Wednesday, February 14, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 13, 2018

"Brain Development, Social Context and Justice Policy"

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

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

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

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

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

Monday, February 12, 2018

"Yes, Trump is embracing criminal justice reform"

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

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

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

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

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

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

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

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

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

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Saturday, February 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Thursday, February 08, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, February 07, 2018

Two notable and timely commentaries on prison reform

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, January 31, 2018

"Focused Deterrence Strategies and Crime Control"

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

Research Summary

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

Policy Implications

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

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

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

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

Tuesday, January 30, 2018

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

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

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

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

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

Some (of many) prior posts on sentencing finality:

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

Sunday, January 21, 2018

"Sentencing in Time"

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

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

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

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

Monday, January 08, 2018

"Mass Incarceration and the War on Drugs"

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

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

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

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

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 07, 2018

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

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

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

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

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

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

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

Thursday, January 04, 2018

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

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

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

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

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

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

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

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

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

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

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

"The New Reformer DAs"

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

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

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

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

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

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

Tuesday, January 02, 2018

"American Exceptionalism in Crime and Punishment"

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

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

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

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

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

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

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

Download AECP Reitz Introduction for SSRN

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

Monday, January 01, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 21, 2017

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 18, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior related posts:

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

Wednesday, December 13, 2017

"Rethinking the Boundaries of 'Criminal Justice'"

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

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

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

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

"Opioids: Treating an Illness, Ending a War"

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

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

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

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

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

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

Monday, December 11, 2017

"Assessing Risk Assessment in Action"

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

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

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

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

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

"Graduating Economic Sanctions According to Ability to Pay"

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

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

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

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

Friday, December 08, 2017

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

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

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

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

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

Wednesday, December 06, 2017

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

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

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

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

Key Findings

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

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

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

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

Recommendations

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

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

Tuesday, December 05, 2017

"Remorse Bias"

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

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

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

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

Friday, December 01, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 30, 2017

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

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

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

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

Wednesday, November 29, 2017

"Disrupting the Cycle: Reimagining the Prosecutor’s Role in Reentry - A Guide to Best Practices"

The title of this post is the title of this big new report from the NYU Center on the Administration of Criminal Law.  Here is the report's executive summary:

The report provides concrete recommendations that prosecutors can implement in order to focus on reentry and target the risk of recidivism.  The report proceeds in four parts:

PART I focuses on reforms that prosecutors can implement at the “front end” of the process, including considering how prosecutorial discretion at various stages of a criminal case can impact defendants’ risk of recidivism and affect their reentry process.  This includes using discretion to make screening and charging decisions, considering diversion and other alternatives to incarceration, supporting pretrial release of defendants where appropriate, and considering the use of creative sentencing alternatives;

PART II focuses on reforms that prosecutors can implement at the “back end” of the process to begin preparing for an incarcerated individual’s eventual reentry to their community.  This includes prerelease reentry planning, and removing barriers that interfere with their ability to reintegrate into their communities, such as obtaining identification and drivers’ licenses, providing them opportunities to expunge their convictions and reduce fines that may burden them upon release, and collaborating with employers and community-based resources;

PART III focuses on the prosecutor as office leader and highlights office-wide reforms that can shift office culture to include anti-recidivism concerns as part of a broader focus on public safety; and

PART IV focuses on the prosecutor’s role in the larger community and how he or she can use his or her power to engage a diverse group of stakeholders in outreach and education initiatives, including legislative reforms designed to target recidivism at the front and back ends of the justice system.

November 29, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Tuesday, November 28, 2017

"Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice"

The title of this post is the title of this notable new paper now on SSRN authored by Mark Bennett and Victoria Plaut. Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery.  We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor.  We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences.  We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

November 28, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"The Law of Abolition"

the title of this post is the title of this new article by Kevin Barry available via SSRN.  Here is the abstract:

Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty.  The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands.

When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road.  This Essay gathers, for the first time and all in one place, the opinions of judges who have advocated abolition of the death penalty over the past half-century, and suggests, through this “law of abolition,” what a Supreme Court decision invalidating the death penalty might look like.  Although no one can know for sure how history will judge the death penalty, odds are good that the death penalty will come to be seen as one of the worst indignities our nation has ever known and that a Supreme Court decision abolishing it will, in time, be widely accepted as right.

