Monday, October 05, 2015

Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015

I am quite pleased to see that, in the wake of introducting in the US Senate the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here), two prominent GOP Senators (one old guard, one new guard) have taken to the op-ed pages to explain what they are doing.   Politics_Grassley_620Here are links to these op-eds:

From (old guard) Senate Judiciary Chair Charles Grassley in the Des Moines Register here, "I'm working for criminal justice reform."  Excerpts:

For the last several months, I’ve listened, worked, negotiated and built consensus with my colleagues on an important public policy that governs crime and punishment and has a sweeping effect on the citizenry.  The nation’s criminal justice system serves the accused and the aggrieved in our society. And the taxpaying public foots the bill for our courts, law enforcement and prisons that protect public safety and serve justice....

Notwithstanding the merits of mandatory minimums that are designed to promote the public good and public safety, federal sentencing has come under increased scrutiny for locking up low-level offenders and incarceration rates that are running up an unsustainable tab to American taxpayers, roughly $80 billion annually. There’s no doubt that drug and human trafficking and gang-related crimes continue to persist and poison the well of civic life, endangering public safety daily.  And yet, there’s room for sensible reforms that improve the criminal justice system so that it’s fair and just to victims, the accused and taxpayers.  The right policy mix of reforms can give low-level offenders who have paid their debts to society a second chance to rejoin their families and find employment in their communities.

This week I introduced the bipartisan Sentencing Reform and Corrections Act of 2015. It reflects carefully crafted sentencing reforms to achieve fairness, justice and fidelity to the rule of law.

Our proposed reforms give the courts more flexibility in federal sentencing laws for non-violent, low-level drug offenders, including the elimination of the three strikes mandatory life provision.  We also expand the existing safety valve and add a second safety valve that provide relief from the 10-year mandatory minimum for certain low-level offenders.  It would retroactively apply the Fair Sentencing Act of 2010 that reduced the sentencing disparity between crack and powder cocaine criminal drug offenses.

We also target and expand some of the existing mandatory minimums so that law enforcement can continue to pursue violent repeat offenders and gun criminals.  And we create new mandatory minimums for crimes involving interstate domestic violence and the export of weapons and other defense articles to prohibited countries and terrorists.

The scales of justice require equal rights under the law for the accused and for victims of crime.  Fairness in a criminal justice system also must consider the opportunity for reintegration.  Our bill would require the Department of Justice to classify all federal inmates and assign qualifying prisoners to a recidivism reduction program.  This may include job training, drug recovery, faith-based and work and education programs that provide eligible inmates an opportunity to earn early release.

There’s a fine line between leniency and levelheadedness.  That’s why I’m working for balanced reforms that do not compromise public safety and national security.

From (new guard) Senator Mike Lee in the Washington Examiner here, "The conservative case for criminal justice reform."  Excerpts:

The problem today is not simply that penalties are too harsh or sentences too long — though in many cases they are.  The problem is that, over the past several decades, we have industrialized and bureaucratized our criminal, judicial and penal systems.

Which is to say, we've turned them into unaccountable, short-sighted, input-oriented, self-interested institutions — immune to common sense — that treat offenders as statistical cases rather than human beings.

For conservatives, criminal justice reform is not a venue for the airing of ideological grievances or the testing of fashionable theories.  It's about helping our communities stay as safe and secure as possible, while infringing as little as possible on the God-given, equal rights of all Americans and their pursuit of happiness.

It's about designing our laws, our court procedures and our prison systems on the basis of a clear-eyed and time-tested understanding of human nature — of man's predilection toward sin and his capacity for redemption — as well as an uncompromising respect for the fundamental dignity of the human person.  Criminal justice reform, properly understood, is an invitation for principled conservatism at its best.  Our bill expands judicial discretion, so judges can treat offenders like human beings, not statistics, and punish them according to their particular circumstances, instead of indiscriminate bureaucratic guidelines.

It broadens the federal "safety valve" — a provision that allows federal judges to sentence a limited number of offenders below the mandatory minimum sentence.

The bill also improves the quality of our federal prison system, so that we have fewer first-time offenders turning into career criminals. It will expand inmates' access to vocational training, therapeutic counseling and reentry services that help offenders who have fulfilled their sentences return to their families, their communities, and lawful, steady jobs.

Reforming our federal criminal justice system doesn't require us to avert our eyes from a person's crimes, or make excuses that blame someone, or something, else for the choices he made.  No, it requires looking squarely at the facts of the case, no matter how ugly or wicked; holding offenders directly and personally accountable for their crimes; and devising a punishment that fits both the crime and the criminal.

We do this all the time in our daily lives when we recognize the humanity of hating the sin, not the sinner.  It's called forgiveness.  Forgiving is not the same thing as excusing. Nor is it incompatible with punishment.

Forgiveness requires assigning blame and, when necessary, imposing punishments — which is to say forgiveness requires treating offenders as morally responsible individuals — as human beings who, like the rest of us, have the propensity for vice and for virtue, and who must be held accountable for their choice of one or the other.

We know that no man is without sin.  Now, we must remember — in our hearts and in our laws — that no man is without hope.  This is why I'm involved — and invite you to join me — in the conservative movement for criminal justice reform.

The two lines I will remember from the pieces are sure to be "There’s a fine line between leniency and levelheadedness," and "we must remember — in our hearts and in our laws — that no man is without hope."

Recent prior related posts on SRCA 2015:

October 5, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, October 04, 2015

Strong crime and punishment coverage of drugs, guns and more via Vox

I remain a bit unsure of what Vox is and who is behind all of Vox Media, but I am sure that Vox has recently done a lot of good and important work on a lot of topics that should be of great interest to criminal justice fans.  Here are headlines and links:

October 4, 2015 in Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1)

Highlighting how state education spending decreases as state corrections spending increases

Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years.  The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding."  Here are excerpts (with links from the original):

Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences.  According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.  

That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said.  "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."

A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools.  And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."

According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut. 

Prior recent related post:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, October 02, 2015

"How to Fight Modern-Day Debtors’ Prisons? Sue the Courts."

EJUL-slide-3The title of this post is the headline of this Marshall Project report on recent litigation brought by Alex Karakatsanis and his Equal Justice Under Law non-profit. Here is the start of the report (with links from original):

A young civil-rights attorney in Washington, D.C., is suing courts across the country for jailing defendants unable to afford their bail, court fines, and probation fees.  As a result, cities in Alabama, Missouri, Mississippi, and Louisiana have recently done away with bail for misdemeanors and traffic violations.

