Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

The Sentencing Project spotlights major criminal justice reform stories of 2015

The Sentencing Project is an extraordinary public policy group that does some of the most effective and important criminal justice reform research and advocacy.  I received via e-mail this letter from The Sentencing Project about its latest publication and its impressive recent:

This year, we have seen an emerging national consensus for criminal justice reform.  At The Sentencing Project, we’ve been proud to have contributed to this shift, as we have for more than a quarter century. Our 2015 annual newsletter contains highlights of criminal justice reform activities this year, including:
  • A look at the major reform developments in Washington, including the bipartisan Sentencing Reform and Corrections Act, introduced in the Senate this fall
  • Successful reform efforts at the state level, including scaled back bans on public assistance for people with felony drug convictions in Alabama and Texas
We have had a wonderful year, and we look forward to continued success in the year ahead. 

December 10, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, December 09, 2015

"Decriminalizing Drugs: When Treatment Replaces Prison"

The title of this post is the headline of this lengthy New York Times commentary piece authored by Tina Rosenberg, which gives extended attention to Portugal's experience with drug decriminalization. Here are extended excerpts:

If one of my children were a drug addict, what would I want for him?

I would want what any parent would: for his addiction to be treated as a health problem, not a criminal matter, and for him to have every kind of help possible to get him off drugs. Until that happened, I would want him to be able to manage his addiction and live a normal life by taking methadone or another substitute opioid. And until that happened, for him to stay as safe as possible from overdosing, developing H.I.V., or going to prison, which would irrevocably alter the course of his post-addiction life.

What’s significant about the question is not how I would answer, but the probability that I might be asked it at all. Because I am white and middle class, society would view my addict child as a sick person who needed help. If I were African-American and poor, he would most likely be seen as a criminal to be locked up. And no one would be interested in what I wanted, or what was best for him....

New England and Appalachia have been hit particularly hard by the heroin and opioid epidemic in the United States, but all across the country, policies are emerging that treat drugs as a health problem instead of a crime. Conservative politicians who once called needle exchange the devil’s work are now establishing them in their cities. Police officers now carry naloxone, a drug that instantly reverses overdoses, and are saving lives on a daily basis. Cities all over the country are copying Seattle’s Law Enforcement Assisted Diversion program, in which police officers put low-level drug offenders into treatment and social services instead of jail. It is hard to imagine Congress decriminalizing drugs, but easy to imagine that soon, any debate at the national level may be irrelevant.

Where will that take us? We can look at what happened in various countries that have decriminalized drugs. Portugal has gone the furthest. It decriminalized the personal use of all drugs (dealing and trafficking are still crimes and use remains illegal) in 2001. Its program is the most comprehensive and the best-studied. At the turn of the century, Portugal was drowning in heroin and had the worst H.I.V. rates among injecting drug users in Europe. The country had responded with harsh drug laws, which had not helped. Indeed, the laws drove many users underground.

On July 1, 2001, Portugal reversed course, decriminalizing possession of less than 10 days’ supply of any drug. That’s not legalization. But the penalties have been made administrative, not criminal. When the police catch people using or possessing drugs, the drug is seized. Within 72 hours, the user meets with what is called a dissuasion commission. The commission has social workers and psychologists who use the police report and assess the drug user and his needs. Then the user comes before a dissuasion panel; Lisbon’s, for example, has a sociologist, a lawyer and a psychologist.

The panel can simply warn a user, or send him to appropriate social or health services — including drug treatment if the user is an addict.  Nuno Capaz, the sociologist on Lisbon’s panel, said that users were punished only if they refused to go or they were repeat offenders.  The punishment can be a fine, community service, or supervision by a local agency.

Decriminalization doesn’t work alone. “You need to invest heavily in public health response,” said Niamh Eastwood, executive director of Release, a British organization. “The success of Portugal is not just a model of law reform, but also significant harm reduction and a public health response. The whole package should be deployed.” “Decriminalization is easy,” said Capaz. “You write down that if people are caught doing illegal things, the sanctions are administrative and not criminal. The hard part is making treatment available. It works for us because it works with our health care system — drug users who want treatment can get it for free.”