November 28, 2017 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, November 27, 2017

Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges

For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:

Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”

The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.

The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.

The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:

‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.

‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”

‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”

‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”

‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”

State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”

Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.

Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”

Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.

Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.

“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.

The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.

Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”

At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:

Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System

Justice Reinvestment in Ohio: Overview

Justice Reinvestment 2.0 in Ohio: Launch Presentation

November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Friday, November 24, 2017

"Furman and Finitude"

The title of this post in the title of this new deep paper authored by Adam Thurschwell now available via SSRN. Here is the abstract

Martin Heidegger's ontological interpretation of death as the possibility of an impossibility — Dasein's (Being-There's) not-being-there — had been a repeated object of Jacques Derrida's critique prior to the Death Penalty Seminar he delivered in 1999 and 2000, and he returned to it again in the Seminar, although only briefly.  His primary goal lay elsewhere, in an investigation into the conceptual structure supporting capital punishment with the practical aim of its eventual abolition.  Nevertheless, a critique of Heidegger's existential analysis lies at the center of the seminar's intention.

In this essay, expanding on that insight, I first present Derrida’s notion that it is the phenomenon of the death penalty, not Heidegger's ontological analysis, that best expresses our precomprehension of the meaning of death.  Next, I explain the central paradox of contemporary abolitionist discourse that Derrida confronts in the seminar: the fact that the fundamental values supporting abolitionists' philosophical arguments lie equally on the side of the death penalty.  I then develop Derrida's resolution of this paradox by drawing out his deconstruction of Heidegger's analytic of death (what I call Derrida's "quasi-existential analysis"), and place this deconstruction in relation to Derrida's other writings on law more generally and to the United States Supreme Court's current death penalty jurisprudence.  I conclude by suggesting that, notwithstanding the weight of its theoretical apparatus, his resolution of the paradox is best understood in terms of praxis, specifically, the legal defense of capital cases.

November 24, 2017 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, November 21, 2017

Senator Mike Lee explains how "conservative approach to lawmaking" drives his advocacy for federal sentencing reforms

Lee_1x1Pew's Public Safety Performance Project has this notable new Q&A with Mike Lee under the subheading "A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed."  I recommend the entire Q&A, and the final three Qs and As struck me as worth reprinting here:

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that [Judge Paul Cassell in the Angelos case] had said, and I realized that I had become one of the people who could help fix this problem.  So that’s what I decided to do.  I knew it wouldn’t necessarily be easy, but I also knew it was important.  So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation.  It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate.  And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness.  Harshness itself isn’t an end objective.  We want to be smart in the way we punish crime.  We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?”  And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property.  There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just.  So for me, this is a natural outgrowth of my conservative approach to lawmaking.

November 21, 2017 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, November 18, 2017

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Friday, November 17, 2017

New ACLU poll suggests significant interest in criminal justice reform

This ACLU posting, headlined "ACLU Poll Finds Americans Reject Trump’s Tough-on-Crime Approach," reports on the result of notable new poll with notable new findings. Here are excerpts from the posting:

In a rejection of President Trump and Attorney General Jeff Sessions' tough-on-crime approach, a new ACLU poll finds that a large majority of Americans believe the criminal justice system is unjust and needs to be significantly reformed.

Nine out of 10 Americans from across the political spectrum told our pollster that our criminal justice system needs fixing. This is an astounding number, but the results are even more impressive when you drill down into them. They show that criminal justice reform is a political issue the American people care about....

Our polling shows that Americans are uncomfortable with the land of the free putting so many of its people behind bars, particularly when two out of three respondents do not believe that the criminal justice system treats Black people fairly. Seventy-one percent of respondents said that the United States should reduce its prison population.

This support remained strong across people with very different political beliefs. Eighty-seven percent of Democrats, 67 percent of independents, and 57 percent of Republicans all agreed that we should reduce our prison population. But one of the most encouraging signs that Americans have had enough of mass incarceration is that 52 percent of Trump voters said it was important to reduce the size of the prison population.

