Sunday, June 18, 2017

Could jail be "the answer" for drug addicts?

The question in the title of this post is prompted by this New York Times opinion piece headlined "Addicts Need Help. Jails Could Have the Answer." This piece is authored by Sam Quinones, the journalist and author of the widely praised "Dreamland: The True Tale of America’s Opiate Epidemic." Here is how the lengthy piece gets started and its final line:

Not long ago, I visited a Narcotics Anonymous meeting where men with tattoos and short-cropped hair sat in a circle and talked out their errors. One had lived under an overpass, pimping his girlfriend’s daughter for cash to buy heroin. As the thought brought him to tears, his neighbor patted his shoulder. Others owned to stealing from grandparents, to losing jobs and children. Soon, most in the room — men with years of street addiction behind them — were wiping their eyes.

What made the meeting remarkable, however, was not the stories, but where it was taking place. Unit 104 is a 70-man pod in Kenton County Detention Center in northern Kentucky, across the Ohio River from Cincinnati. The unit, and an equivalent one for women, is part of a new approach to jail made necessary by our nationwide epidemic of opiate addiction. Drug overdoses are now the leading cause of death among Americans under 50.

As the country has awakened to that epidemic, a new mantra has emerged: “We can’t arrest our way out of this,” accompanied by calls for more drug-addiction treatment. Yet the opiate epidemic has swamped our treatment-center infrastructure. Only one in 10 addicts get the treatment they need, according to a 2016 surgeon general’s report. New centers are costly to build, politically difficult to find real estate for and beyond the means of most uninsured street addicts, anyway.

So where can we quickly find cheap new capacity for drug treatment accessible to the street addict? Jail is one place few have thought to look.

Jails typically house inmates awaiting trial or serving up to a year for a misdemeanor crime. Many inmates are drug addicts. They vegetate for months, trading crime stories in an atmosphere of boredom and brutality. Any attempt at treatment is usually limited to a weekly visit by a pastor or an Alcoholics Anonymous volunteer. When inmates are released, they’re in the clothes they came in with, regardless of the weather, and have no assistance to re-enter the real world. This kind of jail has always been accepted as an unavoidable fixed cost of government.

But the sheer dimensions of the opiate-addiction epidemic are forcing new ideas. One of them, now being tried in Kentucky, is jail not as a cost but as an investment in recovery. Jails as full-time rehab centers — from lights on to lights out. Jailing addicts is anathema to treatment advocates. However, as as any parent of an addict can tell you, opiates are mind-controlling beasts. A kid who complained about the least little household chore while sober will, as an addict, walk through five miles of snow, endure any hardship or humiliation, to get his dope.

Waiting for an addict to reach rock bottom and make a rational choice to seek treatment sounds nice in theory. But it ignores the nature of the drugs in question, while also assuming a private treatment bed is miraculously available at the moment the addict, who is usually without insurance, is willing and financially able to occupy it. The reality is that, unlike with other drugs, with opiates rock bottom is often death. (Drug overdose deaths last year most likely exceeded 59,000, the most ever in the United States, The Times found in an analysis of preliminary data this month, up about 19 percent over 2015.)

Jail can be a necessary, maybe the only, lever with which to encourage or force an addict who has been locked up to seek treatment before it’s too late. “People don’t go to treatment because they see the light,” said Kevin Pangburn, director of Substance Abuse Services for the Kentucky Department of Corrections. “They go to treatment because they feel the heat.”

Jail may in fact be the best place to initiate addict recovery. It’s in jail where addicts first come face-to-face with the criminal-justice system, long before they commit crimes that warrant a prison sentence. Once in custody and detoxed of the dope that has controlled their decisions, it’s in jail where addicts more clearly behold the wreckage of their lives. And it is at that moment of clarity and contrition when they are typically plunged into a jailhouse of extortion, violence and tedium....

Amid this national epidemic of opiate addiction, rethinking jail, as Kentucky has, as a place of sanctuary and recovery for a population that has lost hope, might not just be advisable; it may be indispensable.

June 18, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Friday, June 16, 2017

You be the juvenile sentencing judge: what sentence for teen guilty of involuntary manslaughter for encouraging suicide?

A high-profile state (bench) trial culminated this morning in a notable involuntary manslaughter conviction in the so-called in texting suicide case.  This Boston Globe article provides the basic details to set up the question in the title of this post:

Michelle Carter, who repeatedly urged her boyfriend to kill himself, was found guilty of involuntary manslaughter Friday by a juvenile court judge, ending an extraordinary trial that explored a virtual relationship between teenagers that ended in a suicide.

Judge Lawrence Moniz delivered his verdict after deliberating for two days in the jury-waived trial in Bristol Juvenile Court where Carter [who was 17 at the time of the offense] was being tried as a youthful offender.  The trial riveted lawyers and the public alike as it delved into the painful interior lives of two teenagers who called themselves boyfriend and girlfriend though they had met in person only a few times....

Bristol prosecutors alleged Carter should still be held accountable for the death of Conrad Roy III even though she was not present when the 18-year-old with prior suicide attempts filled his truck with carbon monoxide on July 12, 2014.  Carter and Roy spoke for 47 minutes as he parked in the parking lot of a Kmart in Fairhaven.  When he told he was too scared and had left the truck, she ordered him to return, according to testimony at her trial. “Get back in,” she allegedly said.

Roy left a suicide note addressed to Carter that was made public during her trial.

Speaking from the bench, Moniz said that he concluded Carter was guilty of involuntary manslaughter, in part, for ordering Roy back into the truck in what she knew was a toxic environment where it would take him 15 minutes to die — and failed to notify anyone as required under Massachusetts law.  “Miss Carter had reason to know that Mr. Roy had followed her instruction and placed himself in the toxic environment of that truck,” Moniz said.  “Knowing that Mr. Roy is in the truck, knowing the condition of the truck. Knowing, or at least having the state of mind that 15 minutes must pass, Miss Carter took no actions … She called no one.  She did not issue a simple additional instruction: Get out of the truck.”

Moniz also said the case was not legally novel since 200 years ago, a state prison inmate was prosecuted for convincing a man facing the death sentence to hang himself in his cell six hours before he was to be executed.  Moniz also noted that Roy had a long and troubled psychiatric history that included multiple suicide attempts — but each time he stopped and sought out help from his family and friends.

Moniz set sentencing for Aug. 3.  She faces up to 20 years in prison if given the maximum sentence for involuntary manslaughter.

I would be shocking if the judge here decided to impose a sentence anywhere near the applicable 20-year max. I am inclined to guess a prison sentence in the range of a year or two will be what the juvenile judge here will be considering. But I have not followed this case and the evidence closely, so I am really judge guessing here based on the nature of the crime and the offender. And I am interested to hear if others have more informed (or uninformed) views on what a fair and effective sentences in this case would look like.

June 16, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (19)

Tuesday, June 13, 2017

"Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform"

The title of this post is the title of this paper authored by Keith Hylton recently posted to SSRN. Here is its abstract:

This essay sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform.  Specifically, what offenses should be subjected to criminal punishment, and how should we punish?  Should we use prison sentences or fines, and where should we use them?  Should some conduct be left to a form of market punishment through private lawsuits?  Should fines be used to fund the criminal justice system?

The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement.  The framework of this paper is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment. 