The lawyer, 31-year-old Alec Karakatsanis, has now filed a federal lawsuit against Rutherford County, Tenn. and the private company it contracts with to collect court debts. According to the lawsuit, that company, Providence Community Corrections, ran “an extortion scheme” that “conspired to extract as much money as possible” from people who were threatened with jail time if they couldn’t pay court fees and fines.

PCC is “user funded,” which means the company does not charge the county for its services but depends solely on fees paid for by people on probation.  Some of those fees include “supervision fees,” costs for drug tests and classes, and even a $25 fee for those applying for fee reductions. Before Rutherford County outsourced its probation services to PCC in 1996, the county was only collecting a fraction of fees, PCC State Director Sean Hollis told the Daily News Journal in 2014.

PCC collected over $17 million from probationers in Rutherford County between 2009 and 2014, according to the Daily News Journal. Rutherford County Judge Ben Hall McFarlin told the paper at that time: “The county didn't pay for anyone to get that money," adding that he had never sentenced anyone to jail if their only violation was a failure to pay. "I don't see where the taxpayers would disagree with that.”

The lawsuit was filed on behalf of seven plaintiffs and alleges that indigent defendants in Rutherford County have lost their jobs, houses, cars, and even sold their own blood plasma to make payments and avoid jail time.

“Everything about this scheme is in flagrant violation of U.S. constitutional law, federal law, and even specific Tennessee law,” Karakatsanis told The Marshall Project. In Tennessee, it’s illegal to imprison a person over court debt.  

The suit was brought under a federal anti-corruption law accusing PCC and Rutherford County of operating a “racketeering enterprise” that misuses “the probation supervision process for profit.” A spokesman for PCC, Jeff Hahn, wrote in a statement that PCC's "mission is to encourage people to complete their probation successfully per the terms set by the courts." He added that "in each of the states we serve, we steadfastly comply with the laws governing the probation system."

It’s just the latest salvo from Karakatsanis, who helped start Equal Justice Under Law, a nonprofit civil-rights organization. Karakatsanis and co-founder Phil Telfeyan, 32, started their organization in 2014 with a grant from their alma mater, Harvard Law School, in order to challenge inequalities in the criminal justice system. The organization often works in partnership with local attorneys and nonprofits.

In November 2014, the city of Montgomery, Ala., agreed to terminate its contract with a private probation company as part of a settlement with Equal Justice Under Law.  The lawsuit alleged that indigent people in Montgomery were being jailed over their inability to pay their court debts.  Similar lawsuits were filed in 2015 against municipal courts in Ferguson, Mo., Jennings, Mo. and New Orleans, La., although those cities do not rely on private probation companies to collect debts.

Equal Justice Under Law has also sued six jurisdictions over their bail systems, and all six no longer require defendants to pay bail as a condition of their release. The organization filed a seventh lawsuit, in Calhoun, Ga., in early September.

October 2, 2015 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Thursday, October 01, 2015

"Retributive Desert as Fair Play"

The title of this post is the title of this notable punishment theory paper authored by Peter Westen and available via SSRN. Here is the abstract:

The moral intuition that culpable wrongdoers deserve to suffer is so strong and pervasive that some advocates of retributivism, including Michael Moore, base their positions entirely upon it. Yet, given the enormity of state-imposed punishment, it is incumbent upon students of punishment to seek broader principles of justice by which such intuitions can be explained.

The moral principle that I believe most plausibly explains and justifies criminal desert is Herbert Morris’s theory of unfair advantage. I argue that commentators have failed to address Morris theory in its strongest possible form and failed to examine critically the arguments against it. Morris’s theory not only supplies normative content to intuitions of desert, it also reveals that ‘paying back a debt’ -- the original meaning of the Latin retribution -- is not a “faded and dead metaphor,” as Michael Moore asserts, but an apt description of what it is to deserve suffering for culpable wrongdoing.

October 1, 2015 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Tuesday, September 29, 2015

New papers looking closely (and differently) at offender-based sentencing considerations

I just noticed via SSRN these two new papers that take very different approaches to considering offender-based factors at sentencing:

September 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Monday, September 28, 2015

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

092715-wpvi-pope-bishop-prison-3-IMGThis local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

September 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1)

Sunday, September 27, 2015

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE.  A partial preview is available here via YouTube, where this summary of the show also apprears: 

VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].

In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.

The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.

It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.

"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.

In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.

America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.

"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."

The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Thursday, September 24, 2015

Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)

AP_pope_congress_10_mm_150924_31x13_1600I have finished watching the Pope's speech to a joint session of Congress, and these passages from the full text of the speech should be of special interest to sentencing fans (with my emphasis added at end):

Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions.  On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities.  Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation.  To respond in a way which is always humane, just and fraternal.  We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: "Do unto others as you would have them do unto you" (Mt 7:12).

This Rule points us in a clear direction.  Let us treat others with the same passion and compassion with which we want to be treated.  Let us seek for others the same possibilities which we seek for ourselves.  Let us help others to grow, as we would like to be helped ourselves.  In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities.  The yardstick we use for others will be the yardstick which time will use for us.  The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty.  I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty.  Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

These passages will surely be the focal point for those eager to advocate for the complete abolition of the death penalty, but the language of hope and rehabilitation never being excluded from "just and necessary punishment" is also significant as a criticism of sentences of life without the possibility of parole.

A few prior related posts:

September 24, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

"Pope Francis and the case for American criminal justice reform"

The title of this post is the headline of this notable new FoxNews commentary authored by Newt Gingrich and Pat Nolan.  Here are excerpts:

Pope Francis’s visit to the United States is attracting a flood of attention, and preparations have been underway for months in the cities and communities that will welcome him. While the pope will be greeted by thousands as he visits our nation’s famous landmarks and cathedrals, he has also planned a stop where the residents cannot come out to greet him: a local jail in Philadelphia. A jail isn’t a typical location for the fanfare that usually surrounds a papal visit, but Pope Francis’s decision to shine a spotlight on people in jail shouldn’t come as a surprise.

The pope has often implored us through his words and actions to treat the people we put in jail or prison with respect and mercy.  Some of those in jail have committed serious crimes, while others have committed relatively minor offenses. Many struggle with mental illness or drug addiction.  Many simply can’t afford to make bail.  Treating them justly and fairly is a strong Christian, and quintessentially Catholic, imperative.  After all, Jesus taught us to visit those in prison.  He also told us that what we do for the least of our brothers and sisters we do for Him.

When Pope Francis visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect.  Pope Francis continues the tradition of Catholic leaders urging us to offer hope and a second chance to prisoners....