Most people polled also believed that mass incarceration wasn’t just a serious problem but counterproductive. Seventy-one percent of respondents agreed that “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.” This includes 68 percent of Republicans and 65 percent of Trump voters. Bleeding-heart liberals they are not.

Americans also don’t want their prisons full of people with mental health disabilities. Eighty-four percent of respondents said that people with mental health disabilities belong in mental health programs instead of prison.

Two in three Americans would be more likely to vote for candidates who supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs, including 65 percent of Trump voters. And 72 percent said that they would be more likely to vote for an elected official who supports eliminating mandatory minimum laws. This is in direct contrast to the agenda pushed forward by President Trump and Attorney General Session, who have supported more mandatory minimums.

The majority of Americans recognize racial bias in the criminal justice system. Fifty-five percent of Americans agree that racism in policing, prosecution, and sentencing are responsible for racial disparities in our nation’s prisons and jails....

Sixty-one percent of Americans believe that people who have committed crimes involving violence can turn their lives around. Sixty-one percent of Americans also believe that people who suffer from drug addiction and commit serious crimes don’t belong in prison but should be in rehabilitation programs where they can receive treatment. And nearly nine out of 10 respondents believe that when people with mental health disabilities commit crimes that involve violence they should be sent to mental health programs where they can receive treatment from professionals.

The full ACLU poll producing these results are available at this link.  Because of the structure of some of the questions asked in this poll, I am not entirely convinced that there is quite as much public opposition to current Trump-era "tough-on-crime" approaches as the ACLU is here asserting.  But I do think this poll provides still further evidence that the public in general is eager to hear policy-makers and political candidates discuss the opportunities and need for criminal justice reform.

November 17, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

Deputy Attorney General Rod Rosenstein delivered this lengthy speech at an awards dinner in Chicago on Thursday evening, and it included a number of interesting passages about crime fighting. I recommend the speech in full, and here are a few passages I thought especially worth highlighting:

In the first few decades after its creation in 1919, the Chicago Crime Commission battled bootleggers, gangs, and public corruption. It famously named Al Capone as Public Enemy Number One, which inspired the FBI to create its Ten Most Wanted List.

The challenges Chicago faces today demand a similar approach. In 2016, more than 4,300 Chicagoans were shot, and 760 were killed. On average, one person was shot every two hours, and two people were killed every day.  This year, with more than 600 homicides so far, Chicago is on track to report the second-highest murder total this century....

Gang violence accounts for the majority of the shootings and killings. Most of the violence relates to drug trafficking. Gang members do not just kill each other. T he also murder innocent bystanders -- men, women, and even children.

I mentioned earlier that I have a particular interest in a Chicago case from almost a century ago. It arose following the most notorious Chicago gang murder in history, known as the St. Valentine’s Day Massacre.  In 1929, seven victims were lined up against a wall and shot with machine guns.  The sensational crime shocked the city and provoked a public outcry to crack down on crime....

So Eliot Ness and his allies sent Capone to prison for a more readily provable crime -- tax evasion. Attorney General Robert Kennedy adopted a similar approach in 1961, when he counseled agents to fight organized crime with all available tools, even if it required prosecuting gangsters for minor offenses. In this century, after the attacks of September 11, 2001, Attorney General John Ashcroft ordered prosecutors to disrupt terrorist plots by pursuing any lawful charges to put suspects behind bars before they carry out their murderous plans.

The lesson of Ness, Kennedy and Ashcroft informs my approach to violent crime.  The lesson is that if we really want to save lives, we must have the courage to order our law enforcement agencies to employ proactive policing. To prevent crime, you need to identify killers and remove them from the community before they strike again.

I support education, job-training, rehabilitation, and other efforts to teach people not to commit crimes. But for police and prosecutors, our unique power is the ability to send people to prison.  The challenge is to focus on the right people and to make it count.  Local police agencies spend much of their time reacting to emergency calls and investigating past crimes, but they convict only a fraction of the perpetrators.