As it changed its laws, Portugal set up prevention campaigns, harm-reduction measures such as needle exchange that make drug use safer, and treatment services. Although drug-free treatment is available, Portugal relies heavily on methadone and other opioid substitution therapy to gradually wean users away from drugs. Hyper-controversial when it first started, Portugal’s program is now widely accepted.  When global recession hit in 2008, the country’s health, housing and employment programs were severely cut. That may have affected its drug policies, but when drug programs themselves were cut — mostly outside of Lisbon — the losses were less than in other programs, Capaz said. Their success largely protected them, and politicians knew that cutting treatment or prevention services would only cost more later.

With those caveats, here’s what’s happened in Portugal:

Overdose deaths — down by 72 percent....

Spread of H.I.V. — down by 94 percent....

Drug crime and imprisonment — down, by definition....

Drug use — mixed....

Portugal is far from alone. At least 25 countries have decriminalized some drugs, mostly cannabis. A few countries in Europe did so in the 1970s — or had never criminalized drugs at all. But in the last 10 years more have joined in Europe and Latin America, and other countries that have not decriminalized have nevertheless softened their policies to emphasize public health and harm reduction.... The tragic exception to the trend is Russia, where even methadone is still illegal. Russia’s cruelty towards drug users is the main reason the country’s epidemic incidence of H.I.V. has doubled in the last five years....

The most surprising endorsement of decriminalization came last month from the United Nations Office on Drugs and Crime, which had always taken a hard-line approach to drugs. At a harm-reduction conference in Malaysia, the agency released a paper that began: “This document clarifies the position of UNODC to inform country responses to promote a health and human rights based approach to drug policy.” It lays out the case for decriminalization and harm reduction. (Branson put the paper on his website.)

As soon as the paper came out, the agency drew back. The author was supposed to speak at the conference, but didn’t. A spokesperson for the agency said the paper was “neither a final nor a formal document….and cannot be read as a statement of UNODC policy.” It’s not clear why the agency retreated, but in the past, the United States has pressured international organizations to retract documents that propose a softer line.

Other countries that have decriminalized have largely echoed Portugal’s results, seeing big improvements in avoiding deaths, disease and imprisonment, but very little effect on usage. Two recent British studies examined the effects of drug policy on drug use in different countries. The nongovernmental organization Release looked at decriminalization’s effects in 21 countries, and found no statistically significant increase in levels of drug consumption. Britain’s Home Office published a study last year of drug policies and their effects in countries around the world. “We did not in our fact-finding observe any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country,” the report concluded.

For all its advantages, decriminalization fails to alleviate many harms that come from drugs — its lack of impact on usage is one example. “Decriminalization doesn’t deal with the supply-side issues,” said Eastwood. “It doesn’t really undermine all the negative consequences from the illicit market. It doesn’t reduce violence. It doesn’t affect drug purity.” Indeed, the inconsistent purity of heroin is a big contributor to overdose deaths. In short, decriminalization is not a good solution to the drug problem. It’s just a better solution than the one we’ve got. 

December 9, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Saturday, December 05, 2015

Have conservatives been "manipulated" and "duped" by abolitionists to oppose the death penalty?

The question in the title of this post is prompted by statements in the final paragraph of this lengthy American Thinker commentary authored Aaron J. Veselenak and headlined "Some Reading for Conservatives Who Oppose the Death Penalty."  I recommend the full piece, and here is how it starts and ends:

In recent years, opponents of capital punishment have leveled key criticisms against conservatives, claiming major hypocrisy in their continued approval of society's most serious criminal sanction.  One claim is that conservative support for the death penalty violates the most central tenet of conservatism — that of limited government.  How can conservatives, they ask, in their suspicion of and disdain for large, powerful government, advocate use of the greatest governmental power of all, the taking of life?  Contradiction — indeed, hypocrisy — is said to exist.