June 13, 2017 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, June 09, 2017

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 08, 2017

"Neither Justice Nor Treatment: Drug Courts in the United States"

PhrThe title of this post is the title of this notable new report issued by the group Physicians for Human Rights. Here is an excerpts from the report's executive summary:

U.S. drug courts [are] specialized courts within the criminal justice system set up to provide alternative sentencing options — treatment instead of jail or prison time — for people charged with criminal behavior linked to drug possession, sale, or addiction.  The first courts were opened in 1989 to ease dockets and jails that were overflowing as a result of strict federal and state laws passed in the 1980s in an attempt to reduce drug supply and consumption.

Almost three decades later, there are more than 3,100 drug courts operating in the United States.  But while the courts’ proponents say they reduce recidivism for people with substance use disorders, critics say the system abuses due process, often mandates treatment for people who don’t actually need it — people without drug dependence — and fails to provide quality care to many who do.

Physicians for Human Rights (PHR) assessed the availability and quality of substance use disorder treatment through drug courts in three states — Florida, New Hampshire, and New York, chosen for the diversity of their drug court and health system approaches — and found major obstacles to quality evidence-based treatment for drug court participants in all three states.  Overall, PHR found that drug courts largely failed at providing treatment to those who truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care.  In many cases, court officials with no medical background mandated inappropriate treatment not rooted in the evidence base, or mandated treatment for people who didn’t need it.  In all cases, the functioning and mandate of the drug courts posed significant human rights concerns.

At the most basic level, PHR found that access to quality treatment was hampered by the inherent tension between a punitive criminal justice logic and therapeutic concern for drug court participants as patients.  In fact, despite the stated intention of drug courts to treat people who use drugs as ill rather Executive Summary than deviant, drug court participants were often punished for relapsing, missing therapy appointments, or otherwise failing to follow court rules.

One key concern motivating this research was whether drug courts were able to appropriately diagnose and facilitate treatment for people with substance use disorders who are in conflict with the law.  We found that, in many cases, they were not.  Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was directly at odds with medical knowledge and recommendations.  The most egregious example of this was the refusal, delay, or curbing of medication-assisted treatment (MAT) (also known as substitution or replacement therapy) to people with opioid use disorders, despite evidence that treatment for such disorders in many cases requires long-term — sometimes permanent — medication.  Some drug courts also prevented participants from accessing or staying on medically prescribed treatment for anxiety, Attention Deficit Hyperactivity Disorder, and other chronic health problems.

Human rights concerns are thus particularly relevant for drug courts, as these courts blur the line between voluntary and coerced treatment, and compel participants to waive the right to confidentiality.  Furthermore, most drug courts operate with regulations that subject medical expertise and advice regarding treatment to prosecutorial oversight and potential veto, raising questions about a person’s ability to access impartial evidencebased care.  Even where courts did not actively violate human rights protections of their participants, the regulatory set-up constantly threatened such violations.

June 8, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Judge Jack Weinstein talks through general deterrence and gang activity in federal gun sentencing

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime.  He is either a gang member or on the verge of becoming one.  He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code.  By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history).  In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18.  Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor.  This court recommends that the Sentencing commission revisit the gang membership problem.

Download Lawrence - Judgment%2c Memo%2c and Order

June 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, June 06, 2017

"Kinds of Punishment"

The title of this post is the title of this essay by Douglas Husak now available via SSRN.  Here is the abstract:

Contemporary states execute, imprison, fine, place on probation, conditionally discharge, caution, and do a great deal more to the persons they convict.  What general principles govern how retributivists should choose between the foregoing responses to culpable wrongdoing — or select an altogether different type of sanction?  If my subsequent reasoning is sound, it is easy to understand why retributivists have tended to neglect this issue.  They have neglected it because they have little to contribute to its resolution.  In what follows, I will support this conclusion and discuss a few of the somewhat controversial positions on which it rests.  I hope to make some headway on this topic by defending what I call the deferential view about kinds of punishment (or deferential view for short).

June 6, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Friday, June 02, 2017

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, May 29, 2017

The Economist urges "Rethinking Prison"

20170527_cna400The current print edition of The Economist has a series of article on prison policies and practices. Here are links to the article in the series and their extended headlines:

"America’s prisons are failing. Here’s how to make them work: A lot is known about how to reform prisoners. Far too little is done."

"More women are being put behind bars. Fewer should be: Female convicts are less violent and more likely to have stolen to support children

"Too many prisons make bad people worse. There is a better way: The world can learn from how Norway treats its offenders"

Here is an excerpt from the last of these articles:

Reserving prison for the worst offenders has hefty benefits.  First, it saves money.  In America, for example, incarcerating a federal convict costs eight times as much as putting the same convict on probation.  Second, it avoids mixing minor offenders with more hardened criminals, who will teach them bad habits.  “The low-level guys don’t tend to rub off on the higher-level prisoners. It goes the other way,” says Ron Gordon of the Utah Commission on Criminal and Juvenile Justice, a state body.

Modern electronic tags are cheap and effective. In a recent study Rafael Di Tella of Harvard University and Ernesto Schargrodsky of Torcuato Di Tella University compared the effects of electronic tagging versus prison for alleged offenders in Buenos Aires.  Earlier research had failed to deal with the fact that criminals who are tagged are less likely to reoffend than the more dangerous ones who are locked up.  The authors found a way round this.  Alleged criminals in Argentina are assigned randomly to judges for pre-trial hearings. Liberal judges are reluctant to hold them in the country’s awful jails, so they often order them to be tagged.  So-called mano dura (tough hand) judges prefer to lock them up.  The researchers observed what happened to similar offenders under different regimes.  Only 13% of those who were tagged were later rearrested; for those sent to prison the figure was 22%.

May 29, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, May 24, 2017

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

May 24, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, May 23, 2017

"The Effects of Racial Profiling, Taste-Based Discrimination, and Enforcer Liability on Crime"

The title of this post is the title of this new paper by Murat Mungan now available via SSRN.  Here is the abstract:

The literature contains ambiguous findings as to whether statistical discrimination, e.g. in the form of racial profiling, causes a reduction in deterrence.  These analyses, however, assume that enforcers' incentives are exogenously fixed.  This article demonstrates that when the costs and benefits faced by officers in enforcing the law are endogenously determined, statistical discrimination as well as taste-based discrimination lead to an increase in criminal activity.  Moreover, the negative effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination.

This suggests, contrary to the impression created by the existing literature, that statistical discrimination is not only harmful, but, may be even more detrimental than taste-based discrimination.  Thus, for purposes of maximizing deterrence, the recent focus in empirical research on identifying taste-based discrimination as opposed to statistical discrimination may be misplaced.  A superior approach may be to identify whether any type of racial discrimination takes place in the enforcement of laws, and to provide enforcers with incentives to minimize the impact of their discriminatory behavior.

May 23, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6)

Saturday, May 20, 2017

"Proportional Mens Rea and the Future of Criminal Code Reform"

The title of this post is the title of this new paper authored by Michael Serota and available via SSRN.  Here is the abstract:

This Essay argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies.  I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course.

The Essay is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Essay.  Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark.  Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.

May 20, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, May 18, 2017

"Deterrence and the Optimal Use of Prison, Parole, and Probation"

The title of this post is the title of this new paper by A. Mitchell Polinsky and Paul Riskind now available via SSRN. Here is the abstract:

In this article we derive the sentence — choosing among the sanctions of prison, parole, and probation — that achieves a target level of deterrence at least cost.  Potential offenders discount the future disutility of sanctions and the state discounts the future costs of sanctions.  Prison has higher disutility and higher cost per unit time than parole and probation, but the cost of prison per unit of disutility can be lower or higher than the cost of parole and probation per unit of disutility.  The optimal order of sanctions depends on the relative discount rates of potential offenders and the state, and the optimal duration of sanctions depends on the relative costs per unit of disutility among the sanctions and on the target level of deterrence.