The pope’s visit to the jail in Philadelphia will call attention to a part of our criminal justice system that receives too little notice: local jails.  Prisons are the focus of most of the discussion about criminal justice reform, even though 20 times more inmates (12 million) pass through our jails each year compared to our prisons.  The jail population is different from prisons because most jail inmates are nonviolent offenders awaiting trial, and innocent in the eyes of the law.

Indeed, many of those in jail don’t belong there.  One in six men and one in three women in local jails have serious mental illnesses — rates much higher than in the general public. These people are sick, not always bad.  They need treatment, not necessarily incarceration. Others are held in jail for months and even years because they don’t have the money to post a small bond.  For example, in New York City, almost a third of inmates in 2012 were held until trial because they could not pay a bond of $500 or less.

We see time and time again that overincarceration tears families apart by locking up fathers, mothers, brothers, and daughters mostly for minor crimes.  The vast majority of people in our jails are there for nonviolent offenses like traffic violations or drug use. When they are finally released, most have lost their jobs, which leaves them unable to support their families and puts stress on their loved ones and the community....

We have worked over the last decade to build conservative support for criminal justice reform, rooted in our political views as well as our faith.  Our Catholic beliefs hold that each person is a child of God and worthy of respect.  A cornerstone of the Catholic faith is that redemption is available to everyone, no matter what they have done. We are all sinners, and the ground is level at the foot of the Cross.

You don’t have to be a Catholic to see the importance of Pope Francis’s message.  When he visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect, and offer them a second chance to turn their lives around.

September 23, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (1)

Tuesday, September 22, 2015

"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"

Social2The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling.  In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:

In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.

While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.

In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.

That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”

This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.

Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.

Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.

Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.

There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.

September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?

The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:

After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday.  But today, Friday, he's still alive.  That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.

Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection.  But time and again, state officials and the legal system rejected his team's claims of innocence.

In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case.  The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty.  Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.

"Point to a single government program that works flawlessly.  Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.

The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment.  They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals.  Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death.  And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....

Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions.  After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.

Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska.  The latter two abolished capital punishment this year.  Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.

Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society.  It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.

September 21, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, September 20, 2015

"Risk Assessment in Criminal Sentencing"

The title of this post is the title of this notable new paper by John Monahan and Jennifer Skeem now available via SSRN. Here is the abstract:

The past several years have seen a surge of interest in using risk assessment in criminal sentencing, both to reduce recidivism by incapacitating or treating high-risk offenders and to reduce prison populations by diverting low-risk offenders from prison.  We begin by sketching jurisprudential theories of sentencing, distinguishing those that rely on risk assessment from those that preclude it.  We then characterize and illustrate the varying roles that risk assessment may play in the sentencing process.

We clarify questions regarding the various meanings of “risk” in sentencing and the appropriate time to assess the risk of convicted offenders.  We conclude by addressing four principal problems confronting risk assessment in sentencing: conflating risk and blame, barring individual inferences based on group data, failing adequately to distinguish risk assessment from risk reduction, and ignoring whether, and if so, how, the use of risk assessment in sentencing affects racial and economic disparities in imprisonment.

September 20, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Friday, September 18, 2015

Ohio judges pushing for "truth in plea bargaining"

My Columbus Disptach this morning has this notable new article about a notable new push for a new criminal procedure rule concerning plea bargaining practices here in the Buckeye state.  The article is headlined "Plea deals must reflect crime committed, judges demand," and here are excerpts:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape. “It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.”

With Donnelly leading the charge for change, the Ohio Supreme Court — unless legislators object — could amend court rules to require charges in felony plea deals to be factually based — to reflect what actually occurred. “Ending the charade” would promote transparency and foster public accountability in the justice system, Donnelly said. “We can be allowing pleas to something that everyone knows didn’t happen.”

The court’s rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state’s judges, is on board with the change, calling “often convenient” plea agreements “contrary to the objectives of the justice system.”

Advocates for sexual-assault victims also support the change, saying pleas to lesser, unrelated offenses leave victims’ trauma unacknowledged and victims feeling “like the justice system let them down.”

Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. “While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ” Prosecutors and defense lawyers, with the ultimate approval of judges, “have to have some freedom, some negotiating room. ... There’s give and take by both sides. Each side has its objectives. The law should permit them that liberty,” Wilford said.

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said. “Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013.

Franklin County Prosecutor Ron O’Brien agrees with Donnelly that plea deals “should resemble what the conduct was.” He and his assistants work to base plea agreements on the factual circumstances of cases and preserve sex-offender registration, often by using lesser and included “attempted” offenses, such as attempted rape, he said. “It’s been on everyone’s radar for a number of years. Anyone who has been doing it to an improper degree probably already has changed that practice,” O’Brien said.

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court’s criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. “If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, ‘Was there actually justice?’  ” Wolaver asked.

September 18, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Notable Left/Right morality accounting of the "Truth about Mass Incarceration"

Cover_20150921_tocProviding the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States.  The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full.  Here is an except from heart of the commentary, as well as its closing paragraph:

So the stock liberal charges against “mass incarceration” simply don’t hold water.  There is no racist conspiracy, nor are we locking everyone up and throwing away the key.  Most prisoners are guilty of violent or property crimes that no orderly society can excuse.  Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.

But just because liberals are wrong does not mean the status quo is right.  Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.  The criminal-justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets.  And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like.  As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities.  Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods.  Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims.  But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....

American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.

September 17, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, September 12, 2015

Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program

As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws.  Here are the details:

In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.  The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.

With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend.  The program has been praised and criticized since it began in 1999.  Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington.  They entered the program after completing prison sentences for sex crimes.

“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.

“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Those issues will be addressed soon in the remedy portion of the trial.  A hearing will be held Sept. 29.

“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005.  “It’s hard to describe after all that we have been through here.  Finally, we get some light at the end of the tunnel.”  The class-action lawsuit began in 2009.

Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...

Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool.  He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.  Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.

The judge agreed. In her ruling, she said the state of Missouri has not:

  • Performed annual reviews in accordance with the Sexually Violent Predator Act.
  • Properly implemented any program to ensure the least restrictive environment.
  • Implemented release procedures, including director authorization for releases, in the manner required by the law.

At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system.  In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.

While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society.  They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.

Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.  “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added.  “The setting would likely enhance their treatment and provide motivation.”  The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.

Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.  With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.

The full 60-page trial court ruling in this matter can be accessed at this link.

September 12, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

"Punitive Compensation"

The title of this post is the title of this intriguing new paper by Cortney Lollar now available via SSRN. Here is the abstract:

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation.

Unlike restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness present in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant.

The jury is the preferable fact-finder both because jurors represent the conscience of the community, and because the Sixth Amendment jury trial right compels this result. Nevertheless, many scholars and legislators remain reluctant to permit juries to determine the financial award in a particular criminal case. Courts and lawmakers share a common misperception that juries make arbitrary, erratic, and irrational decisions, especially in the context of deciding criminal punishments and punitive damages, both of which overlap conceptually with punitive compensation.