This charge is faulty, even bogus.  Unfortunately, this and other equally faulty charges have resonated with certain members of the conservative movement, among them state and federal lawmakers.

Why is the above claim so faulty, in fact lacking of substance?  The answer lies in the fact that conservatives are not anarchists.  Yes, conservatives do believe in very limited size and power of government.  However, that does not mean they abandon the most basic functions of government, chief among them protection of the people through military and police powers.  Or a court and penal system to further provide safety and administer justice....

Conservatives jumping on the anti-­death penalty bandwagon in recent years need to rethink their position.  They have been manipulated — duped by the seemingly sound and logical statements of death penalty opponents.  Deeper reflection demonstrates these claims to be very shallow and without merit.

Perhaps because I hang out and interact with a number of pretty bright people with an array of views on an array of criminal justice topics, I am disinclined to believe that conservatives who oppose the death penalty are being convinced by "very shallow" claims or are subject to being manipulated or duped by death penalty opponents.  Nor do I think one need to be drawn in by appeals to anarchy or libertarianism to have conservative-based concerns about the operation of modern death penalty in the United States.

Rather, I think one readily can embrace a strong belief/commitment to a government focused on the "protection of the people through military and police powers [and] a court and penal system to further provide safety and administer justice" while still voicing considerable disaffinity for the modern death penalty.  This disaffinity would be based on the (seemingly conservative) perspective that the governments often, even when trying really hard to be effective in its core functions, far too often end up doing more harm than good (and at an excessive cost to taxpayers).  Even apart from concerns about government dysfunction showcases by wrongful convictions (which I assume trouble conservatives as much if not more than liberals), the governmental mess we have recently seen in Oklahoma with the mixing up of execution drugs or states previously relying on unqualified executioners or even evidence of racial disparities in capitl application could all seemingly provide a principled basis for principled conservatives to conclude the government (especially state governments) ought not still be in the business of killing its killers.

December 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

Friday, December 04, 2015

"The Injustice of the Plea-Bargain System"

The title of this post is the headline of this op-ed authored by Lucian Dervan and appearing in today's Wall Street Journal. Here are excerpts:

The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system.  With incarceration rates in the U.S. five to 10 times higher than in Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes.  Yet none directly addresses plea bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty....

Even in cases without mandatory sentences, it is common for sentences handed down after trial to be far more severe than those offered to induce guilty pleas.  This “trial penalty” is weighed by thousands of defendants each day when considering whether to accept a plea offer.

A 2013 Human Rights Watch study found that the average federal drug sentence for defendants who proceeded to trial in 2012 was three times longer — an increase of 10 years — than for defendants who pleaded guilty.  In that study, a federal judge in New York described the sentences defendants face if they reject plea offers as “so excessively severe, they take your breath away.”  Not surprisingly, the great majority of convictions come from guilty pleas.  According to the U.S. Sentencing Commission, over 97% of convictions in the federal system arise from guilty pleas; state systems aren’t far behind at about 95%.

There are numerous documented cases of innocent defendants pleading guilty, including well-known examples such as Brian Banks.  In 2002, at the age of 17, Mr. Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of seven years in prison.  If he rejected the offer and lost at trial, he faced 40 years to life in prison.  He took the deal and falsely confessed.  In 2012, after definitive evidence of his innocence came to light, a California court reversed the conviction.

The Supreme Court established the constitutionality of plea bargaining in Brady v. United States (1970).  But the court warned that it would have “serious doubts” if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”  Sadly, the trial penalty has done just that.

December 4, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

Wednesday, December 02, 2015

"The Promises and Perils of Evidence-Based Corrections"

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

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years.  After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed.  Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs.  These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.

Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state.  In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.

Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control.  Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.

