Monday, September 01, 2014
Gendered perspective on Ohio's challenges with opioids and prison growth
As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population. And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:
A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.
Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.
Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.
At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....
Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.
Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”
Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.
September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Friday, August 29, 2014
Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud
Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient. But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.
The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners. Here are snippets that help highlight why:
A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud. The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment. The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions. We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance. We remanded the case to afford the district court a chance to supply an adequate explanation....
In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.
On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.” In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1). The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud. See 18 U.S.C. § 3553(a)(7).
The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income. However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied. We find no error in the district court’s reference to these events....
While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.” Feemster, 572 F.3d at 464 (quotation omitted). For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes. We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.
This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation. This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."
Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court.
August 29, 2014 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 (7) | TrackBack
"Mass Probation: Toward a More Robust Theory of State Variation in Punishment"
The title of this post is the title of this intriguing new paper by Michelle Phelps available via SSRN. Here is the abstract:
Scholarship on the expansion of the criminal justice system in the U.S. has almost exclusively focused on imprisonment, investigating why some states lead the world in incarceration rates while others have restrained growth. Yet for most states, the predominant form of punishment is probation, and many seemingly progressive states supervise massive numbers of adults on community supervision. Drawing on Bureau of Justice Statistics data from 1980 and 2010, I analyze this expansion of mass probation and develop a typology of control regimes that theorizes both the scale and type of formal punishment states employ. The results demonstrate that mass probation rearranges scholars’ conclusions about the causes and consequences of the penal state.
Tuesday, August 26, 2014
Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details:
Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.
Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.
The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed. The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes. A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.
To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...
Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.
In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.
The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters. "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.
In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual. She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.
Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."
"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.
Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.
The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.
August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, August 24, 2014
"Clemency and the Unitary Executive"
The title of this post is the title of this notable new paper by Rachel Barkow now available on SSRN. Here is the abstract:
President Obama’s use of enforcement discretion to achieve important domestic policy initiatives — including in the field of criminal law — have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals. What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.
This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked. It is a critical mechanism for the President to control the executive department. Those in favor of a unitary executive should encourage its more robust employment. But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.
Saturday, August 23, 2014
Perspective on victims' perspectives on the death penalty
Today's Washington Post has this intriguing new commentary headlined "Death penalty debate isn’t simple for families of victims." Here are excerpts:
Botched executions in Ohio, Oklahoma and Arizona and continuing problems with lethal-injection drugs have put the death penalty back in the news. After a brief moratorium following Oklahoma’s debacle, my state, Missouri, has resumed executing its death-row prisoners. One of the condemned men there murdered the wife of the man I would later marry....
For most people, the death penalty debate falls along ideological lines — liberals are opposed and conservatives are in favor. But for the families of victims, the debate is not so simple and the solution is not so clear. They cringe when they hear left-leaning commentators repeatedly describe the chilling details of a botched execution without repeating the far more chilling details of the crime the condemned man committed. But they also cringe when they hear right-leaning commentators who promote the sanctity of life but do not question state-sanctioned death.
The killing that forever changed my husband’s life is the kind of crime that reinforces the beliefs of both sides. Advocates of the death penalty see an unspeakably brutal murder, committed with no known motivation against a woman alone in her upscale home. Opponents see an African American male suspect convicted by a white jury and sentenced to death for the murder of a white woman, with no eyewitnesses, no DNA evidence and no confession. They are both right. The murder cried out for justice, but the conviction and sentencing fit a disturbing pattern of racial bias and rush to judgment....
Families of the victims, for the most part, do not weigh in on the debate. For them, it is not a question of politics or policy. It is personal, and whether the condemned killer dies alone in his cell or suffers an excruciating death at the hand of the state, their pain will not be erased by his.
Death penalty supporters talk of closure. That may work as a matter of process — execution rids the state and the justice system of any further involvement — but it is much more complicated for families of victims. Each envelope from the Department of Corrections, each anniversary when the crime is recounted in the paper, every discussion about the death penalty on TV — those are reopenings, not closings. Our excruciatingly slow justice system has put my husband through more than 15 years of this. The killer may be getting what he deserves, but my husband will not be getting what he deserves: an end to the horrific memories that haunt him day and night.
As Missouri moves methodically through its backlog of condemned men and the killer’s last day is finally set, the crime will be back in the headlines. Reporters will be calling my husband for comment, the condemned man’s lawyers will be interviewed, last-minute appeals on other grounds will be filed. In the end, we can only hope that the execution drugs will be swift and effective, that the person administering them has been properly trained and that this will finally bring an end to killing in our lives.
Friday, August 22, 2014
"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"
The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice. Here is the paper's summary:
Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers. Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system. Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets. However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.
To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements. If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time. Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.
An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system. Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations. Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable. States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay. This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.