In debunking this narrative, this Article relies on empirical studies comparing judge and jury decision-making and concludes that juries are the more fitting fact-finder to determine the amount of punitive compensation to impose in a given case. Although anchoring biases, difficulties in predicting the duration and degree of a crime victim’s future emotional response, and poorly written jury instructions challenge juries, each of these impediments can be counteracted through thoughtful and conscientious systemic responses.

September 12, 2015 in Blakely Commentary and News, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, September 10, 2015

Notable passages showing Bill Otis sometimes agrees with criminal defense perspectives

I make Crime & Consequences a daily read because all the blog's contributors consistently make forceful and interesting points about crime and punishment.  Though I disagree with some perspectives (and especially some of the rhetorical flourishes) expressed at C&C, I especially appreciate efforts made by the C&C commentators to be thoughtful and forthright in expressing their views.  And, especially because I sometimes use this space to take on contentions made by Bill Otis, a few passages in a couple of recent posts have made me eager to spotlight Bill's embrace of positions (and funding commitments) typically associated with criminal defense attorneys rather than prosecutors.

For one example, on the topic of offender rehabilitation, Bill a few weeks ago had this post titled "Rehab Flops" noting this recent study about programming that made significant investment in employment-focused prisoner re-entry programs but resulted in "program group members [being] no less likely to have been convicted of a crime or incarcerated than control group members."  In reaction, Bill made these notable points (with my emphasis added):

First, genuine rehabilitation cannot come from a government program. It has to come from the inmate's heart. Once he decides he wants to change the way he deals with the world, he has a chance. Until then, he doesn't. The government is simply not wise enough to know how to make the fundamental change true rehabilitation requires, and I (for one) wouldn't want a government powerful enough to try.

Second, we should nonetheless increase our spending on rehab. The chances are low but the stakes are high. Almost every prisoner returns to civil society.  For his sake and for ours, every effort should be made to give him the best shot we can, even knowing the chances are poor.

For another example, on the topic of defense representation, Bill yesterday had this this post titled "Shocking Report: Defense Lawyers Find that Defense Lawyers Should Get More Money" noting the new NACDL report on federal indigent criminal defense discussed here.  Notwithstanding the snarky title of his post, Bill added this commentary that should warm the hearts of the authors of this report:

How to put an honest assessment of this "report?"  It's true.
Sorry to disappoint those waiting for the acid to be poured, but indigent defense counsel actually do deserve better pay and more resources.  (So do federal prosecutors, but that's another post).
I was an AUSA for 18 years, and it was my experience that federal defenders are underpaid for the quality of work they do.  They may be significantly underpaid....
Temperament varied quite a bit.  Some were there to insure the client got his rights protected and the government got put to its proof.  Some were there because they thought of the client as the Little Guy, the man who never had much of a chance in life.  Some were there because they had been fighting with authority figures since fifth grade.  And some were there because they thought you, the prosecutor, were a poorly disguised Nazi, and were happy to let you know it in every single court appearance.
Still, for whatever the attitude, the quality of representation ranged from plainly adequate to outstanding. They put in long hours.  In private practice, they would have made much more.
There is an unpleasant truth that we, as taxpayers, need to understand:  Justice isn't cheap.  This applies to the death penalty, incarceration, (attempts at) rehabilitation, and salaries for prosecutors and defenders.  If you want quality, sooner or later you have to pay for it.
The NACDL is right.  It's time to increase the compensation of defense lawyers.   

September 10, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, September 07, 2015

"The New Peonage"

The title of this post is the title of this notable new article by Tamar Birckhead now available via SSRN. Here is the abstract:

Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.”  Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt.  Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work.  Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants.  Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act.  Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.

This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.”  It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today.  Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families.  Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry.  Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment.  When low-income parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees.  For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice.  Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system.  The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece.  The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century.  It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles.  It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact.  The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.

September 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Friday, September 04, 2015

"American Criminal Record Exceptionalism"

The title of this post is the titel of this new paper by Kevin Lapp now available via SSRN. Here is the abstract:

In recent decades, criminal records have proliferated and come to be more consequential than ever. James B. Jacobs’s new book, THE ETERNAL CRIMINAL RECORD (2015), documents their broad scope, wide availability, and the long, devastating shadow that criminal records cast.

In this Review, I organize the material in this challenging book into three different claims about American criminal record policy: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent.  I explain how this results in an inexpensive means of sorting and inflicting punishment by devolving a great portion of the work to private actors and the general public.  It also presents a public policy conundrum for American criminal justice: the more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals.  This, it turns out, increases recidivism, therefore undermining the public safety goal at the heart of comprehensive, accessible criminal records.  To counter this perverse outcome, I marshal evidence and optimism for reforms that Jacobs considers either unattainable or unwarranted, including the possibility of juvenile justice policy serving as a blueprint for a more redemptive criminal record policy for all.

September 4, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

September 3, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, National and State Crime Data, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

Lots of ideas for Prez Obama for final criminal justice reform push

The fine folks at The Marshall Project got a lot of other fine folks to share their views here on what Prez Obama might usefully do in the criminal justice reform area as his time in the Oval Office winds down.  The piece is headlined "Obama’s Final 500 Days: People from across the political spectrum suggest criminal justice reforms the president should enact during his remaining time in office." There is a lot of food for thought (for both readers and Prez Obama) in the piece, and here are some of the headings used by the Marshall Project marking some themes:  

Prosecute the Prosecutors

Have Truly Smarter Sentencing

Release More Prisoners

Don’t Forget the Aftermath

Rethink Solitary

Create a Few Commissions

September 3, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"The simple truth about why mass incarceration happened"

The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s.  According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns.  From the late 1960s to the early 1990s, crime was unusually high.  The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence.  So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline.  But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime.  That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration.  It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime.  And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....

Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies.  But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today.  That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, September 02, 2015

"The Pressing Need for Mens Rea Reform"

The title of this post is the title of this notable new "Legal Memorandum" authored by John Macolm, who is the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Here is the abstract and "Key Points" from this publication:


One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws.  Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system.  Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished.  That is something that should concern everyone.

Key Points

1 Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.

2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist.  Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.

3 Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided.  If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.

September 2, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

"Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice"

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

In the recent capital trials of Dzhokhar Tsarnaev for the Boston Marathon bombings and James Holmes for the Colorado theater shootings, victims’ families were permitted to give testimony after the sentence had been announced.  Since victim impact testimony in capital cases was upheld by the Supreme Court on the ground that it provides important information to the sentencing jury, hearings after sentencing raise the question of what role the statements are meant to serve.