During my briefings with the leaders of the Chicago Police Department this morning, I learned that Chicago is now working to drive down violent crime through proactive policing.  We know that proactive policing works.  Proactive police and prosecutors identify violent repeat offenders, then they commit the resources needed to gather evidence of any readily prosecutable crimes.

Targeting dangerous repeat offenders for proactive enforcement is not a "zero tolerance" strategy of arresting random people for minor offenses.  It is a thoughtful strategy of identifying the career criminals and gangs that are fomenting violence in our communities, and using constitutional policing to arrest, prosecute and incarcerate them....

The lesson is that deterrence requires enforcement and rules that matter to criminals are the ones that carry expected penalties the criminals are unwilling to pay.  Deterrence is about fear of consequences. We want criminals to fear the police and the consequences of committing crimes.  If dangerous criminals are not afraid, then law-abiding citizens are in jeopardy.

When we see a surge in violent crime that follows a dramatic disruption in policing, as happened in Baltimore and Chicago, it is obvious that there is a lapse in the deterrent effect of law enforcement.  The debate about what caused the recent lapse in deterrence will endure, as will efforts to remedy root causes and improve relationships between police officers and residents of crime-ridden neighborhoods.

In the meantime, the crime surge can be suppressed if law enforcement agencies work together to secure lengthy sentences for armed felons, build proactive drug and conspiracy cases against members of gangs that foment violence, and prosecute dangerous offenders who violate probation or parole conditions.  I saw that approach work in Baltimore from 2007 to 2014. Both shootings and arrests fell dramatically.  It can work again....

Unfortunately, some people will not act good.  The national violent crime rate rose nearly seven percent over the past two years. The homicide rate increased more than 20 percent. Proactive policing can help reverse that trend....

The Attorney General also announced the creation of the National Public Safety Partnership to combat violent crime, and we hosted a National Summit on Crime Reduction and Public Safety.  The Attorney General established a new charging policy that authorizes prosecutors to charge defendants with the most serious offense.  It is not really a new policy; it is a return to the policy that worked when crime was falling....

We also are hiring additional federal prosecutors to focus on violent crime.  More police officers will patrol the streets with COPS hiring grants.  The Organized Crime and Drug Enforcement Task Forces helps implement a National Gang Strategy Initiative.  We offer training and technical assistance to state and local partners, and we collaborate with local law enforcement and exchange best practices.

There are many other things that we do to help reduce crime, but I want to conclude by talking about one of the most important.  We fight crime by promoting respect for the police. We need police to serve as role models.  Contacts with the police create indelible memories in the minds of citizens.  Police have a special responsibility to follow ethical and professional standards.  And citizens should show respect for law enforcement.  There is no excuse for people to harass law enforcement officers....

Chicago Police are still burdened by the requirement that they spend up to 45 minutes filling out a form every time they make a routine investigative stop. People who impose those requirements may be well-intentioned, but they usually fail to weigh the benefit of more bureaucracy against the cost of human lives lost to criminals who now are not stopped.

Fortunately, Superintendent Johnson’s police commanders are working to overcome their hurdles and give officers the tools and support they need to fight crime. Those tools include crime cameras, crime-mapping and predicting patrolling. I saw those tools demonstrated this morning at the Chicago Police Department’s Seventh District, where Commander Kenny Johnson and his crime analysts hold daily strategy meetings to decide where to assign patrol officers. They also run weekly shooting reviews attended by both state and federal prosecutors.

I also learned this morning that Chicago police data reports show that drug arrests lead to violent crime reductions. The most important single variable that reduces shootings in Chicago is to make a drug arrests. That is just a fact. As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence.”

It is good to see police leaders who are stubborn about facts.  Superintendent Johnson’s police officers do not mindlessly make mass drug arrests.  They arrest drug dealers who disrupt neighborhoods and foment violence.  They do exactly what Ness, Kennedy and Ashcroft did.

There are many notable aspects to this full speech, but I find especially interesting that the Deputy AG (1) references the St. Valentine’s Day Massacre without noting its link to alcohol Prohibition, (2) states that most of Chicago's violence relates to drug trafficking, and (3) asserts drug arrests lead to violent crime reductions.