December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Two very different (and very depressing) stories that are distinct imprints of drug war carnage

31-moma_cotc_7.01.02schneiderwarisnothealthyThe famous image uploaded with this post has a message that has stuck with me since I first saw it many decades ago.  And that message, highlighting the unhealthy carnage that always results from war, quickly came to mind as I notices these two distinct must-read stories this morning.  Here are the headlines/links and key paragraphs from both stories:

"Leaked Documents Reveal Dothan Police Department Planted Drugs on Young Black Men For Years, District Attorney Doug Valeska Complicit":

The Alabama Justice Project has obtained documents that reveal a Dothan Police Department’s Internal Affairs investigation was covered up by the district attorney. A group of up to a dozen police officers on a specialized narcotics team were found to have planted drugs and weapons on young black men for years.  They were supervised at the time by Lt. Steve Parrish, current Dothan Police Chief, and Sgt. Andy Hughes, current Asst. Director of Homeland Security for the State of Alabama.  All of the officers reportedly were members of a Neoconfederate organization that the Southern Poverty Law Center labels “racial extremists.”  The group has advocated for blacks to return to Africa, published that the civil rights movement is really a Jewish conspiracy, and that blacks have lower IQ’s.  Both Parrish and Hughes held leadership positions in the group and are pictured above holding a confederate battle flag at one of the club’s secret meetings.

The documents shared reveal that the internal affairs investigation was covered up to protect the aforementioned officers’ law enforcement careers and keep them from being criminally prosecuted.  Several long term Dothan law enforcement officers, all part of an original group that initiated the investigation, believe the public has a right to know that the Dothan Police Department, and District Attorney Doug Valeska, targeted young black men by planting drugs and weapons on them over a decade.  Most of the young men were prosecuted, many sentenced to prison, and some are still in prison. Many of the officers involved were subsequently promoted and are in leadership positions in law enforcement. They hope the mood of the country is one that demands action and that the US Department of Justice will intervene.

"How Big Pharma Gave America Its Heroin Problem: OxyContin, designed for cancer pain relief, became the drug prescribed for back and tooth aches":

As addiction specialists look back on the current heroin addiction crisis — which the U.S. Center for Disease Control and Prevention calls the "worst drug overdose epidemic in [US] history" — most agree that the whole operation started out as the sort of marketing scheme Don Draper might have dreamed up. "[The marketing effort for opioid sales] was a promotional campaign unlike we have ever really seen," says Dr. Andrew Kolodny, the chief medical officer for the Phoenix House treatment centers and co-founder of Physicians for Responsible Opioid Prescribing. "Drug reps were going to family care doctors, and insisting that OxyContin had no real risks — only benefits. What they were selling was the idea that pain was a disease, and not a symptom."...

What followed was not all that surprising. Many grew addicted to the opioids, and when the prescriptions ran out, they turned to heroin because of its availability and relatively low cost. The Mexican drug cartels saw this trend and promptly began growing their opium plants, which they consciously made purer and less expensive.  And those cartels targeted the suburbs, where those introductory OxyContin prescriptions were being filled — and where the money was.

According to the National Institute on Drug Abuse, some 2,000 people died in 2001 from heroin overdose in the U.S. By 2013, that number had climbed to about 8,000. Coinciding with that rise: the number of opioid deaths caused by prescription drugs like OxyContin.  About 6,000 deaths from opioid prescription drug overdose in 2001 spiked to roughly 15,000 by 2013.  Over two million Americans are currently addicted to opioids, according to the National Survey on Drug Use and Health, and 467,000 are addicted to heroin.  What makes those numbers even more startling: Four out of five heroin users reportedly started out on opioids.

The issues and problems discussed in both theses stories are, obviously, about a whole lot more than just the impact of criminal prohibition and intense criminal prosecutions of persons involved with certain controlled substances. Nevertheless, stories like these remind me that the long-run "war on drugs," like so many other wars, has produced an array of unexpected consequences and collateral damages that must should not be overlooked whether we consider whether and how to continue to use massive criminal justice systems to deal with drug use and abuse.