I argue that although victim impact testimony was originally justified as a means of providing information to sentencing juries, it is now regarded as having two additional purposes.  First, it is widely assumed that the statements serve a cathartic or therapeutic role for victims and their families; that they assist in obtaining “closure.”  Second, there is a growing tendency toward viewing the statements as a means of confronting the perpetrator in order to elicit remorse, or at least impress on him the gravity of the harm he has caused.  Each of these three rationales has different implications for the nature, scope and advisability of allowing victim impact statements.

In this chapter I examine what goals the statements are meant to serve, how those goals should affect the rules governing the statements, and whether the goals are practically achievable or normatively desirable.

September 2, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, September 01, 2015

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Charging on the Margin"

The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions.  In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation.  While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives.  This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors.  As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency.  In other words, prosecutors can sometimes gain more by charging less.  By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant.  Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration.  Changing this approach could have several salutary effects on the administration of collateral consequences.  At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, August 26, 2015

Nebraska group submits signatures to halt death penalty repeal and set up fascinating 2016 vote

As reported in this new AP article, the "organization campaigning to reinstate Nebraska's death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016."  Here is more:

Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state's counties. Nebraska's unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the first traditionally conservative state to do so in 42 years.

The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 percent of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.

"Nebraskans sent a strong message about crime and punishment in our state by signing this petition in extraordinary numbers," said state treasurer and former attorney general Don Stenberg, a co-chair of the petition drive....

Republican Attorney General Doug Peterson, who supports the death penalty, said in a statement that the signatures are "presumptively valid" until determined otherwise. Stenberg said no one will know the exact number of valid signatures for at least a month, but the state constitution makes clear that petitions go into effect on the day they're submitted.

Even if the law is suspended, Nebraska currently has no way to execute any of the 10 men on death row because its lacks two of the three required lethal injection drugs and has struggled to obtain them legally. The state paid $54,400 in May to order the drugs from a broker in India, but federal authorities have said they can't be legally imported.

Nebraska lawmakers voted by the narrowest possible margin, 30-19, to override Ricketts' veto. Ricketts assailed the Legislature as out of touch with the wishes of most residents. The repeal vote was helped by an unusual coalition of conservative state senators and more traditional death penalty opponents who had fought unsuccessfully for decades to eliminate the punishment. Some conservatives said they opposed it for religious and moral reasons, while others cast it as an inefficient government program that wastes tax money....

Nebraska hasn't executed an inmate since 1997, and has never done so using the state's current three-drug lethal injection protocol.

The announcement of the number of signatures caps an 82-day petition drive backed by Ricketts and his father, TD Ameritrade founder Joe Ricketts. The governor had given $200,000 to Nebraskans for the Death Penalty as of the last filing deadline on July 31, while his father had donated $100,000. The group raised a total of more than $652,000 from 40 individual donors and seven groups classified as businesses, political action committees and other entities.

The largest donation in July came from the conservative, Washington-based Judicial Crisis Network, which gave $200,000. Nebraskans for the Death Penalty relied on a combination of paid and volunteer petition circulators, and was aided by an Arizona-based strategist who specializes in ballot campaigns.

I find these developments fascinating, especially because it highlights that the symbolism of the death penalty seems so much more important to so many folks than the practicalities of the death penalty. Practically speaking, with no executions in nearly 20 years, the legislature's abolition largely made de jure what was already a de facto reality in the state. But that largely symbolic decision obviously troubled a lot of Cornhuskers (and motivated some folks to put some serious money into this issue), and now the issue will be decided by direct democracy rather than by representative democracy.

Because I am a huge fan of direct democracy, and especially because it will be very interesting to follow the Cornhusker capital campaigning (and its funders' capital contributions), I am pleased that this crime-and-punishment issue will now come before the voters in 2016. Sadly, because Nebraska is not likely to become a swing state in the broader presidential scene, I doubt the many wanna-be Prez candidates will feel compelled to weigh in on this "local" issue. But it still seems possible that this vote could make Nebraska a significant focal point in the (never-ending) national debate over death penalty policy and practices.

August 26, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Notable talk of crimnal justice reform at GOPAC State Legislative Leaders Summit

My local Columbus Dispatch has this notable article about notable policy message that was delivered to top GOP state lawmakers at a notable conference this week.  The article is headlined "Packing prisons not the answer, lawmakers told," and here are excerpts:

Meeting in a state where more than 50,000 people live in prisons built to hold about 39,000, Republican state lawmakers from across the country were told Tuesday that “tough on crime” must be replaced by a smarter approach to criminal justice.

“Conservatives recognize we have too many criminal laws,” said Patrick Purtill Jr., director of legislative affairs for the Faith and Freedom Coalition, told a room of GOP lawmakers attending the annual GOPAC State Legislative Leaders Summit, held this year in Columbus.

“We’re sending too many people to prison. We’re spending too much money to keep them there for far too long. And we’re doing too little to re-enter them into our communities. It’s becoming increasingly clear that over-criminalization and over-incarceration are making our communities less safe.”

Republicans are leading the country on criminal-justice reform, said David Avella, chairman of GOPAC, a national group that grooms Republican lawmakers and candidates and provides forums for the sharing of conservative policies. “If you want to look at how we heal some of the divisions our country faces right now, this is a winning issue for us,” he told the conference, which runs through Thursday.

The Faith and Freedom Coalition is one of seven organizations stretching across the ideological spectrum that is partnering with the U.S. Justice Action Network to implement laws that reduce prison populations, implement more rational criminal penalties, and do more to help inmates re-enter society.

Ohio, along with Pennsylvania and Michigan, currently are the Action Network’s three target states for criminal justice reform. The group is working with Ohio lawmakers such as Senate President Keith Faber, R-Celina, and Rep. Barbara Sears, R-Sylvania. “These reforms make us safer. They’re not just cost-saving measures,” said Holly Harris, executive director of the Justice Action Network, pointing to Pew Chartable Trusts data that shows states with the biggest drops in prison populations also are seeing some of the greatest decreases in crime rates....

Faber, an attorney and former probation officer, told the [Ohio legislature's] Recodification Committee in June to “ swing for the fences.” He told GOPAC attendees that he knows Republicans have traditionally approached criminal justice with a “tough on crime” attitude. “This isn’t about making sure the bad guys get out earlier,” he said. “But we need room for the really bad guys, and the question is what do we do about the people that aren’t so bad?”