We focus on the case in which potential offenders discount the disutility of sanctions at a higher rate than the state discounts the costs of sanctions.  In this case, if prison is more cost-effective than parole and probation — that is, has a lower cost per unit of disutility — prison should be used exclusively.  If prison is less cost-effective than parole and probation, probation should be used if the deterrence target is low enough, and prison followed by parole should be used if the deterrence target is relatively high.  Notably, it may be optimal to employ a prison term even if prison is less cost-effective than parole and probation and even if prison is not needed to achieve the target level of deterrence, because of what we refer to as the front-loading advantage of imprisonment.

May 18, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Sunday, May 14, 2017

"Dismissals as Justice"

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

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, May 10, 2017

Highlighting that conservative voters say they support criminal justice reform efforts

Vikrant Reddy authored this National Review commentary discussing the results of a recent interesting poll (which I highlighted here) under the headlined "The Conservative Base Wants Criminal-Justice Reform."  Here are excerpts:

Last week, the Charles Koch Institute (CKI) polled several hundred conservative voters to assess whether they recognize criminal justice as an important issue currently facing the nation. While specific reasons for their interest are debatable, 81 percent of Trump voters polled described the issue as either “very important” or “somewhat important” — a definite consensus.

Ordinarily, polls that confirm the status quo are not interesting.  This poll, however, caught the attention of those who have been asking whether conservative attitudes towards criminal-justice policy may have changed since the November 2016 election.  It’s a fair question.

The new presidential administration has given mixed messages, sometimes using strong rhetoric about increasing criminal penalties, but other times speaking with thoughtfulness about expanding treatment for opioid addiction.  Some prominent administration figures, such as Vice President Mike Pence, have a history as reformers.  Others, such as Attorney General Jeff Sessions, have a history as skeptics.  The views of the president himself are unpredictable.

Furthermore, when asked if judges should have more freedom to assign punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” or “agreed.”  When asked about the practice of civil asset forfeiture, which allows law-enforcement agencies to seize an individual’s property without requiring that the individual be charged or convicted of a crime, 59 percent of Trump voters found common ground with their liberal counterparts, responding that that they “strongly disagreed” or “disagreed” with such policing practices....

People surprised by the results of the poll ought to focus on one important figure: Fifty-four percent of Trump voters said they knew someone who is or has been incarcerated. That may surprise progressives who accuse conservatives of being out of touch and aloof from criminal-justice realities, but it shouldn’t surprise anybody who works in the criminal-justice arena and regularly talks to conservatives about their views....

Increasingly, then, the Americans who experience criminal justice as a personal issue are rural conservatives. Consider the example of Oklahoma.  On the night that Trump won the presidency, voters also approved changes to the state criminal code that reclassified certain drug felonies as misdemeanors, effectively expressing the view that too many drug offenses in Oklahoma were being treated with needlessly long bouts of incarceration. Oklahomans appear to prefer better probation and parole that monitors drug offenders and provides them with treatment.  This referendum vote took place in a state in which every single county voted for Trump.  A higher percentage of people (65.3 percent) voted for Trump in Oklahoma, than in any state, except Wyoming and West Virginia. It’s hard to be “Trumpier” than Oklahoma.

Leadership matters in public policy, and for that reason, it would be good to see clear support for criminal-justice reform from the White House.  Conservative legislators and governors, however, do not need to wait for cues from the administration.  The conservative base is already providing them. They have wanted criminal justice reform for a decade, and their minds did not change because of one election.

Recent prior related post:

May 10, 2017 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, May 07, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Notable new Atlantic series "on efforts across the United States to move beyond the age of mass incarceration"

JusticeBUG_1As announced via this article a few day ago, headlined "Imagining the Presence of Justice," there is a notable new project from The Atlantic which aspires "to cover the evolution of criminal justice in America with a heightened focus on the different systems and approaches developing all over the nation." Here is more on how The Atlantic sets ups its plans followed by links to three early notable pieces in the series:

Over the past several decades, America has seen a startling divergence between crime and punishment.  While crime rates dropped steadily from the dramatic peaks of the 1990s, the nation’s incarceration rates continued just as steadily to grow.  And so, despite containing only 5 percent of the world’s population, the United States came to hold a quarter of the world’s prisoners.

We’ve covered this divergence extensively in the print and digital pages of The Atlantic, from Ta-Nehisi Coates’s landmark story on the rise of the carceral state and the devastation it wreaked on black families to Inimai Chettiar’s exploration of the many causes of the decline in crime.  Among the findings that emerge most clearly from this robust, sad literature is that the factors driving both aspects of the divergence — the fall in crime, the increasing spread of punishment — are highly complex.  Despite dawning awareness of the deep social and economic costs of mass incarceration, no one-size-fits-all solution exists to change this picture.  Rolling back mass incarceration while protecting public safety will require a legion of efforts in thousands of prosecutors’ offices, police departments, parole boards, and legislative chambers.  "What we have is not a system at all,” as Fordham University’s John Pfaff told The Atlantic's Matt Ford, "but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.”...

In collaboration with reporters across the country, we’ll highlight local initiatives that merit national attention, and talk with experts about where and how lessons from states and municipalities can be applied more broadly.  We’ll look at where the carceral state has spread beyond merely responding to crime, examine the time people spend behind bars without having been convicted, and explore how cities can depend on police to collect fines and fees from their poorest residents to make up for too little tax revenue.

The title of the project comes from Martin Luther King Jr., who included the phrase in his famous letter from Birmingham jail.  That context is worth understanding for the challenge the letter poses to us today, as America struggles to reconcile the need for public safety with the moral imperative of justice....  From his cell, King wrote the famous letter that would cleave the nation’s understanding of “law and order” right in half, arguing that the observance of an unjust law violates the moral order.  "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law,” he wrote.  He castigated "the white moderate, who is more devoted to ‘order' than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice."

Three (somewhat sentencing-related) piece from the series:

May 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, May 06, 2017

"Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Rachel Barkow and Mark Osler now available via SSRN. Here is the abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress.  We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice.  In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety.

These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking.  This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain.  A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

May 6, 2017 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (21)

Friday, May 05, 2017

"Mass Monitoring"

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

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

May 5, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (4)

Thursday, May 04, 2017

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

The title of this post is the title of this paper authored by Jordan Hyatt and Steven Chanenson recently posted to SSRN. Here is the abstract:

At-sentencing risk assessments are predictions of an individual’s statistically likely future criminal conduct.  These assessments can be derived from a number of methodologies ranging from unstructured clinical judgment to advanced statistical and actuarial processes.  Some assessments consider only correlates of criminal recidivism, while others also take into account criminogenic needs.  Assessments of this nature have long been used to classify defendants for treatment and supervision within prisons and on community supervision, but they have only relatively recently begun to be used — or considered for use — during the sentencing process.  This shift in application has raised substantial practical and policy challenges and questions.