November 16, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"Justice reform is real and conservative governors are leading the way"

The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin.  Here are excerpts:

During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma.  It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.

When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing.  With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.

Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean.  We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.

Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade.  Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....

I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.

This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society.  We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?

If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes.  Instead, we need to take a smarter, more measured approach to criminal justice.  More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.

In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems.  Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.

America has always been a land of opportunity and second chances.  When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.

November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

New report asserts California could and should cut its prison population by another 30,000

SquarelogoThis notable report by Californians for Safety and Justice, titled "Safe and Sound: Strategies to Save a Billion in Prison Costs and Build New Safety Solutions," makes the case that California could and should reduce its prison population by another 30,000 in order to close prisons and free up resources to spend on drug rehabilitation, mental health, job training and other programs. Here is an excerpt from the long report's executive summary:

Between 2006 and 2016, California has seen: A 25% drop in state prison incarceration.  A 10% statewide average drop in county jail populations.  A 64% drop in the number of people on state parole and a 22% drop in the number of felony filings in criminal courts annually.  Today more than 1.5 million Californians are eligible to remove nonviolent felony convictions from their old conviction records — opening the door to new opportunities for stability and empowerment. Rehabilitation programs are becoming more available to people in the justice system to help stop the cycle of crime. Trauma recovery centers are expanding across the state — from just one five years ago to eleven centers today—providing crisis care and help for underserved survivors of violent crime.  And, with the incarceration declines, hundreds of millions of dollars are finally being reallocated from bloated, costly prisons to community-based treatment and prevention....

Despite this progress, the Golden State’s incarceration rate is still so high that it remains a historic anomaly. California still spends more than $11 billion a year on state prisons.  That’s a 500% increase in prison spending since 1981.  In fact, California spends as much today on prisons as every state in the United States combined spent on prisons in 1981 and it has increased annual prison spending at a rate that has significantly outpaced other states.  When local crime response costs in California are factored in, such as the cost of county jails, that figure is nearly doubled from $11 billion to $20 billion annually....

In the next five years, California leaders must commit to further reducing state incarceration and prison spending to finally achieve a balanced approach to public safety.  If California leaders can continue to rightsize the state’s incarceration rate — and substantially reduce prison spending — the state would have increased capacity to invest in new safety solutions that more effectively support people vulnerable to crime, prevent crime from happening in the first place and stop the cycle from continuing.

This report outlines the strategies available to local jurisdictions to reduce the flow of people into the justice system and the burdens local criminal justice systems face. It also describes the sentencing and prison length of stay reforms that can continue to safely reduce the number of people in state prison, strategies that are supported by data on what works to reduce recidivism.

If state leaders implement the sentencing and prison length of stay reforms outlined in this report, the state could safely reduce the length of prison terms for the majority of people in prison by 20%, and reduce the number of people in state prison by about 30,000.

November 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 15, 2017

"Should life in jail be worse than life outside?"

The question in the title of this post is the headline of this new commentary authored by Chris Barker in The Week. Here are excerpts:

The crucial concept governing carceral practices is something called "less eligibility." The idea dates back to the English Poor Law Amendment Act of 1834, which codified English practices of dealing with the indigent. In 1832, the economist Nassau William Senior described how the "first and most essential of all conditions" in administering relief to the poor (often by moving them into a workhouse) is that the indigent's "situation on the whole shall not be made really or apparently so eligible as the situation of the independent laborer of the lowest class."  That is, the conditions in the workhouse should be awful: worse even than the poorest of the poor.

But even before Senior's famous line, a different carceral ideal was afoot: equality. In 1791, writing specifically about criminal offenders, the English utilitarian philosopher Jeremy Bentham argued that "the ordinary condition of a convict doomed to a punishment that few or none but the individuals of the poorest class are apt to incur, ought not to be made more eligible than that of the poorest class of subjects in a state of innocence and liberty."  As the historian Janet Semple observed in Bentham's Prison (1993), his rule of severity is not "less eligibility" but a more commonsense equality principle — offenders should have access to no more resources than they had while free. "Bentham," Semple wrote, "did not envisage grinding his convicts down to below the level of the poorest of the poor."

