whether the non-capital finality concerns — specifically, the perceived need for post-sentencing assessments — should be extended to capital defendants and how post-sentencing assessments might inform the ongoing debate over the death penalty abolition in the United States.

November 30, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)