This paper, supported by the U.S. Department of Justice’s Bureau of Justice Assistance, directly addresses these issues and provides information and examples from a range of jurisdictions, including some which have integrated at-sentencing risk assessment programs in place or are in the process of doing so.  Derived from a survey of judges, as well as a series of interviews with stakeholders from across the nation, opportunities for future research and planning to guide the cautious engagement with at-sentencing risk assessment are identified.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, May 03, 2017

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"

The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

May 3, 2017 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 01, 2017

Spotlighting again the use of risk-assessment computations at sentencing (under an inaccurate headline)

Adam Liptak has this new column discussing the Loomis risk-assessment sentencing case pending SCOTUS cert review, but the column bears the inaccurate headline "Sent to Prison by a Software Program’s Secret Algorithms."  As of this writing, software programs alone have not sent any persons to prison, not in the Wisconsin case before SCOTUS or any other that I know about.  Software may be making recommendations to sentencing decision-makers, and that certainly justifies scrutiny, but we have not quite yet reached the brave new world that this headline suggests.  That said, the headline did grab my attention, and here are parts of the article that follows:

[A] Wisconsin man, Eric L. Loomis, who was sentenced to six years in prison based in part on a private company’s proprietary software. Mr. Loomis says his right to due process was violated by a judge’s consideration of a report generated by the software’s secret algorithm, one Mr. Loomis was unable to inspect or challenge.

In March, in a signal that the justices were intrigued by Mr. Loomis’s case, they asked the federal government to file a friend-of-the-court brief offering its views on whether the court should hear his appeal.

The report in Mr. Loomis’s case was produced by a product called Compas, sold by Northpointe Inc. It included a series of bar charts that assessed the risk that Mr. Loomis would commit more crimes. The Compas report, a prosecutor told the trial judge, showed “a high risk of violence, high risk of recidivism, high pretrial risk.” The judge agreed, telling Mr. Loomis that “you’re identified, through the Compas assessment, as an individual who is a high risk to the community.”

The Wisconsin Supreme Court ruled against Mr. Loomis. The report added valuable information, it said, and Mr. Loomis would have gotten the same sentence based solely on the usual factors, including his crime — fleeing the police in a car — and his criminal history.

At the same time, the court seemed uneasy with using a secret algorithm to send a man to prison. Justice Ann Walsh Bradley, writing for the court, discussed, for instance, a report from ProPublica about Compas that concluded that black defendants in Broward County, Fla., “were far more likely than white defendants to be incorrectly judged to be at a higher rate of recidivism.”

Justice Bradley noted that Northpointe had disputed the analysis. Still, she wrote, “this study and others raise concerns regarding how a Compas assessment’s risk factors correlate with race.” In the end, though, Justice Bradley allowed sentencing judges to use Compas. They must take account of the algorithm’s limitations and the secrecy surrounding it, she wrote, but said the software could be helpful “in providing the sentencing court with as much information as possible in order to arrive at an individualized sentence.”

Justice Bradley made Compas’s role in sentencing sound like the consideration of race in a selective university’s holistic admissions program. It could be one factor among many, she wrote, but not the determinative one.

In urging the United States Supreme Court not to hear the case, Wisconsin’s attorney general, Brad D. Schimel, seemed to acknowledge that the questions in the case were substantial ones. But he said the justices should not move too fast. “The use of risk assessments by sentencing courts is a novel issue, which needs time for further percolation,” Mr. Schimel wrote.

He added that Mr. Loomis “was free to question the assessment and explain its possible flaws.” But it is a little hard to see how he could do that without access to the algorithm itself. The company that markets Compas says its formula is a trade secret. “The key to our product is the algorithms, and they’re proprietary,” one of its executives said last year. “We’ve created them, and we don’t release them because it’s certainly a core piece of our business.”

Compas and other products with similar algorithms play a role in many states’ criminal justice systems. “These proprietary techniques are used to set bail, determine sentences, and even contribute to determinations about guilt or innocence,” a report from the Electronic Privacy Information Center found [available here]. “Yet the inner workings of these tools are largely hidden from public view.”...

There are good reasons to use data to ensure uniformity in sentencing. It is less clear that uniformity must come at the price of secrecy, particularly when the justification for secrecy is the protection of a private company’s profits. The government can surely develop its own algorithms and allow defense lawyers to evaluate them. At Rensselaer last month, Chief Justice Roberts said that judges had work to do in an era of rapid change. “The impact of technology has been across the board,” he said, “and we haven’t yet really absorbed how it’s going to change the way we do business.” 

Some prior related posts on Loomis case:

May 1, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, April 30, 2017

"Purpose-Focused Sentencing: How Reforming Punishment Can Transform Policing"

The title of this post is the title of this essay authored by Jelani Jefferson Exum recently posted on SSRN. Here is the abstract:

Today’s discussions about police reform have focused on changing police training and procedures.  As accounts of deaths of African-Americans at the hands of police officers have played out in the news and social media, demands for racial justice in policing have become more prevalent.  To end what I have coined as “the Death Penalty on the Street,” there have been calls for diversity training, training on non-lethal force, and, of course, community policing.  While it is perfectly rational for the response to excessive police force to be a focus on changing policing methods, such reforms will only have limited success as long as attitudes about black criminality remain the same.  Though we would like to hold them to a higher standard, police officers are merely human, so they carry with them the same biases and prejudices that any of us can hold.  Studies have shown that, in general, Americans are -- regardless of our race -- biased against blacks, especially young black men.  African Americans are more likely seen as criminals, and most of us overestimate the amount of crime attributable to the black population.  Therefore, in order to truly address the problem of racial injustice in policing, we must address the racial biases held by our society that play out in our criminal justice system.  Though perhaps not the obvious place for this revolution to start, sentencing reform has the potential to change the face of the punishment in our country, thus transforming the (usually black) face of whom we see as deserving of punishment by the police and the courts.

This Essay proposes “purpose-focused sentencing” as a means of remedying the over-incarceration of blacks, thereby combatting attitudes about crime and black criminality, and in turn, affecting how police see and treat blacks.  The goal is to reduce the racial disparity in incarceration, not solely through an overall lessened reliance on prisons and jails, but also by assessing and identifying appropriate sentences to fulfill criminal justice purposes.  Once those purposes -- deterrence, rehabilitation, incapacitation, and retribution -- are identified and assessed, there will not be room to justify disparities in sentencing attributable only to the race of the defendant.  All sentences, regardless of the peculiarities of an individual defendant, must be tailored to a specific result, rather than imposed at the whim of a particular judge or in accordance with legislation that has no basis in an identified sentencing goal.  As a result, we will see prisons and jails being used much more exclusively (to the extent that incarceration is used at all) for violent, repeat felons, which statistics tell us are not where our racial disparities lie today.  When punishment is more closely aligned with what the offender has done, and what our goals of punishments are given that behavior, we can begin to combat the stereotype that the dangerous criminal is most likely black.

Once sentencing no longer feeds into the heightened public view of blacks as criminals, the spillover effect will be that the new wave of police officers will not see blacks this way either.  And if they do, society certainly will not view this biased police violence against blacks as reasonable.  This Essay offers a solution that will take years, if not generations, to implement; and it will perhaps take even longer for it to completely transform the face of policing.  However, the proposal is a long-term approach that will immediately begin to move criminal justice in the right direction and encourage honest conversations about what we are trying to do in our system and how our current methods of punishment are only perpetuating racial injustice.

April 30, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, April 28, 2017

"Rethinking Federal Diversion: The Rise of Specialized Criminal Courts"

The title of this post is the title of this notable new paper authored by Christine Scott-Hayward now available via SSRN. Here is the abstract:

Over the last five years, there has been a proliferation in the federal system of front-end specialized criminal courts. Most of these courts are drug courts, but there are also veterans courts, courts for youthful defendants, and new "alternative to incarceration" courts. Although these courts are often described as "diversion" courts, most of them do not offer true diversion, whereby a defendant does not receive a criminal conviction. They have received significant support from a variety of stakeholders, including former Attorney General Eric Holder.