December 2, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Tuesday, December 01, 2015

"Negotiating Accuracy: DNA in the Age of Plea Bargaining"

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

Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases.  But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence.  The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt.

We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement.  This is a recipe for wrongful conviction.  The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty.  The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent.  Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.

December 1, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

You be the judge: what federal sentence for beloved elderly preist who embezzled half-million dollars?

Fatheredwardbelczakashxjpg-79869763239fae48This local article, headlined "Dozens ask judge for mercy in sentencing of embezzling Detroit-area Catholic priest," provides the interesting backstory for an interesting federal sentencing scheduled for late today. Here are the basics:

A beloved Catholic priest in Troy was scorned when allegations came forth that he embezzled more than $500,000 from church coffers.  Rev. Edward A. Belczak, 70, admitted to diverting $572,775 collected by the church, most of which he kept in a secret private bank account.  He also spent $109,570 to purchase a Florida condo in 2005.

Despite the admissions, dozens of people, including many of the parishioners he defrauded, have come forward to ask for a lenient sentence on behalf of the priest who headed St. Thomas More church in Troy from 1984 until 2013. He's scheduled to be sentenced Tuesday.

Belczak pleaded guilty to mail fraud as part of the plea agreement. In exchange, the U.S. Attorneys Office dismissed more serious charges and asked U.S. District Judge Arthur J. Tarnow to sentence Belczak to just over three years in prison.

Attorney John J. Morad, a friend and supporter of the priest, thinks any prison time is too much. "He made a terrible mistake and I know that he is embarrassed, ashamed and humiliated by the fact that he disappointed so many people who have grown to love and respect him for the work he has done among the people," Morad wrote in a letter to the judge. " ... I know he has confessed his sins and I'm certain God has forgiven him. Should we do anything less?"

The defense has asked for home detention, while sentencing guidelines call for a prison term of between 33 and 41 months.  The theft from the church is believed to have occurred between 2004 and 2012.

UPDATE This Detroit Free-Press article about the sentencing of Father Belczak report on the basic outcome via its headline: "Embezzling priest gets 27 months: 'It's .. my destiny'"

December 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12)

Friday, November 27, 2015

"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"

The title of this post is the title of this notable new paper by John Major Eason available via SSRN.  Here is the abstract:

The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color.  Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.

Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods.  For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting.  Furthermore, later in the boom, prison building protected towns against additional economic decline.  Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation.  Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.

November 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Might Prez Obama seek to do something bold on the death penalty in his final year?

The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System."  Here are excerpts:

Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty.  Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.

A Justice Department review has dragged on for 18 months with little mention or momentum.  The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions.  His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."

Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.

Capital prosecutions are down across the United States.  A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level.  Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....

Obama isn't alone in struggling with the issue.  "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said.  "So I think we have to take a hard look at it."  She also said she does "not favor abolishing" it in all cases.

For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said.  On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...

In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.

Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."

White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences.  For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?

I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix."  But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber.  With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.

This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda.  DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty.  And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.

Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:

The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law.  They are beyond the president’s authority.  But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.

It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer.  Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.

November 27, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, November 26, 2015

So thankful for federal sentencing reform moving ahead in Congress... but...

this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President.  The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts.  Here are excerpts:

For more than a year, a rare coalition of liberal groups and libertarian­minded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war.  That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are well­known conservative billionaires.

Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white­collar criminals.

The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws.  Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills.  Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system.  Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing.  Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were co­sponsors of the bill.

Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.”  But he said he was committed to finding a way to address the Justice Department’s concern....

“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration.  He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions.  “It is an unfair and unwarranted characterization,” he added.

Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said.  If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)

November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, November 25, 2015

Notable Ninth Circuit panel squabble over computer-search supervised release condition

Yesterday, a split Ninth Circuit panel rejected a defendant's claim that a computer-search condition in his supervised release terms was clearly unreasonable.  The majority opinion in US v. Bare, No. 14-10475 (9th Cir. Nov. 24, 2015) (available here), found adequate the government's contention that, since "Bare kept paper records of his illicit firearms pawn business," if officers were permitted to search "only paper records — but not computers — [it] might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format."  Judge Kozinski dissent starts this way:

Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of libertythan is reasonablynecessary” to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2).  The majority today disregards this command by allowing probation officers to search defendant’s computer at anytime, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all.  Pretty much any federal crime can be committed by using a computer in some way — to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime.  If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant.  I cannot subscribe to such a broad and amorphous standard.

November 25, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Intriguing findings on race and criminal justice issues from 2015 American Values Survey

Screen-Shot-2015-11-11-at-1.18.33-PM-640x826I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015."  The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System."  Here are just a few highlights from this discussion:

Most Americans do not believe that police officers treat blacks and other minorities the same as whites.  Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....  

White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree.  In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....

Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same.  The views of political independents closely mirror the general public....

Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police.  Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally.  In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).

There are stark racial and ethnic divisions in views about the fairness of the criminal justice system.  White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree.  In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.

White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class.  White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree.  In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.

Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree.  The views of independents are identical to the views of Americans overall....

When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty.  Views about the death penalty have held roughly steady since 2012 when the public was closely divided.

Partisan attitudes on this question are mirror opposites.  Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.

Americans are also closely divided over whether there are racial disparities in death penalty sentencing.  A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree.  American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.

American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines.  More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime.  A majority (53%) of white Americans disagree.  White Americans’ views on this question differ significantly by social class.  A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans.  A majority (58%) of white working-class Americans say that this is not the case.

Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty.  Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree.  Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty.  Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).

There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder.  A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.

November 25, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

"The Gaping Hole in the Prison Early Release Program: Mental Health Care"

MentalhealthThe title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison."  Here are excerpts:

In Oc­to­ber, the Obama ad­min­is­tra­tion an­nounced the early re­lease of more than 6,000 fed­er­al in­mates.  While a surfeit of data on Amer­ica’s over-in­car­cer­a­tion ap­pears to sup­port the ad­min­is­tra­tion’s ra­tionale for the early-re­lease of in­mates serving time for non­vi­ol­ent of­fenses, a cru­cial as­pect went un­ad­dressed in the hoopla sur­round­ing the announce­ment: What kind of men­tal-health re­sources are avail­able in com­munit­ies for in­mates des­ig­nated for early re­lease?

And, across the board, as the ad­min­is­tra­tion and ad­voc­ates un­der­take strategies to ad­dress mass in­car­cer­a­tion, what is the fate of the es­tim­ated hun­dreds and thou­sands of in­mates in Amer­ic­an jails and pris­ons who are men­tally ill?

The U.S. Sen­ten­cing Com­mis­sion’s early-re­lease pro­gram put a point on grow­ing na­tion­al aware­ness about the implcations of Amer­ica’s vast in­car­cer­a­tion uni­verse.  It res­ul­ted from a bi­par­tis­an ef­fort to re­make harsh drug-re­lated sen­ten­cing guidelines that had spurred the mass in­car­cer­a­tion of mostly black and Latino men be­gin­ning in the mid-1980s.  By year end 2014, 2.2 mil­lion people were locked up in Amer­ica’s jails and pris­ons, rep­res­ent­ing the highest rate of in­car­cer­a­tion among de­veloped na­tions world­wide.  The pop­u­la­tion of in­mates who are sched­uled to re­ceive early re­lease is com­posed primar­ily of drug of­fend­ers who will be un­der the watch of pro­ba­tion of­ficers after they return to ci­vil­ian life, ac­cord­ing to Sally Yates, Deputy U.S. At­tor­ney Gen­er­al.