Other countries do not run their jails and prisons according to a principle of less eligibility. German prisons operate under an "approximation" principle, wherein offenders' rights to privacy, dignity and property are protected.  Norwegian prisons use a similar "normality principle," which holds that daily prison life should be, as far as possible, no different from ordinary life.  Fellow Englishman and Bentham disciple James Mill embraced the normality principle in 1825 by arguing that inmates in pre-trial incarceration should be allowed to lead the same life that they enjoyed prior to arrest, including access to employment and freedom to make small purchases with their own money.  Today, U.S. jails and prisons have rejected these examples in thrall to "less eligibility," and not just for the poorest of the poor....

If, as I think, the aim of punishment is rehabilitation, it is hard to justify less rather than equal eligibility.  But not all agree that rehabilitation is the primary aim of punishment. Deterrence theorists think that controlling crime is the most important aim of punishment. Retributivists hold that punishment should repay the harm done to another in a like manner: an eye for an eye, a tooth for a tooth....

Too often, the U.S. conversation about criminal justice is about principles and theories of punishment: rehabilitation, retribution, deterrence. What I am arguing here is that these theories amount to little if we ignore less eligibility, or how we punish.  Visiting a jail without an outdoor yard, where offenders have no physical contact with friends and family during their incarceration, or a prison where life unfolds within coils of obtrusive razor wire, is not a normal life, and doesn't prepare you to return to normal life.  As opinion in the U.S. starts to move away from some punitive strategies such as solitary confinement, we should reconsider which of our other carceral practices meet or violate the crucial secondary principles (leniency, proportionality, egalitarianism) of a just criminal justice system....

It is a tragedy if the attempt to have a just society with a suitable criminal justice system has been transformed into criminogenic warehousing, based on surveillance and discipline, which achieves few or none of the goals of punishment.  It is foolishness to countenance such a system merely because it has not yet touched you.  The road to the present state of affairs leads through less eligibility, which, on the surface, is a principle that makes sense: treat offenders to a life that is worse than life on the outside.  After all, why should offenders have air conditioning if the farmer "living in innocence and liberty" does not?  But the answer is that it is too easy to forget the other constraints on the dignity, privacy, and autonomy of those incarcerated in jails and prisons.

Our present system is costly and ineffective; it creates aberrant economies and empowers prison gangs that in turn influence street gangs.  Prisons reproduce the cultural inadequacy of life on the inside on our streets and in popular culture, and when offenders are released into communities, their lack of rehabilitation justifies further segregation and other collateral consequences, such as employment and housing discrimination.

November 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, November 13, 2017

"The Boom and Bust of American Imprisonment"

The title of this post is the title of this new paper available via SSRN authored by Brandon Garrett. Here is the abstract:

We are teetering at the edge of a mass incarceration binge.  Lawmakers are reconsidering overly harsh criminal punishments.  At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis.  Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals.  Second, I discuss law professor Sam Buell's "Capital Offenses," an engaging book that examines why it is so challenging to punish business crimes due to the structure of the economy, corporations, and our federal criminal justice system.  Third, I turn to law professor Darryl Brown's "Free Market Criminal Justice," which explores the role of free market ideology in the divide in American criminal justice. 

I conclude by exploring the implications of these arguments and this research for mass incarceration as well as corporate accountability at the high and low ends of our criminal justice system — we are finally turning a corner on mass incarceration in this country, and the problems and solutions that these authors identify partly explain why and whether better things or new fears lie around that corner.  We are at a crossroads.  We need voices of reason like Soltes's, Buell's, and Brown's, today more than ever.

November 13, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, November 08, 2017

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, November 07, 2017

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Sunday, November 05, 2017

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

Facebook-seoMy local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?

November 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, November 03, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

"Multiple Offenders and the Question of Desert"

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

This essay, published as a chapter in Sentencing Multiple Crimes (Jesper Ryberg, Julian V. Roberts & Jan W. de Keijser eds., 2017) examines the bulk-discount approach to sentencing multiple offenders.  It argues that bulk discounts are not only appropriate and even mandatory from the just deserts perspective, but that as a general matter, there should be a substantial reduction in sentence for each additional offense when it comes to multiple-offense sentencing.