This paper explores the origins and development of front-end federal specialized criminal courts, and situates them in the existing landscape of diversion and alternative to incarceration laws and programs, particularly those in the federal criminal justice system. It argues that their rapid expansion in such a short time is problematic for a variety of reasons.

First, it is not clear what are the goals of these courts. Second, the use and effectiveness of specialized criminal courts in general is complicated; research on drug and other specialized courts in both the state and federal systems shows mixed results on measures such as recidivism reduction, cost-savings, and treatment outcomes. In addition, there are significant procedural and other equity concerns with specialized criminal courts. Third, although some of these new federal front-end specialized criminal courts show high completion rates, none has been formally evaluated, and publicly available documents about them raise questions about the extent to which they conform to evidence-based practices and their compliance with federal sentencing law. This article discusses the future of federal diversion and alternatives to incarceration, and suggests some ways to ensure that existing and future specialized criminal courts can achieve their goals. It also explores some other reforms that may achieve these same goals.

April 28, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, April 26, 2017

"Penal Incapacitation: A Situationist Critique"

The title of this post is the title of this recent paper authored by Guyora Binder. The piece appears to have come out on SSRN earlier this year, but I just now came across it. Here is its abstract:

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence.

This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.

April 26, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Sunday, April 23, 2017

"I used to support legalizing all drugs. Then the opioid epidemic happened."

The title of this post is the headline of this lengthy Vox commentary authored by German Lopez.  I recommend the piece in full even though I take issue with some of its particulars.  Here are some extended excerpts:

In terms of overdoses, the opioid epidemic is deadlier than any other drug crisis in US history — more than crack, meth, and any other heroin epidemic. In total, more than 560,000 people in the US died to drug overdoses between 1999 and 2015 (the latest year of data available) — a death toll larger than the entire population of Atlanta. And while many of these deaths are now linked to illicit drugs like heroin and fentanyl, the source of the epidemic — what got people started on a chain to harder drugs — was opioid painkillers, and legal painkillers are still linked to most opioid overdose deaths.

This was exactly what anti-legalization activists have warned about: Companies got a hold of a dangerous, addictive product, marketed it irresponsibly, and lobbied for lax rules. The government’s regulatory response floundered. The government even worked with the drug companies in some cases — under the influence of lobbying, campaign donations, and drugmaker-funded advocacy groups. And people got addicted and died.

Looking at this crisis, it slowly but surely dawned on me: Maybe full legalization isn’t the right answer to the war on drugs. Maybe the US just can’t handle regulating these potentially deadly substances in a legal environment. Maybe some form of prohibition — albeit a less stringent kind than what we have today — is the way to go.

I should be clear: I am talking about the legalization of harder drugs, so none of this applies to marijuana legalization. While there are real concerns with pot dependence and people doing stupid things on weed, my perspective is that it’s such a relatively harmless drug, according to the best scientific evidence, that the government can afford to screw it up. Especially since the alternative is a prohibition regime that leads to hundreds of thousands of needless arrests in the US each year and fosters violence as traffickers fight over turf or settle other beefs related to the drug trade.

But with the harder drugs, there’s a lot of room to mess up — as the opioid epidemic demonstrates....

Consider the US statistics: In 2015, drug overdoses killed more than 52,000 people, and more than 33,000 of those deaths were linked to opioids. That’s much more than the number of people who died to homicides: nearly 18,000 in 2015, only some of which were linked to violence in the war on drugs. Based on these figures, the legal drug led to a crisis that is killing way more people than black market–related violence possibly could.

while it is true that there are other metrics for suffering under prohibition (such as arrests), the same also applies for the opioid epidemic: There are a lot of people suffering from addiction, along with their friends, family, and broader community, yet haven’t overdosed and may never die of an overdose.

So while it’s hard to draw a perfect comparison in terms of overall suffering, the opioid epidemic, at the very least, seems to be much deadlier than violence related to drug prohibition is in the US.

Still, it’s hard to deny that the current model of prohibition has serious costs. Just like lenient regulation through legalization is dangerous, so too is excessive regulation — via punishment — through prohibition. There’s really little argument that America has been excessive in its punishment: the harsh mandatory minimum sentences, the three-strikes laws that can get someone life for drugs, and the ridiculous probation and parole rules that can get someone thrown back into prison for little more than possession. Not only can these measures cause a lot of human misery, but they also seem to be totally ineffective for actually deterring drug use.

The research is clear on this point: Severity of punishment does little to nothing to deter crime. In particular, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

As drug policy experts emphasized in a piece I reported out in 2016, there’s a lot of room for the US to relax its severity of punishment before legalization. One possibility is essentially the Portuguese model: Drugs are decriminalized for personal use, so you can’t be punished with prison time merely for possessing or using illegal substances like cocaine and heroin. But the drugs remain illegal for big companies to produce and sell for profit — effectively stopping the kind of commercialization that’s spurred the tobacco, alcohol, and opioid epidemics....

This milder form of prohibition isn’t a perfect solution. I don’t think there is a perfect solution. As with many policy debates, this is really about picking between a bunch of unsatisfactory options. Faced with an excessively harsh criminal justice system and a legal industry that carelessly causes drug epidemics, I have come down somewhere in the middle of these two extremes.

As Keith Humphreys, a drug policy expert at Stanford University, once told me, “There's always choices. There is no framework available in which there's not harm somehow. We’ve got freedom, pleasure, health, crime, and public safety. You can push on one and two of those — maybe even three with different drugs — but you can’t get rid of all of them. You have to pay the piper somewhere.” After witnessing the opioid epidemic firsthand, I have learned this lesson all too well — and I am genuinely scared of how America would pay for full legalization.;

April 23, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Sunday, April 16, 2017

Reviewing the realities of a new sheriff in charge at the US Department of Justice

The Hill has this lengthy new article, headlined "Sweeping change at DOJ under Sessions," reviewing various ways in which the new Attorney General has set forth new policies and set a new tone for the work of the Department of Justice. Regular readers will find everything in the article familiar, but some of the commentary about DOJ changes are still new and notable. Here are excerpts:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation’s top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  “Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed,” he said.  “I don’t know if he is really going to be able to persuade the department to follow his lead on this.”

In March, Sessions asked the remaining U.S. attorneys appointed by former President Obama to resign.  While previous administrations took the same step, Whiting questioned whether Sessions would be able find 94 prosecutors who will back the DOJ’s new approach.  “He can order and it will have an effect, but how far this gets implemented and with what kind of energy I think is really an open question, and if they will be able to persuade the rank and file to return in a full-fledge way to those policies,” he said.

In a statement to The Hill, DOJ spokesman Ian Prior said Sessions and the Justice Department are focused on fighting violent crime and protecting the public. “When it comes to sanctuary cities, all we are requiring is that they, just like every other individual in the United States, follow Congress’ duly enacted laws,” he said. “If requiring individuals and entities to follow the law and combating violent crime are seen as dramatic reversals, then we fully support such a sea change.”

While the attorney general has acknowledged that overall crimes rates are at historic lows, he has warned that trend is about to reverse. Even if that’s true, Inimai Chettiar director of the Justice Program at the Brennan Center for Justice argued that arresting and incarcerating people is not the solution. “Mass incarceration is not contributing to mass crime declines, but it doesn’t appear Jeff Sessions knows that,” she said.

Advocates of scaling back mandatory minimums for prison sentences are expecting to see a major shift in the way crimes are prosecuted. “To the extent the Obama administration was saying, let’s be a little more judicious in the use of mandatory minimums, I think Sessions plans to put his foot on the gas and apply them anywhere and everywhere,” said Kevin Ring, vice president of Families Against Mandatory Minimums.

