Friday, July 21, 2017

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, July 16, 2017

"Ministers of Justice and Mass Incarceration"

The title of this post is the title of this new paper available via SSRN authored by Lissa Griffin and Ellen Yaroshefsky. Here is the abstract:

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system.  As a consequence, there has been significant attention to the causes of mass incarceration.  These include the war on drugs and political decisions based on a “law and order” perspective.  Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas.  All of this occurred as crime rates dropped.

Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor.  It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence.  Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population.  That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions.  If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?

This Article examines the recognized role of the prosecutor as a “minister of justice,” and makes a range of suggested changes to the prosecution function.  These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.

July 16, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, July 13, 2017

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, July 11, 2017

"It’s time to refocus the punishment paradigm"

The title of this post is the headline of this notable new commentary in The Hill authored by Adam Gelb and Barbara Broderick. Here are excerpts:

[O]ne of the most powerful findings in criminology is that rewards are better shapers of behavior than punishments. But that’s not typically how it works for the 4.7 million Americans on probation or parole, the community supervision programs founded for the purpose of redirecting troubled lives.

Instead, supervision has become mostly about enforcing the rules — report to your probation officer, attend treatment, etc. — and locking people up when they don’t obey.  Corrections professionals call it “Trail ’em, nail ’em, and jail ’em.”

People who commit crimes need to be held accountable for their actions, of course, but the criminal justice system serves a much wider purpose: protecting public safety.  In order to cut crime and recidivism rates — and rein in corrections spending — we need to harness what the research says about changing behavior.  That means refocusing the punishment model and making the primary mission of supervision to promote success, not just punish failure.

This fundamental transformation is one of a set of proposed paradigm shifts in community corrections highlighted in a report set to be released later this month from Harvard’s Kennedy School of Government and the National Institute of Justice — the product of three years of discussions among leading experts in criminal justice, of which we were a part.

Our group sought to identify strategies for probation, parole, and other programs that can both promote public safety and build trust between communities and justice institutions.  Other shifts include moving from mass to targeted supervision, concentrating resources on more serious offenders, and swapping intuition-based policies for evidence-based practices (such as focusing treatment on changing characteristics that contribute to offending, like poor impulse control, and avoiding those that don’t.)

Making supervision more reward-based holds great potential.  A probation officer’s job has traditionally been defined as reactive: wait until something bad happens and then impose a sanction, often a return to prison. This not only costs state taxpayers an average of $30,000 per year for each inmate, it also ignores a good part of what we know works best when it comes to steering ex-offenders away from continued criminality....

Drug courts have helped pioneer reward-based practices by holding graduation ceremonies to commemorate program completion.  Many graduates say it’s the first time in their lives that they’ve achieved something and been publicly acknowledged for it, and studies suggest that this type of recognition inspires them to persist in their sobriety.

Such ceremonies shouldn’t be limited to specialized courts or programs, which handle only a small fraction of the millions of people on community supervision.  They should be expanded and accompanied by other rewards for progress along the way.  Local communities and businesses can chip in with small gift cards and other tokens of recognition.

At least 15 states have passed laws that establish “earned compliance credits,” which typically permit offenders to earn a month off of their supervision terms for each month that they’re in compliance.  This tactic could be expanded and used in new ways.  For instance, for each month they obey the rules, parolees or probationers could have a reduction or elimination of the monthly fee (typically about $50) that they’re required to pay.

Another potentially promising method would capture the power of social media to push positive messages to probationers and parolees when they do well.  Pass a drug test, complete a phase of treatment, or get a job — and you’d receive a batch of digital pats on the back from your treatment team and circle of family and friends.

It’s human instinct to punish wrongdoing, and accountability won’t — and shouldn’t — vanish from the criminal justice system.  We can’t just reward people when they do right but fail to respond when they do wrong. But by shifting the emphasis from retribution to rewards, we can make a greater impact on behavior.

July 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

"Punishment and the Burden of Proof"

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

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility.  The argument I make in this paper, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof.  Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt.  That same objection holds as well against proposals of non-retributive punishment: the adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures.

The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

July 11, 2017 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, July 10, 2017

Drug Policy Alliance issues big new report calling for drug decriminalization

Download (2)This new press release reports on the latest call by the Drug Policy Alliance (DPA) for drug decriminalization in the US.  The DPA has this new report titled "It's Time for the U.S. to Decriminalize Drug Use and Possession," and the press release discusses its work with other organization to push this agenda forward.  Here is start and end of the DPA report's executive summary:

By any measure and every metric, the U.S. war on drugs — a constellation of laws and policies that seeks to prevent and control the use and sale of drugs primarily through punishment and coercion – has been a colossal failure with tragic results. Indeed, federal and state policies that are designed to be “tough” on people who use and sell drugs have helped over-fill our jails and prisons, permanently branded millions of people as “criminals”, and exacerbated drug-related death, disease and suffering — all while failing at their stated goal of reducing problematic drug use.