But the ab­sence of a com­pre­hens­ive plan to serve the men­tal health needs of in­mates in the early-re­lease pro­gram high­lights a long-stand­ing con­cern among pris­on re­form ad­voc­ates: the tight in­ter­sec­tion of drug or al­co­hol ab­use, men­tal ill­ness, and in­car­cer­a­tion.  Men­tal health ex­perts cite the “co-oc­cur­ring” pres­ence of drug or al­co­hol ab­use and men­tal ill­ness among in­mates as a ma­jor chal­lenge, one that makes both the daily pro­cess of safely hous­ing pris­on­ers par­tic­u­larly com­plex, and which also com­plic­ates the re­turn of in­mates to com­munit­ies....

A 2014 re­port by the Na­tion­al Re­sources Coun­cil (NRC) showed that men­tal ill­ness in the na­tion’s jails and pris­ons is per­vas­ive.  Pro­duced by an in­ter­dis­cip­lin­ary com­mit­tee of re­search­ers, the re­port ex­amined data from cor­rec­tions-department sur­veys and un­covered the pres­ence of “men­tal-health con­cerns” among 64 per­cent of in­mates in the nation’s jails, 54 per­cent of state pris­on­ers, and among 45 per­cent of in­mates at fed­er­al fa­cil­it­ies.... Con­sequently, a grow­ing num­ber of crim­in­al-justice and pris­on­er-re­hab­il­it­a­tion ex­perts are fo­cus­ing in on men­tal health as a key compon­ent of Amer­ica’s mass in­car­cer­a­tion, both as a primary in­stig­at­or of im­pris­on­ment, and also as a ma­jor challenge that must be ad­dressed in shap­ing re­lease policies and pro­to­cols....

Amer­ica’s jour­ney on the path to be­com­ing the de­veloped na­tion with the most in­car­cer­ated people in the world — and the na­tion where pris­ons and jails are de facto men­tal-health catch­ments — gained steam with the “War on Drugs,” a col­lec­tion of re­gion­al and fed­er­al tough-on-crime policies and harsh sen­ten­cing laws that es­cal­ated dur­ing the 1980s as crack co­caine use in urb­an loc­ales drove up vi­ol­ent-crime rates and gen­er­ated nightly news cov­er­age of com­munit­ies in crisis.  But the spark that lit the fire un­der mass in­car­cer­a­tion in the U.S. was struck long be­fore the mid-1980s.

Be­gin­ning in the 1960s, states began rad­ic­ally re­du­cing tax­pay­er-fun­ded men­tal-health hos­pit­als and in­pa­tient cen­ters, re­leas­ing hun­dreds of thou­sands of men­tally ill or chal­lenged pa­tients in­to com­munit­ies.  Known as deinstitutionala­tion, the pro­cess was deemed ne­ces­sary by state law­makers and gov­ernors in or­der to shut­ter hos­pit­als that of­ten resembled 19th-cen­tury “snake pits” — large, poorly run fa­cil­it­ies in which thou­sands of vul­ner­able men­tally ill citizens were ware­housed, un­der-served, and for­got­ten....

Dur­ing the same era, from Cali­for­nia to New York, a per­fect storm of factors af­fect­ing in­car­cer­a­tion rates loomed and then broke: na­tion­wide, thou­sands of res­id­ents who needed men­tal health at­ten­tion but couldn’t af­ford private care or ac­cess af­ford­able ser­vices turned to self-med­ic­at­ing be­ha­vi­or — through drug or al­co­hol use — which led to crim­in­al activ­ity, which in turn brought them in­to the crim­in­al-justice sys­tem at the very mo­ment when judges and elec­ted of­fi­cials coast to coast pushed for severe sen­ten­cing of those in­volved in drug-re­lated activ­ity.

In city after city, those without money to af­ford private drug treat­ment or men­tal-health care — or private at­tor­neys — were swept in­to jails and pris­ons, some­times fa­cing terms of a dec­ade or longer un­der new man­dat­ory-min­im­um sen­ten­cing rules for pos­sess­ing or selling small or mod­er­ate amounts of nar­cot­ics.  A raft of new sen­ten­cing guidelines nar­rowed av­en­ues for pro­ba­tion for those with mul­tiple drug of­fenses.  These ‘three strikes’ laws, as they came to be known, were ap­proved by a dec­ade’s worth of Con­gress mem­bers, as well as by Demo­crat­ic and Re­pub­lic­an pres­id­ents.