President Trump’s son-in-law and senior adviser Jared Kushner raised eyebrows late last month when he took a meeting with Sens. Chuck Grassley (R-Iowa), Dick Durbin (D-Ill.) and Mike Lee (R- Utah), the lead sponsors on the criminal justice reform bill that stalled in the last session of Congress.  While Sessions has never been a fan of efforts to reduce mandatory minimums, Chettiar called the meeting encouraging. “Kushner is supportive of criminal justice reform. … I think it’s possible there’s a strong advocate there,” she said.

Ring, however, isn’t holding his breath. “One day he’s on the Hill talking sentencing reform then next day he’s visiting the Middle East,” Ring said of Kushner. “He’s got two easy gigs — passing sentencing reform and bringing peace to the Middle East. Good luck with that.

Law enforcement groups that support Sessions, meanwhile, say the new attorney general is focused on the right things. “I think Sessions has brought a new focus to the core mission of the department, which is to make sure the nation is safe and secure in its law and make sure law enforcement operations are focused on the thing that matters most, preventing crime,” said Jonathan Thompson, executive director of the National Sheriffs’ Association.

Thompson said Sessions is taking a more holistic approach in preventing crime. “I think there’s a tendency to look at people who are incarcerated and say I really wish they weren’t there, but unfortunately they make personal choices,” he said. “The attorney general is saying you have to look at that end. You have a crime problem that could be growing and how do we respond to it? Obviously something worked.”

UPDATE: Over at Crime & Consequences, Bill Otis has this lengthy new post discussing at length everything that he thinks is wrong about the comments by Alex Whiting reprinted above near the start of the excerpt.  Everyone interested in the work of DOJ should check out Bill's post, and here is how it concludes:

Finally, I don't know who Prof. Whiting talks to at DOJ, but the career people I talk to are thrilled with Jeff Sessions' priorities, and are chomping at the bit -- not reluctant -- "to follow his lead on this."

If the sentencing "reform" people had a good case on the merits, why do they need to resort to this amount of deceit?

April 16, 2017 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, April 07, 2017

"Who are the Punishers?"

The title of this post is the title of this intriguing new paper authored by Raff Donelson now available via SSRN. Here is the abstract:

The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them.  This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments.  The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials.  Under the framework presented in this Article, the class of potential punishers should be much wider.  Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.

April 7, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, April 04, 2017

"Criminal Employment Law"

The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.

This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system.  But private employers act without constitutional or significant structural checks.  Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.  Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market.  And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Monday, April 03, 2017

Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial

As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison."   Here is more:

Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.

She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.

Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.

After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.

Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.

The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Civilizing Criminal Settlements"

The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:

Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways.  The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.  This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor.  By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution.  Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously.  Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.

This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.  It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties.  In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation.  Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations.  The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.

April 1, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, March 28, 2017

Federal prosecutors seeking 3-year prison terms for "Bridgegate" defendants

I have covered in a few prior posts the convictions and coming sentencing of Gov Chris Christie staffers who are now felons thanks to federal prosecutions in the wake of the so-called Briedgegate scandal.  This local article, headlined "Bridgegate: Feds seek 'meaningful' jail term for former Christie allies," reports on final filings as sentencing approaches:

Calling their crimes a "stunningly brazen and vindictive abuse of power," federal prosecutors urged a federal judge to sentence both Bill Baroni and Bridget Kelly, convicted last year in the Bridgegate scandal, to a "meaningful term of imprisonment."

But in a pre-sentence report filed Monday, the U.S. Attorney's office did not ask for the maximum term. Instead, they recommended a sentence for the two Bridgegate defendants to be "at the bottom or modestly below" the federal sentencing guidelines of between 37 to 46 months in prison.

Such a term, though, would still stand in stark sentence to the year of home confinement handed down earlier this month to David Samson, the former chairman of the Port Authority of New York and New Jersey, after he pleaded guilty to bribery in connection with the shakedown of United Airlines so he could get a more convenient flight to his country estate in South Carolina. Facing two years in jail, the former Port Authority chairman, David Samson, instead was sentenced to probation after attorneys, calling his actions a one-time lapse in judgment, asked the court to grant leniency for the ailing 77-year-old attorney, who was Christie's mentor.

Indirectly referencing the Samson ruling, the prosecutors said a sentence that could be perceived as a mere "slap on the wrist" would "send precisely the wrong message to the public, as well as to thousands and thousands of New Jersey public officials, elected and appointed."

Defense attorneys challenged the sentencing guidelines, which call for far longer prison terms than the typical corruption case, in large part because the Bridgegate convictions included charges of civil rights violations. "This sentencing is not about how much hyperbole the government can use in its sentencing brief," said Baroni's attorneys in a brief, also filed Monday. "Indeed, Bill accepts full responsibility for his actions and failure to act at a critically significant moment in his life. He will bear that cross forever, no matter (how) the court impose(s) sentence." But they asked the judge as well to "exercise the most leniency possible when tailoring a sentence based upon Bill's dedication to the altruistic service of others."

Both Baroni and Kelly are seeking a probationary sentences. "A non-custodial sentence including probation, home confinement and community service as punishment, is an appropriate sentence for Bridget Kelly," said her attorney, Michael Critchley.

Prosecutors said the defense challenges should be denied. "Defendants like Baroni and Kelly, who have had the opportunity to do good work and build relationships with influential people, are not entitled to a get-out-of-jail-free card, particularly for serious crimes," they wrote.

The two former members of Gov. Chris Christie's inner circle are scheduled to be sentenced on Wednesday....

"Baroni and Kelly took all of these actions for the pettiest of reasons: to punish a local mayor and send him a nasty political message because he did not endorse Gov. Christie for re-election," wrote assistant U.S. attorneys Vikas Khanna, Lee Cortes Jr. and David Feder in a 55-page brief. "Nothing about Baroni's and Kelly's actions or motivations in committing these crimes mitigates their conduct." At the same time, they cited the "complete lack of remorse for their wrongful conduct."

The self-admitted architect of the scheme, David Wildstein, a former political blogger and friend of the governor who landed a patronage job at the Port Authority, testified against Baroni and Kelly. He pleaded guilty and is awaiting sentencing.

Prior related posts:

March 28, 2017 in Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, March 25, 2017

"End the death penalty for mentally ill criminals"

The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:

Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.

The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.

As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents.  And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.

Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....

Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.

The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....

The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments.  This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.

March 25, 2017 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Thursday, March 16, 2017

"Technological Incarceration and the End of the Prison Crisis"

The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf.  Here is the abstract:

The United States imprisons more of its people than any nation on Earth, and by a considerable margin.  Criminals attract little empathy and have no political capital.  Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens.  No principled, wide-ranging solution has yet been advanced, however.  To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems.  First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined.  Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers.  Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States.  We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons.  As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly.  If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

March 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (2)

Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20)

Noting how prisons serve as a kind of public works program in rural areas

This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:

While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system.  As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663.  Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.

The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas.  Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.

People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers.  Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....

Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up.  My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....

It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.

March 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Sunday, March 12, 2017

You be the federal sentencing judge: how long a prison term for convicted "Bridgegate" defendants?

22266537-mmmainAs I have often said in this space, I find I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify throwing the book at any and all serious white-collar offenders.  

Against that backdrop, I am eager to hear various perspective on the upcoming federal sentencing of the two defendants discussed in this local New Jersey article headlined "What's at stake this week when Bridgegate defendants are sentenced." Here are the basics:

On paper, they could face up to 20 years in prison. Bill Baroni and Bridget Anne Kelly, once members of Gov. Chris Christie's inner circle who were convicted in November of conspiracy and fraud in connection with the Bridgegate scandal, are due to return to court Wednesday morning for sentencing.