After providing specific examples of multiple offenders who were sentenced consecutively, the chapter discusses the relationship between culpability and character from the perspective of just deserts theory or retributivism.  It then advances the claim that sentences for multiple offenders should not reach the level at which the state would be communicating an unfairly and inappropriately harsh assessment of the character of each multiple offender.  It also considers the ways in which multiple offenders are more culpable than single-crime offenders and concludes by insisting that discounts for multiple offenders and premiums for repeat offenders are not inconsistent.

November 3, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, October 26, 2017

Prez Trump to declare opioid epidemic a "public health" emergency

As reported in this piece from The Hill, "President Trump on Thursday will instruct the acting director of the Department of Health and Human Services to declare the opioid epidemic a public health emergency, White House officials said." Here is more about this notable news:

It's a move that won't free up additional federal funding and is a more narrow option recommended by the president's opioid commission.  The announcement has been months in the making and avoids declaring a more sweeping national emergency under the Stafford Act, which was one option the administration's opioid commission had previously recommended.  The commission recommended either a public health emergency or a Stafford Act emergency.

The Stafford Act “doesn't offer authority that is helpful here," a senior administration official said. "There has been some false reporting about this." A Stafford Act emergency is typically reserved for a terror attack or natural disaster in a more localized area.

Trump will formally make the announcement during a White House event Thursday.... On Aug. 10, Trump said his administration was drafting paperwork to officially declare the epidemic a national emergency, which was the “first and most urgent” recommendation in an interim report from his commission to combat the crisis. Two months later, some advocates and lawmakers were frustrated that the declaration still hadn’t come. At a press conference last week, Trump said he’d make the announcement this week, calling a declaration “a very important step” and saying “to get to that step, a lot of work has to be done and it’s time-consuming work.”

Administration officials said they felt that a public health emergency was a better use of resources.  It will allow acting HHS Secretary Eric Hargan to loosen certain regulations and issue grants and spend money that he otherwise would not be able to.  A public health emergency needs to be renewed every 90 days until the declaration is no longer needed.

Three agencies that play a role in the federal response to the opioid epidemic have acting directors instead of Senate-confirmed leaders: the White House Office of National Drug Control Policy, the Department of Health and Human Services and the Drug Enforcement Administration.  Rep. Tom Marino (R-Pa.) — an early backer of Trump — withdrew as the ONDCP nominee last week following a Washington Post-"60 Minutes” joint investigative report on a bill he sponsored that weakened the DEA's ability to enforce the nation’s drug laws.  Marino has vigorously defended himself. White House officials said Trump will be submitting names to lead HHS and ONDCP soon but pointed to “obstructionists” in the Senate for slowing down confirmation of lower level agency appointees who could help implement the action.

The declaration could spark a funding feud in Washington, as some say more cash is needed to make a declaration effective. The amount of money left in the public health emergency fund is paltry — just $57,000.  Administration officials said there have been ongoing discussions with Congress about securing more money for the fund as part of the year-end spending bill, but would not discuss specific dollar amounts.

Though I am sure there will criticism and debate as to whether the Trump Administration is doing enough with this latest move and other actions, I cannot help but note and praise the labeling and symbolism here.  Today's announcement involves a declaration of a "public health" emergency rather than a declaration of a "war on opioids" or advocacy for increased punishments for opioid activity.  (Although until we hear what Prez Trump actually says this afternoon, it may be premature to praise what it would seem he plans to say and I recall that last month AG Sessions talked about winning the war against opioids.)

In prior generations, such as when crack was the drug of great concern in the 1980s, the response at the federal level was to increase and emphasize the criminal justice fight in various ways.  A "public health" focus for drug problems is one that has been long urged by researchers and advocates; today's announcement suggests some rhetoric of late is shifting to embracing a "public health" model — although on-the-ground realities demonstrate that the criminal justice system is still playing a huge part of the public response to opioid and other drug issues.

A few of many recent related posts:

October 26, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)