August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack
Third Circuit finds "reprehensible" conduct regarding victim restitution not grounds for revoking supervised release
A Third Circuit panel yesterday handed down an interesting ruling in US v. Bagdy, No. 13-2975 (3d Cir. Aug. 21, 2014) (available here), reversing the revocation of supervised released despite calling the defendant's conduct "reprehensible." Here is how the Bagdy opinion starts:
At issue on this appeal is whether supervised release may be revoked and an offender sent to prison based upon a District Court’s finding that the offender acted in bad faith in relation to his obligation to make restitution to the victims of his criminal conduct. In this case, although Appellant David Bagdy complied with the letter of the District Court’s restitution order by ultimately paying more than one-third of a $435,000 inheritance he had received while on supervised release, he engaged in a lavish spending spree that dissipated the balance of the inheritance while delaying the proceedings intended to modify the restitution order. Like the District Court, we find Bagdy’s conduct reprehensible. We conclude, however, that the District Court could not revoke supervised release for such bad faith conduct because Bagdy did not violate a specific condition of supervised release in relation to the restitution obligation. Accordingly, we will vacate the judgment and remand for further proceedings.
Thursday, August 21, 2014
After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
The question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective." Here are excerpts from the commentary (with links from the original):
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
Additionally, business interests play a part in keeping cannabis illegal. Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.
A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- "The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- Is pot already really legal for middle-aged white folks?
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack
"The Scarlet Letter of the Law: A Place for Shaming Punishments in Arizona"
The title of this post is the title of this paper by Michael Lee Dynes and Henry Edward Whitmer recently posted on SSRN. Here is the abstract:
Trends in penological methods come and go, changing as a society’s attitude shifts, knowledge increases, and experience grows. A recent trend in modern sentencing methods has demonstrated a renewed interest in shaming punishments. Supporters of this trend point to the apparent ineffectiveness of a general system of fines, probation, and incarceration; they see a need for more specifically tailored punishments as a reason to promote shaming punishments. Opponents argue that society was wise to abandon most types of shaming punishments.
The purpose of this Article is to further the discussion regarding punishment options available to courts and to consider a wider use of shaming punishments in certain circumstances. Shaming punishments may be particularly effective if they are tailored to criminals convicted of specific crimes, especially criminals having middle to high socioeconomic class status and who may lose social standing if their criminal activities are made public. This Article begins with a brief history of shaming as punishment, followed by examples of modern shaming. Next, this Article explains and considers the criticisms of judicial sanctions designed to induce shame in an offender, and it discusses penological justifications for shaming. Finally, the Article discusses potential uses for shaming punishments in Arizona and recommends that Arizona courts expand the use of shaming punishments — as an addition to current statutorily-available punishments — for criminals of mid to high socioeconomic status.
Wednesday, August 20, 2014
Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft
Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:
The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines. For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.
The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term. Here is an excerpt from the heart of the opinion's analysis:
In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino. There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons. Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....
The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos. We acknowledge that all fines serve the twin purposes of punishment and deterrence. At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry. The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....
[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses. It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties. However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them. We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.
August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack
Friday, August 15, 2014
"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"
The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler. Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon. Here is the abstract:
Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.
The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of an independent commission with a standing, diverse membership. While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position. This is the time to create a better machine of mercy.
Wednesday, August 13, 2014
"How Prisoners’ Rights Lawyers are Preserving the Role of the Courts"
The title of this post is the title of this notable new article on SSRN authored by Margo Schlanger. Here is the abstract:
This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners.
Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents
Monday, August 11, 2014
Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here). Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front.
In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say. For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way:
In a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.
Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....
Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.
In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:
Greenfield: "Numbers don’t lie (But People Do)"
All this is highly recommended reading!
Friday, August 08, 2014
"The High Costs of Low Risk: The Crisis of America’s Aging Prison Population"
For the past four decades, we have witnessed the most sustained and widespread imprisonment binge known throughout recorded human history. The facts are all too familiar: the United States has roughly 5 percent of the world’s population, yet is responsible for 25 percent of the world’s incarcerated population. With an estimated 2.3 million adults in jail or prison and 1 out of every 32 adults under correctional or community supervision, the U.S. surpasses all other countries in sheer numbers and per capita incarceration rates.
The immense costs of incarceration have increasingly framed the conversation around reducing the prison population as a matter of fiscal responsibility and budgetary necessity. This discussion is often centered around reducing the arrest and prosecution of so-called “non-violent drug offenders.” But these issues belie a much more pressing human and economic concern: the aging prison population, whose costs for incarceration and care will soon prove unsustainable if meaningful action is not taken. And though prison is expensive, cost is far from the only justification to move away from our reliance on incarceration, as the continued long-term incarceration of aging citizens has serious moral, ethical, public health, and public safety implications.
This paper aims to provide a brief contextual framework of the issues affecting elders in prison; to illuminate the ongoing efforts being undertaken to improve conditions within correctional facilities, increase mechanisms for release, and develop robust post-release services specifically targeting the unique needs of the aging population in reentry; and to sketch out preliminary recommendations to serve as a basis for further work to be done throughout several key sectors.
Despite their apparent interrelated interests in the aging prison population, the fields of gerontology, medical and mental health, philanthropy, and corrections have only sporadically interacted around this issue, and never as a unified voice. Thus, a primary objective of this work is to encourage multi-sector dialogue, cross-pollination of ideas, and a shared foundational knowledge that will strengthen the connections among these fields and form a basis for unifying action.