While neither is expected to serve anywhere near the 20-year statutory maximum term under federal sentencing guidelines, the unusual nature of the charges in the case, including civil rights violations for interfering with the ability to travel, could have both looking at nearly four years in prison, say legal experts.

Baroni, 44, the Port Authority's former deputy executive director, and Kelly, also 44, a one-time deputy chief of staff to Gov. Chris Christie, were charged with helping orchestrate the shutdown of several local toll lanes at the George Washington Bridge in 2013 in a scheme of political retribution targeting the mayor of Fort Lee over his refusal to endorse the governor for re-election. After a seven-week trial, the two were found guilty.

Prosecutors, however, not only charged the two with conspiracy and fraud, but with violating the civil rights of those stuck in the massive traffic jams they created--which left Fort Lee frozen in gridlock for days. Those civil rights violations are now driving what could be an unusually harsh sentence, according to legal experts.

"Civil rights violations have always been treated severely by federal courts since historically they were used by the federal government to prosecute crimes that states were either unwilling or unable to prosecute," noted Robert Mintz, former deputy chief of the Organized Crime Strike Force of the U.S. Attorney's Office in New Jersey and a criminal defense attorney at McCarter & English.

The U.S. Attorney's office would not disclose the proposed sentencing range in Bridgegate case and attorneys for both Baroni and Kelly also declined comment, but the federal sentencing guidelines suggest both face upwards of 46 months, in large part due to the civil rights violations. U.S. District Judge Susan Wigenton, who presided over the Bridgegate trial, has sole discretion to set punishment.

While crimes carry statutory maximum penalties, federal judges for the most part follow set guidelines that outline a uniform sentencing policy for those convicted in the federal courts, so that individuals convicted of similar crimes generally serve the same sentence no matter where they were tried. "The guidelines are advisory only. But a lot of judges follow them very rigidly," observed Alan Ellis, a former president of the National Association of Criminal Defense Lawyers and a San Francisco attorney who specializes in sentencing and post-conviction matters.

Yet sometimes judges agree to significant departures from those guidelines. At sentencing last Monday, David Samson, the former Port Authority of New York and New Jersey chairman, faced up to 24 months in prison for bribery in connection with a shakedown of United Airlines. Instead, he walked out of court with just a year of house arrest.... Samson's guilty plea earned him a downward adjustment from the sentencing guidelines for his "acceptance of responsibility." A negotiated plea deal with the U.S. Attorney's office further limited the maximum term he faced.

"These two people went to trial," said Ellis of Baroni and Kelly. Those who go to trial are said to "pay rent on the courtroom," because they receive no downward adjustment at sentencing if they are found guilty....

For Baroni and Kelly, who wrote the now-infamous "time for traffic problems" message that served as a smoking gun to prosecutors, the civil rights violations will represent the most serious violations to be addressed at sentencing. "In this case, the facts are so unique that it doesn't fit the typical pattern of these type of violations so it is hard to predict how the court will factor in that violation," said Mintz. "In the end, the sentence that these defendants receive will likely turn more on how the judge views the criminal conspiracy--whether the conduct was a calculated scheme that truly endangered the public or was merely a misguided act of political retribution that went horribly awry."

Whatever the sentence, defense attorneys have already said the plan to appeal the case.

Prior related post:

March 12, 2017 in Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (19)

Friday, March 10, 2017

"Why Prison?: An Economic Critique"

The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:

This Article argues that we should not imprison people who commit crimes.  This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system.  Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.

Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses.  It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs.  The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently.  It concludes that there exist economically superior alternatives to prison available right now.  The alternatives are practicable.  They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.

This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.  Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective.  But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns.  That question is outside the ambit of this paper.  The alternative system can also be criticized on practicability grounds.  But upon close investigation, such criticisms lose much of their force.

March 10, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (10)

Thursday, March 09, 2017

"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"

2378_regThe title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:

Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.

The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.

In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.

March 9, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21)

Wednesday, March 08, 2017

"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"

The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts: 

[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans  —  94 percent  — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.

“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”

The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders  —  take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap  —  on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.

While Illinois lawmakers may be the most zealous employers of public registries  —  the state also maintains an online list of those convicted of making methamphetamine  —  the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.

While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.

“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”

St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”

Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.

Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...

Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”

March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Monday, March 06, 2017

"Rationing Criminal Justice"

The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas.  Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities.  Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions.  Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.

Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps.  As these tools highlight, scarcity often works not as a bug but as a design feature.  Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture.  But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 6, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (3)

Thursday, March 02, 2017

"The externalities problem is acute in criminal justice for two reasons."

The title of this post is a line from this interesting new essay by Richard Bierschbach, over at online publication Regblog produced by the University of Pennsylvania Law School.  This essay is actually part of a fifteen(!)-part series on "Regulating Police Use of Force," but Richard makes some sentencing-specific points in his essay.  Here are excerpts, with links from the original:

The externalities problem is acute in criminal justice for two reasons. First, we think of criminal justice as individual justice.  Actors thus tend to view each case as an isolated transaction to the exclusion of broader, long-term, and aggregate effects. Second, criminal justice, especially American criminal justice, is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. No one player has the responsibility, incentives, or information to take systemic harms into account. And given the politics of criminal justice, democratic processes do little to correct this dynamic.

Police and other law enforcement systematically overuse force in part because few mechanisms require them to consider the full social costs of doing so. The costs of arrests, for instance, are substantial: arrests are frightening and humiliating, use valuable resources, and burden arrestees with lost income, arrest records, and other harms. Yet few of these costs fall on the police.  So, too, for other coercive measures. Prosecutors and judges do not shoulder the full costs of pretrial detention, such as overcrowded jails, difficulties in mounting a defense, and personal and family trauma. Similarly, states pay for prisons, but local prosecutors’ decisions fill them. That “correctional free lunch” gives prosecutors little incentive to use prison judiciously, which helps explain why some counties dramatically overconsume it....

Cost-benefit analysis for sentencing and arrests. The U.S. Environmental Protection Agency, U.S. Securities and Exchange Commission, and other agencies have long had to defend their regulations in cost-justified terms. Why not hold sentencing and arrest guidelines to the same standard? The great virtue of cost-benefit analysis is that, if done rigorously, honestly, and transparently, it can surface and force consideration of all harms and gains—short- and long-term, concentrated and diffuse, and monetary and non-monetary (such as dignitary and distributive harms)—that a given policy option implicates. It is not hard to imagine how some draconian provisions of the federal sentencing guidelines or New York City’s stop-and-frisk policies might have come out differently, and wrought less social damage, if policymakers had subjected them to methodical cost-benefit testing that was open to robust public scrutiny and debate.

Such procedures help policymakers confront tough tradeoffs and encourage them to make more welfare enhancing decisions. As experience in states like Washington and Minnesota has shown, cost-benefit and other impact assessment procedures also provide politicians with a degree of political cover when making criminal justice policies. The broad consideration of costs also acts as a proxy for values and voices that get little traction in state legislative halls, helping to make criminal justice policies more representative of the entire population they serve....

Capping (and trading?) prison beds. Related to pricing are caps, which can also bring incentives back in line. In a number of contexts, such as arrests, caps might not be appropriate. But in other contexts, like prison, they could make sense. Just as a capping scheme limits the amount of clean air a coal plant can use in generating profits, so too could it limit the number of prison beds that local prosecutors can use in generating personal, political, and social gains.