Faber hopes the committee will have recommendations by next summer. “One of the things I hope we do is give judges discretion back,” Faber said. “Another thing we need to look at is making that finer line between what is a felony and what isn’t. I also hope they look at what we need to increase the penalties for to stop that recidivism cycle.”

August 26, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, August 25, 2015

"Federalism in Action: How Conservative States Got Smart on Crime"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Monday, August 24, 2015

Aurora victims present a "parade of pain" at on-going James Holmes sentencing proceedings

One of many benefits I see in giving crime victims certain rights in the criminal justice system is to ensure their voices are heard and their experiences are memoralized in courtroom proceedings even when those voices and experiences may not directly impact sentencing outcomes. In turn, I think it now worth highlighting the on-going proceedings in a Colorado courtroom that are effectively and potently reported in this CNN piece headlined "A parade of pain at James Holmes sentencing." I recommend reading the whole piece, and here are excerpts:

One by one, the wounded and the grieving are telling a Colorado judge how the Aurora movie theater gunman stripped the normal from their lives. Some are sobbing, some are angry. All are shattered by loss. It is a parade of pain that will not change the sentence for the 27-year-old shooter. James Eagan Holmes will spend the rest of his life behind bars.

But the inevitable outcome didn't stop the grieving grandfather of the gunman's youngest victim from making a suggestion: "I would challenge the murderer to do the right thing for once in this trial and petition the court for execution by firing squad," said Robert Sullivan.

He was the doting grandfather of 6-year-old Veronica Moser-Sullivan, who had innocent, shining brown eyes. Her pregnant mother, Ashley Moser, was shot and paralyzed.

Moser said she was looking forward to being a mother of two, but now she's nobody's mommy. She needs constant nursing care. She said she wished Holmes could be sentenced to life as a quadriplegic, just as she and two other shooting victims are. More than 40 people gave victim impact statements on Monday, and at least 40 more are expected on Tuesday....

[M]any of the victims say they feel cheated, and they appeared to seek comfort in demonizing a defendant who took so much from them. A man whose son was gunned down in the theater referred to Holmes' schizophrenia as "a mental hangnail" and said he was disgusted during the trial by his "smirk." He called Holmes' attorneys "horrible people" and said they "fabricated a defense" to pad their resumes.

Beth Craft, whose brother John Larimer was killed, said, "The defendant may be mentally ill, but he is more evil than anything else."...

The trial, Kathleen Pourciau said, was like watching someone get away with something. It felt out of whack, unbalanced. It didn't feel like justice.

"When justice isn't served, there's a brutal message delivered to the victims," she said. "When the punishment doesn't fit the crime, the message to the victims is that your loss, your pain isn't important. The message was that the state of Colorado values the life of a mass murderer more than the people he murdered.

"How many people do you have to kill to get the death penalty?" Pourciau asked. "Why do you even have a death penalty if you don't use it? What signal does this sentence send to Bonnie Kate and others? We care, but not that much?"

A sentence of 12 life terms topped by hundreds of additional years behind bars is "absurd," she added, "the judicial equivalent of beating a dead horse."

August 24, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15)

Saturday, August 22, 2015

"Guns and Drugs"

The title of this post is the title of this notable new paper by Benjamin Levin now available via SSRN. Here is the abstract:

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law.  To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.

The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration.  Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.

Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

August 22, 2015 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Friday, August 21, 2015

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, August 18, 2015

Lots and lots of good summer reads about US criminal justice problems

Among the many benefits I see in lots more political and policy attention to mass incarceration and broader American criminal justice concerns is the presence of lots more thoughtful (old and new) media coverage of problems in current US policies and pactices.  Here are just a few examples of both news coverage and commentary catching my eye early in this mid-summer week:

August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Friday, August 14, 2015

In Ohio, "State prisons chief calls for softened hearts"

The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:

Ohio’s prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population.  Too often an “us vs. them” mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.

“Our hearts need to be softened to some degree,” said Mohr, director of the Department of Rehabilitation and Correction.  “We have to think about the sense of forgiveness.” When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates.  The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.

The state’s incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee.  Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.

Society’s tough-on-crime attitude doesn’t match statistics showing violent crime at historic lows, he added.  But Mohr also sees signs of optimism as commitments from the state’s biggest counties drop thanks to the growth of community alternatives in urban areas.  The next challenge is extending such programs to the 82 counties where commitments have increased.  The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.

Among other issues Mohr said:

• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.

• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.

• The high population of some Ohio prisons raises security concerns.

Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options.  At the same time, the state’s painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.

August 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, August 13, 2015

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, August 12, 2015

"Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform"

The title of this post is the title of this interesting paper available via SSRN authored by Janet Moore, Marla Sandys and Raj Jayadev. Here is the abstract:

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration.  This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems.  After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives.

First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard.  Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy. 

August 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, August 11, 2015

"Does Plea Bargaining Add to Criminal Court Caseloads?"

The question in the title of this post is the title of this new commentary by LawProf Darryl Brown at Casetext.  Here are excerpts:

Crime rates have been declining for twenty years, and more recently the caseloads in many state and federal courts have been declining as well, although somewhat more modestly. Yet as courts got a little breathing room, the rate of guilty pleas has not declined. Instead, in the federal system and some states, guilty pleas increased—usually from an already-high rate (as a share of total convictions) of 90 or 95 percent.  To legal scholars who have examined plea bargaining for decades, this was not a surprise.  Studies of courts in the 1970s found that plea bargaining did not decline even when caseloads for a local court system sharply fell, leaving prosecutors and judges with proportionately more time to handle the rest.  Federal plea bargaining, it now seems clear, increased as prosecutors gained more bargaining leverage from mandatory sentencing laws and federal guidelines that greatly restricted judges’ sentencing discretion.

Plea bargaining, in short, is not simply of function of crime rates and the criminal caseloads that result from them. It depends many things: whether the parties want to reach a deal, strength of the evidence, and — far from least — how much bargaining leverage the law gives to prosecutors. To say merely that “plea bargaining is essential” begs the real question.  It doesn’t answer whether all plea bargains we now achieve — 95 percent in federal courts — are compelled by caseloads and strapped budgets.  Plea bargaining may be essential, but how many — or what percentage of — cases must be resolved by guilty pleas rather than trials?...

Discretionary decisions play out differently when courts and prosecutors can handle more cases thanks to the efficiency of plea bargaining.  If it doesn’t “cost” as much to charge and convict, it is more tempting to do so.  Police know courts can process some additional petty offenses, and prosecutors know that they can handle more as well.  This doesn’t have to be a conscious recognition in every officials’ mind ... [but] plea bargaining helps to create a new set of norms or baselines — about how many cases prosecutors and judges ought to handle, about which defendants ought to plead guilty, and perhaps about which events deserve to be charged as crimes.  Cases with evidence so weak that a trial conviction is highly uncertain now look worth the effort because, with hard-ball right plea bargaining, they can be turned into convictions.  After years of achieving 95 percent of convictions through guilty pleas, a court system that suddenly had trials in 15 percent of cases would look like it is doing something wrong.  The defendants who insisted on those additional trials would seem like ones whose cases didn’t “deserve” a trial and, consequently, that merit a harsher sentence because they had one.