This report offers a roadmap for how to begin to unwind our failed drug war. It focuses on one practical step that can and should be taken to avoid many of the harms that flow from punitive prohibitionist drug laws and to promote proven, effective health-based interventions.

Drug decriminalization is a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration.  Decades of evidence has clearly demonstrated that decriminalization is a sensible path forward that would reap vast human and fiscal benefits, while protecting families and communities.

Drug decriminalization is defined here as the elimination of criminal penalties for drug use and possession, as well as the elimination of criminal penalties for the possession of equipment used for the purpose of introducing drugs into the human body, such as syringes.  Throughout this report, we will use the phrase “drug possession” to include drug possession, drug use, and possession of paraphernalia used for the purpose of introducing drugs into the human body.

Ideally, drug decriminalization entails the elimination of all punitive, abstinence-based, coercive approaches to drug use; however, for purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts do not eliminate all forms of coercion entirely.  Drug decriminalization also ideally entails the removal of criminal penalties for low-level sales, given that the line between seller and user is often blurred (this subject and the broader issue of people who sell drugs will be addressed in a subsequent DPA report).

This report is the product of a comprehensive review of the public health and criminology literature, an analysis of drug policies in the U.S. and abroad, and input from experts in the fields of drug policy and criminal justice.  By highlighting the benefits of eliminating criminal penalties for drug use and possession, we seek to provide policymakers, community leaders and advocates with evidence-based options for a new approach....

This report makes the following recommendations for local, state and federal policymakers in the U.S.:

• Congress and U.S. states should eliminate federal and state criminal penalties and collateral sanctions for drug use, drug possession for personal use, and possession of paraphernalia intended for consuming drugs.

• Congress should amend federal law to de-schedule marijuana and remove it from the federal Controlled Substances Act.

• Administrative penalties – such as civil asset forfeiture, administrative detention, driver’s license suspension (absent impairment), excessive fines, and parental termination or child welfare interventions (absent harm to children) – run counter to the intent of a decriminalization policy and should not be imposed.

• Decriminalization policies — like other drug policies — generally function far more effectively when accompanied by robust and diverse harm reduction and treatment-on-demand programs, including medication-assisted treatment.

• Local and state governments should adopt pre-booking diversion and 911 Good Samaritan policies to prioritize public health over punishment and incarceration.

July 10, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, July 05, 2017

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Sunday, June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, June 18, 2017

Could jail be "the answer" for drug addicts?

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 16, 2017

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 13, 2017

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

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

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

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

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

Friday, June 09, 2017

"Measuring the Creative Plea Bargain"

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

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

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

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

Thursday, June 08, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 06, 2017

"Kinds of Punishment"

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

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

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

Friday, June 02, 2017

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

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

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

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

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

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

Monday, May 29, 2017

The Economist urges "Rethinking Prison"

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

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

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

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

Here is an excerpt from the last of these articles:

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

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

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

Wednesday, May 24, 2017

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

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

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

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

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

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

Tuesday, May 23, 2017

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

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

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

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

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

Saturday, May 20, 2017

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

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

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

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

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

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

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

Panel One: Overview of Collateral Consequences of Incarceration:

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

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

Panel Two: Access to Civil Participation after Incarceration:

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

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

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

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

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

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

Thursday, May 18, 2017

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

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

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

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

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

Sunday, May 14, 2017

"Dismissals as Justice"

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

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

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

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

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

Wednesday, May 10, 2017

Highlighting that conservative voters say they support criminal justice reform efforts

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

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

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

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

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

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

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

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

Recent prior related post:

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

Sunday, May 07, 2017

Reflecting on decreasing death sentences and increasing life sentences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 06, 2017

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

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

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

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

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

Friday, May 05, 2017

"Mass Monitoring"

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

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

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

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

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

Thursday, May 04, 2017

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

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

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

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

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

Wednesday, May 03, 2017

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

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

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

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

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

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

Monday, May 01, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior related posts on Loomis case:

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

Sunday, April 30, 2017

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

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

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

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

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

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

Friday, April 28, 2017

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

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

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

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

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

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

Wednesday, April 26, 2017

"Penal Incapacitation: A Situationist Critique"

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

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

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

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

Sunday, April 23, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 16, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 07, 2017

"Who are the Punishers?"

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

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

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

Tuesday, April 04, 2017

"Criminal Employment Law"

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

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

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

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

Monday, April 03, 2017

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

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

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

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

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

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

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

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

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

Saturday, April 01, 2017

"Civilizing Criminal Settlements"

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

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

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

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

Tuesday, March 28, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, March 25, 2017

"End the death penalty for mentally ill criminals"

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

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

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

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

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

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

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

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

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

Thursday, March 16, 2017

"Technological Incarceration and the End of the Prison Crisis"

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

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

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

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

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

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

Wednesday, March 15, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, March 12, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Friday, March 10, 2017

"Why Prison?: An Economic Critique"

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

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

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

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

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

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

Thursday, March 09, 2017

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

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

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

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

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

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