A trio of criminal justice professors, Cheryl Jonson, John Eck, and Francis Cullen, have proposed how it might work.  States could set a cap on the number of people who could be sentenced to prison each year. They could then allocate prison beds to each county or locality based on some metric — population size, violent crime rates, or something else.  Localities could use those beds however they pleased, but once they hit their cap, they would have to pay the state for further imprisonments. The cap could be hard-and-fast, or it could be coupled with a trading system under which counties that do not use all of their beds could sell them to other counties, sell them back to the state, or roll them over for later use. Either way, the system would enhance accountability for criminal justice dollars and encourage cautious use of prison in ways the “correctional free lunch” does not.

Now, these sketches are just that. As University of Pennsylvania Law School Professor Stephanos Bibas and I discuss in a forthcoming article, serious issues would exist with each of these and related strategies. Even so, in states and localities across the country, variations on these themes — like cost-benefit analysis of sanctions in Washington, California’s Public Safety Realignment, or sentencing cost disclosures in Missouri — are increasingly appearing as policymakers confront the enormous toll of the carceral state. In this era of unprecedented openness to criminal justice experimentation, the time is ripe to move beyond our old transactional, fragmented, business-as-usual approach to criminal justice, and to see it for what it largely is: a morally laden and complex regulatory system, subject to many of the same failures and limitations that afflict other areas of regulation. That means we must think hard not only about how to do justice, but also about how to structure justice to administer it in the most socially-regarding way possible.

March 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, February 28, 2017

"Unusual Deference"

The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN.  Here is the abstract:

Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States.  What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices.  The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices.  This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory.  As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference.  Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey.  Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, February 25, 2017

"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"

The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:

Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.

“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....

But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...

Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up.  Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”

Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.”  For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform.  For fiscal conservatives, it’s about cutting rising corrections costs.”...

But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.

Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump.  “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.

Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation.  Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress.  “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”

Recent prior related post:

February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, February 21, 2017

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Tuesday, February 14, 2017

Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration

Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style."  Here are excerpts:

It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things.  But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration.  In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree.  The American Civil Liberties Union and the American Conservative Union Foundation agree.  Bernie Sanders and Newt Gingrich agree.

Here’s what they agree on:

• The United States went overboard on mass incarceration in the 1980s and 1990s.

• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.

• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.

• Jailing people is really, really expensive.

• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.

• There are alternatives to imprisonment that keep Americans safe.

(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)

Even all this agreement is no guarantee of progress in Washington.  President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator.  He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose.  But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote.  So the administration can be expected to be unhelpful, with Congress a question mark.

While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans.  So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states.  Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.

California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.

More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....

The cost of prisons was a huge issue.  In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”

Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.

That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”

“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”

At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden.  And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.)  Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....

The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature.  “You have a problem and we’re going to help you with your problem.”  Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.

The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.

Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail.  Thousands of people are sent back to prison each year for technical revocation of parole or probation.  As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....

The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities.  One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent.  Twenty years ago, a Republican in Georgia would have boasted about the opposite.

If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”

This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years.  The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.

I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders.  But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement.  And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.

February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Monday, February 13, 2017

Will Prez Trump and AG Sessions listen to law enforcement leaders with diverse views on crime and punishment?

LEL_report_cover-209x300The question in the title of this post is prompted by this New York Times article, headlined "Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step," discussing a new report issued by organization Law Enforcement Leaders to Reduce Crime and Incarceration. The NY Times piece provides this accounting of the report along with some diverse perspectives on how diverse law enforcement leaders look at and toward the Trump Administration:

Not surprisingly, President Trump’s approach to crime, which began to take shape in a series of moves last week, generated swift criticism from liberals and civil rights groups. But it also stirred dissent from another quarter: prominent police chiefs and prosecutors who fear that the new administration is out of step with evidence that public safety depends on building trust, increasing mental health and drug addiction treatment, and using alternatives to prosecution and incarceration.

“We need not use arrest, conviction and prison as the default response for every broken law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and David O. Brown, a former Dallas chief, wrote in a report released last week by a leading law enforcement group. “For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.”

The organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is made up of more than 175 police officials and prosecutors, including Charlie Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district attorney; and William J. Bratton, the former police chief in New York and Los Angeles. Other leading law enforcement groups have also called for an increase in mental health and drug treatment, a focus on the small number of violent offenders who commit the most crimes, training officers on the appropriate use of force, and retooling practices to reflect a growing body of evidence that common practices, such as jailing people before trial on minor offenses, can actually lead to an increase in crime. The group warned that “failing to direct these resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”

Mr. Trump has shifted the focus from civil rights to law and order, from reducing incarceration to increasing sentences, from goading the police to improve to protecting them from harm. Last week, he swore in a new attorney general, Jeff Sessions, who has said that the government has grown “soft on crime,” and helped block a bipartisan bill to reduce sentences. Mr. Sessions said that a recent uptick in crime in some major cities is a “dangerous, permanent trend,” a view that is not supported by federal crime data, which shows crime remains near historical lows. The president signed executive orders that repeatedly connected public safety to immigration violations, vowing to fight international crime cartels; to set up a task force to “comprehensively address illegal immigration, drug trafficking, and violent crime”; and to focus on preventing violence to peace officers.

Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said. Kim Ogg, the new district attorney in Houston, won office promising to make changes like dropping prosecution of low-level drug offenses, reducing the use of money bail and releasing videos of police shootings. Those priorities were much more aligned with the Obama administration than Trump’s, in whose pronouncements Obama-era buzzwords like deincarceration, constitutional policing and de-escalation — reducing the use of force during police encounters — have all but disappeared. Mr. Trump did tell a gathering of police chiefs this week: “As part of our commitment to safe communities, we will also work to address the mental health crisis. Prison should not be a substitute for treatment.”...

Some police chiefs said they are reserving judgment until there is more meat on the bones of the administration’s plans. “Hopefully, they are going to seek our practical advice,” said Edward A. Flynn, Milwaukee’s police chief, who also heads the legislative committee of the Major Cities Chiefs Association. “That to us is key. We don’t want any more policy bromides grounded in campaign promises. We want ideas grounded in practical wisdom about how to protect our cities.”

Still, a number of chiefs — and perhaps the vast majority of lower-ranking officers — say they are basking in the glow of Mr. Trump’s positive attention after feeling under siege during the Obama administration. “Law enforcement in general was painted with a very broad brush,” said Michael J. Bouchard, the sheriff of Oakland County, Mich. “The idea was that policing was broke, and I think that was a false dialogue.”

Unions agreed. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”

Law enforcement leaders responded more positively to Mr. Trump’s order to ratchet up the fight against organized crime cartels, which operate through intermediaries in even the smallest American cities through the sale of heroin, methamphetamine, and other drugs. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said the nation also needed to address its appetite for drugs: “We must do everything we can to stop the flow of drugs into our country, but doing so would not solve our substance abuse problem.”

The full 28-page report referenced here is titled "Fighting Crime and Strengthening Criminal Justice: An Agenda for the New Administration," and it is available at this link. An executive summary and press release provides these five bullet points describing the report's suggested priorities:

• Prioritizing fighting violent crime.

• Enact federal sentencing reform.

• Increasing mental health and drug treatment.

• Bolstering community policing.

• Expanding recidivism reduction programs.

February 13, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19)

Monday, February 06, 2017

"A Theory of Differential Punishment"

The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:

A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.

The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified.  We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.

February 6, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

Idaho judge includes celibacy for teen sex offender on intensive probation

As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.

The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.

Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.

The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”

The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.

But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.

Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.  “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.

“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”

I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.

February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)