All of these things are hard to measure.  Empirical researchers have not yet demonstrated that plea bargaining actually drives up the number of cases in criminal courts.  It may be the kind of phenomena that simply can’t be reliably measured. But ... recall that criminal caseloads continue to increase long after crime began to decline in the early 1990s.  More tellingly, Professor John Pfaff has found that evidence that, in many states, prosecutors file charges a higher percentage of cases they receive from police than they did twenty or thirty years ago.  That is, they use their discretion less often to decline to prosecute.  Reasons for this are unclear.  Maybe police now collectively send prosecutors case reports backed by stronger evidence.  Maybe the current generation of prosecutors has tougher-on-crime views than the previous generation did.  But we ought to be concerned that we have made plea bargaining so common, and so efficient, that its effect has not simply been to enable the criminal justice system to process more cases without more judges and prosecutors.  There is a good chance that plea bargaining has also increased the number of criminal cases in the system.

That might be good thing if crime was increasing.  Or if we simply couldn’t afford to increase funding for prosecutors and judges at the same that we do for police and prisons.  Or if we placed no social and political value on trial by jury.  But none of that is true.  What is true is that, as we have increased the rate of guilty pleas from already high levels of 75 or 85 percent of convictions to 90 or 95 percent, the United States also created the single most punitive criminal justice system, with by far the highest incarceration rate, in modern world history.  That alone ought to be reason to worry that our exceedingly efficient system of plea bargaining has triggered “rebound effects.”

August 11, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Friday, August 07, 2015

"What We Learned From German Prisons"

The title of this post is the headline of this notable New York Times op-ed authored by Nicholas Turner, president of the Vera Institute of Justice. and Jeremy Travis, president of John Jay College of Criminal Justice. Here are excerpts:

Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.

The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers.  They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with.  The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs...

This is an encouraging moment for American advocates of criminal justice reform. After decades of callousness and complacency, the United States has finally started to take significant steps to reverse what a recent report by the National Research Council called a “historically unprecedented and internationally unique” experiment in mass incarceration. Congress, in a bipartisan effort, seems prepared to scale back draconian federal sentencing laws. Many states are making progress in reducing their prison populations. And President Obama, in a gesture of his commitment to this issue, last month became the first American president to visit a federal correctional facility.

The delegation that we took to Germany represented the emerging national consensus on this issue. It included a Democratic governor; corrections officials from across the political spectrum; chief prosecutors; formerly incarcerated individuals; a liberal scholar of race and criminal justice; and representatives from Right on Crime and the Charles Koch Institute, conservative groups that advocate reform, as well as the evangelical Christian group Prison Fellowship.

But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.

While the United States currently incarcerates 2.2 million people, Germany — whose population is one-fourth the size of ours — locks up only about 63,500, which translates to an incarceration rate that is one-tenth of ours. More than 80 percent of those convicted of crimes in Germany receive sentences of “day fines” (based on the offense and the offender’s ability to pay). Only 5 percent end up in prison. Of those who do, about 70 percent have sentences of less than two years, with few serving more than 15 years.

The incarcerated people that we saw had considerable freedom of movement around their facilities and were expected to exercise judgment about how they used their time. Many are allowed, a few times a year, to leave the prison for a few hours or overnight to visit friends and family. Others resided in “open” facilities in which they slept at night but left for work during the day. Solitary confinement is rare in Germany, and generally limited to no more than a few days, with four weeks being the outer extreme (as opposed to months or years in the United States).

The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.

Germans, like Americans, are greatly concerned with public safety. But they think about recidivism differently. During our visit, we heard prison professionals discussing failure in refreshingly unfamiliar terms: If, after release, an individual were to end up back in prison, that would be seen as a reason for the prison staff members to ask what they should have done better. When we told them stories of American politicians who closed a work-release or parole program after a single high-profile crime by a released inmate, they shook their heads in disbelief: Why would you close an otherwise effective program just because one client failed?...

The first article of the German Constitution reads, “Human dignity shall be inviolable.” Granted, our own Constitution bans cruel and unusual punishment and protects individuals against excessive government intrusions. As was noted by the Supreme Court justice Anthony M. Kennedy in a landmark 2011 opinion ordering California to reduce its prison population: “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment.”

These words hold much promise, but currently they have far too little impact on actual conditions in American prisons. In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.

The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.

August 7, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Thursday, August 06, 2015

Is it now ungodly to oppose significant sentencing and prison reform?

The question in the title of this post is prompted by this notable recent Crux commentary authored by Jacob Lupfer headlined "There’s a truly religious consensus on prison reform." Here are excerpts:

In an era when most faith groups’ political priorities align predictably with the two major parties, it is refreshing to behold a truly diverse religious consensus on an issue....

The budget-busting prison-industrial complex was politically popular for a time, but in the past decade the pendulum has begun swinging the other way.  Harsh sentences, particularly for nonviolent drug offenders, created unsustainable fiscal pressures.  States simply cannot afford to house more prisoners and pay the salaries and benefits of employees to supervise and care for them.

Already, states are taking steps to spend less on “corrections.”  Fiscal conservatives now view prisons as overly expensive, hugely inefficient, bloated bureaucracies.  Yet Christians and other people of faith see problems, too.

America’s denominations and faith organizations are calling for reform.  Our vast criminal justice system emphasizes punishment over rehabilitation, while our faith traditions preach redemption.  Citing Isaiah 61, Jesus announced that his gospel would include “release for the captives” (Luke 4:18).  It seems wrong for a Christian conscience to support needless incarceration.

Catholics were early leaders in promoting restorative justice, the idea that communities must help ex-offenders re-enter society in healthy and productive ways.  The US Conference of Catholic Bishops issued a major pastoral statement in 2000 that placed criminal justice issues in the context of social ills, including family breakdown, violence, racial disparities and the perverse incentives of for-profit prisons.

Once a powerhouse in ecumenical Christian political influence, the National Council of Churches has reinvented itself as a smaller, more focused agency. Yet it has made mass incarceration its top advocacy priority.  NCC President Jim Winkler has a provocative idea. “If churches want to see revival,” he told me last year, “they should pick up released prisoners and help reintegrate them into their communities.” Criminal justice reform is not just an issue. It is essential to the gospel: Redeemed sinners proclaiming mercy in the name of Jesus Christ....