We believe such a partnership will be well equipped to identify and engage in appropriate measures that will immediately impact the aging prison population, while also developing and implementing the necessary socio-structural architecture to effectively address long-term mechanisms of diversion, release, and reentry.
Austerity-driven approaches to shrinking budgets and increasing public discomfort with mass incarceration create an opportunity to seriously address the epidemic of America’s graying prison population and to imbue our criminal justice system with values and policies that are humane, cost-effective, and socially responsible.
Saturday, August 02, 2014
"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"
The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN. Here is the abstract:
Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices. Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty. In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.
South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision. Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce. Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.
August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, July 31, 2014
Making a libertarian case for "Why the Death Penalty Needs to Die"
The title of this post is drawn from the headline of this notable new commentary by Nick Gillespie at The Daily Beast. Here are excerpts:
As a libertarian, I’m not surprised that the state is so incompetent that it can’t even kill people efficiently. But I’m far more outraged by the idea that anyone anywhere seriously thinks the death penalty passes for good politics or sane policy. It’s expensive, ineffective, and most of all, deeply offensive to ideals of truly limited government.
Consider that between 1980 and 2012, California spent $4 billion administering death penalty cases while actually executing just 13 individuals, according to a study produced by Loyola Marymount Law Professor Paula Mitchell. What’s more, Mitchell told Reason TV’s Tracy Oppenheimer, when the death penalty is in play, “the legal costs [per case] skyrocket to an extra $134 million per year, well above the cost to implement life without possibility of parole.” Given the severity and finality of the punishment, it makes all the sense in the world to make sure due process was followed in all death penalty cases. I’m sure death costs more in California (everything else does) than in other states, but there’s just never going to be a way to make it less than a huge waste of taxpayer money....
Here’s one more [reason to kill the death penalty] that would hold true even if through some miracle the government could make the finances work, guarantee absolute accuracy in convicting only guilty perps, and show that executions significantly deterred crime: The state’s first role — and arguably its only one — is protecting the lives and property of its citizens. In everything it does — from collecting taxes to seizing property for public works to incentivizing “good” behaviors and habits — it should use the least violence or coercion possible. No matter how despicable murderers can be, the state can make sure we’re safe by locking them up behind bars for the rest of their — and our — lives. That’s not only a cheaper answer than state-sanctioned murder, it’s a more moral one, too.
Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant
The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here). Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely. In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.
Here is how the Musgrave opinion starts and finishes:
A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud. The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment. On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable. For the following reasons, we vacate the district court’s sentence and remand for resentencing....
A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2). In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)). The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive. Peppel, 707 F.3d at 636. A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012). Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment. See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.
Impermissible considerations permeated the district court’s justification for Musgrave’s sentence. In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life. “[N]one of these things are [his] sentence. Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment. Bistline, 665 F.3d at 765. On remand, the district court must sentence Musgrave without considering these factors....
In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617. “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.
Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines. See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be). This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes. Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617. More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context. Id. Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence. Id.; Camiscione, 591 F.3d at 834. The district court failed to do so here.
Musgrave must be resentenced. The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.” Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.
I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.
July 31, 2014 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, White-collar sentencing | Permalink | Comments (0) | TrackBack
"Attorney General Eric Holder to Oppose Data-Driven Sentencing"
The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice. Here are highlights from this article (with more to follow in coming posts):
Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations. Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.
Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again. Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.
Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities. “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.
Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money. But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.
Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”
Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders. Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law. And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.
But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work. “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement. For example, prior convictions and the age of first arrest are among the most powerful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.
And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue. Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown. “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.
Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line. Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....
Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing. “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.
Tuesday, July 29, 2014
"Right on Crime: A Return to First Principles for American Conservatives"
The title of this post is the title of this new article by Marc Levin and Vikrant Reddy which I recently discovered via the Right on Crime blog. Here is an excerpt from the tail-end of the article's introduction:
The idea that conservatives are ideologically committed to mass incarceration is — and always was — a caricature. American incarceration rates increased significantly in recent decades, and many on the right supported this increase, but conservative support for increased incarceration was linked to unique historical circumstances, not to any philosophical commitment. Moreover, while conservatives were correct in the early 1970s that some increase in incarceration was necessary to ensure that violent and dangerous offenders served significant prison terms, the sixfold increase in incarceration from the early 1970s to the mid-2000s reached many nonviolent, low-risk offenders. Now, as crime rates are declining, conservatives are increasingly focused on developing policies that prioritize using limited prison space to house violent offenders while looking for alternative sanctions to hold nonviolent offenders accountable, restore victims, and protect public safety. In generating and advocating these policies, conservatives are returning to first principles: skepticism of state power, insistence on government accountability, and concern for how public policy affects social norms.
In this article, we discuss the conservative return to first principles in criminal justice. In Part II, we explain the modern problem of mass incarceration. Then, in Part III, we note the historical reasons behind the push to increase incarceration in the 1980s and 1990s. In Part IV, we detail legislative reforms to remedy the incarceration problem that are consistent with conservative ideological principles.