Leaders from Catholic, mainline, and black Protestant traditions have been sounding this refrain for years. But the growing consensus among white evangelicals and Republican officeholders may finally make sentencing reform an urgent and truly bipartisan imperative.  The National Association of Evangelicals, known to be more active on non-sex-related issues than other religious conservatives, has spoken strongly of the need for criminal justice reform....

Until recently, disparate groups have worked on the issue largely independently.  That is changing.  In 2014, Congress appointed a committee to study the feasibility of reform among federal prison populations, whose growth threatens other federal law enforcement and funding priorities. The committee is called the Charles Colson Task Force on Federal Corrections.  Earlier this year, the task force sought input from faith leaders and saw unprecedented agreement across traditions and enthusiastic support for reform....

Sentencing and prison policy is more easily seen as a boring bureaucratic issue. Even though millions are incarcerated, most Americans know zero or one person in prison. Yet faith communities are adding urgency to the imperative for prison and sentencing reform, even as they remain divided on the death penalty (for now).

In the end, fiscal constraints will force changes in prisons and sentencing if moral concerns do not.  It seems better to make these changes out of a warm-hearted, merciful impulse than through cold fiscal realities.  The faith community can credibly speak with one voice on criminal justice reform, and that voice must be heard.

August 6, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, August 04, 2015

Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson

A helpful reader altered me to a significant post-Johnson ruling today by the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here).  Price, which some ACCA prisoners may come to consider priceless, authorizes a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 to bring a new, successor 2255 motion based on the Johnson ruling.  Here are a few key passages from this notable ruling: 

Price now asks this court to authorize the district court to entertain a successive collateral attack, 28 U.S.C. § 2244(b)(3), in which he proposes to assert a claim under Johnson v. United States, 135 S. Ct. 2551 (2015).  Johnson holds that the imposition of an enhanced sentence under the residual clause of ACCA violates due process because the clause is too vague to provide adequate notice. Id. at 2557.  We invited the government to respond, and it has done so. We now conclude, consistently with the government’s position, that Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions....

Johnson, we conclude, announced a new substantive rule.  In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited “a certain category of punishment for a class of defendants because of their status.”  Saffle, 494 U.S. at 494.  A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.”  Summerlin, 542 U.S. at 352.  There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review.  Because Price has made a prima facie showing that he may be entitled to sentencing relief under Johnson, we GRANT Price’s application and AUTHORIZE the district court to consider a successive collateral attack presenting this claim.

We add a cautionary note in closing.  Our review of Price’s substantive claim is necessarily preliminary, and as we just noted, our holding is limited to the conclusion that Price has made a prima facie showing of a tenable claim under Johnson.  The district court will have the opportunity to examine the claim in more detail as the case proceeds. That court is authorized under § 2244(b)(4) to dismiss any claim that it concludes upon closer examination does not satisfy the criteria for authorization.  The judge is likely to be familiar with the case (or to become familiar easily) because § 2255 motions must be filed in the applicant’s sentencing court, which has access to the criminal record and familiarity with the case.  Our conclusions are tentative largely because of the strict time constraints under which we must review these applications. Tyler, 533 U.S. at 664 (“It is unlikely that a court of appeals could make such a determination in the allotted time [30 days] if it had to do more than simply rely on Supreme Court holdings.”).  For example, we do not know whether Price has other qualifying convictions that were not considered at sentencing because, at that time, the three on which the court relied were sufficient.  If he is successful in vacating his sentence under Johnson, the parties will be free to argue this and any other pertinent questions on resentencing.

August 4, 2015 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

AG Lynch and Secretary Duncan make pitch for Pell Grant pilot program for federal prisoners

628x471Attorney General Loretta Lynch and Secretary of Education Arne Duncan have this notable new USA Today op-ed under the full headline "To cut crime, turn jailbirds into bookworms: We need a prison to productivity pipeline." Here are excerpts:

Few interventions have been shown to reduce recidivism and prepare people in prison to lead law-abiding, productive lives like access to quality postsecondary education and training. The benefits of investing in these opportunities, which also include improved employment outcomes, extend to the individual and to society. In a study funded by the Justice Department’s Bureau of Justice Assistance, RAND Corporation estimated that incarcerated individuals who participate in correctional education are 43% less likely to return to prison within three years. And for every dollar invested in correctional education programs, five dollars are saved on re-incarceration costs. A recent report from the President’s Council on Economic Advisors notes the annual cost of incarceration for a single juvenile is over $100,000 — almost twice as high as tuition, room and board and fees at the most expensive college in the country and nearly 100 times as expensive as a year of intensive mentoring.

Nearly every person behind bars will one day leave prison — approximately 700,000 annually. Setting these Americans up for success is smart economics and a critically important investment in our future.

Unfortunately, for many incarcerated individuals, this type of life-changing opportunity is unavailable. In 1994, Congress amended the Higher Education Act to ban incarcerated individuals in federal and state penal institutions from accessing Pell Grants, which could be used to help qualified inmates pay for college classes or training. This ban was passed despite the fact that higher education has been shown to reduce recidivism and despite the fact that incarcerated students made up less than 1% of all Pell Grant recipients.

The Obama administration has taken an important step toward helping people in prison contribute to the economy, transition back into their communities and stay out of the justice system after they reenter society. The Department of Education announced a new Pell Grant Experimental Site program that will allow a limited number of incarcerated individuals to be eligible to receive Pell Grants to pay for education and training programs from colleges and universities. The Department of Justice is providing technical assistance to the correctional facilities under the pilot program. We will test how restoring Pell Grant eligibility could affect educational and other outcomes. This pilot will not prevent any eligible Pell recipient from receiving a grant. What we learn will inform our efforts — and the efforts of states and localities — moving forward in this area....

By preparing these learners to achieve their academic and career goals, we strengthen the families and communities that depend on their success. And that is fundamentally good for America.

August 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

"Should prison sentences be based on crimes that haven’t been committed yet?"

The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing.  The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes.  As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science.  The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record.  They are now used at some stage of the criminal justice process in nearly every state.  Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself.  A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely.  Those deemed high risk could spend more time behind bars....

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Thursday, July 30, 2015

"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"

The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:

Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment.  Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided.  The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule.  The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive.  However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner.  I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature.  The Miller decision has sparked a transformation in juvenile sentencing across the country.  Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles.  Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages.  Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively. 

July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Recent capital developments prompts query: "Is the death penalty dead in Washington?"

The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state.  Here are the details:

Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.

"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.

Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.

"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."

"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."

Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.

July 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)