Thou­sands of low-level de­fend­ants, many suf­fer­ing from emo­tion­al- or men­tal-health chal­lenges that they had been "street treat­ing" by us­ing il­leg­al drugs, then pro­duced the co-oc­cur­ring dy­nam­ic of in­di­vidu­als strug­gling with men­tal ill­ness and drug or al­co­hol ad­dic­tion.  Plunged in­to state or fed­er­al pen­it­en­tiar­ies, thou­sands re­ceived poor treat­ment or no treat­ment, and their men­tal health de­teri­or­ated.  In some in­stances, men­tally ill in­mates fell prey to vi­ol­ence from oth­er in­mates, harmed or killed them­selves, or de­veloped deep­er drug or al­co­hol ad­dic­tions.  A Feb­ru­ary study from the Vera In­sti­tute for Justice found that 83 per­cent of jail in­mates in the U.S. do not re­ceive men­tal-health services or treat­ment after be­ing ad­mit­ted....

Justice De­part­ment of­fi­cials and some state judges have star­ted to dis­play act­iv­ist tend­en­cies, for­cing loc­al jur­is­dic­tions to be­gin find­ing solu­tions for the grow­ing num­ber of men­tally ill in­mates with­in the vast net­works of loc­al ­correc­tion­al fa­cil­it­ies.  In Au­gust, for ex­ample, Los Angeles County agreed to im­ple­ment ma­jor re­forms aimed at improv­ing the con­di­tions of men­tally ill in­mates fol­low­ing strong pres­sure from DOJ....  [I]n the state that came to em­body the ac­cel­er­a­tion of mass in­car­cer­a­tion, a blue­print is tak­ing shape for achiev­ing hu­mane and fisc­ally re­spons­ible out­comes for men­tally ill people who come in­to con­tact with the crim­in­al-justice sys­tem.

November 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, November 24, 2015

"Is Congress Ready to Back a New Crime Commission?"

Download (4)The question in this title of this post is the headline of this recent Crime Report piece by Ted Gest.  Here are excerpts:

Growing Congressional interest in justice reform has improved the prospects for creation of a National Criminal Justice Commission that can spearhead a "top to bottom review" of the justice system, says Sen. Gary Peters (D-MI). Peters told the American Society of Criminology [last week] that the time was "long overdue" for a national effort similar in scope to the Commission on Law Enforcement and Administration of Justice created by President Lyndon B. Johnson in 1965.

At a panel marking the 50th anniversary of the LBJ initiative, Peters was joined by staff members of the original commission for a discussion of the challenges and prospects of a new national effort to muster support for innovation in criminal justice.

Criminologist Alfred Blumstein of Carnegie Mellon University said a new panel could tackle a number of major national issues, including high incarceration rates and overcriminalization. But he also noted that a commission with members named by the president and Congressional leaders, as proposed by the current bill to establish the body, could lead to political polarization.

Peters is a leading sponsor of the bill, which has has been endorsed by organizations of police and prosecutors, and has 20 co-sponsors in the Senate. A similar plan by former Sen. Jim Webb (D-VA) fell short because he failed to win much Republican support. But this time around, Peters has the backing of Sen. John Cornyn (R-TX), the deputy majority leader, and Sen. Lindsey Graham (R-SC), a conservative Judiciary Committee member.

Peters, who formerly represented Detroit as a member of the House and is familiar with that city's longstanding crime problems, listed some of the issues that a new commission could address, such as grand juries that are reluctant to charge police officers who shoot citizens, the challenges of former prisoners trying to re-enter society, and flawed forensic science procedures that do not provide accurate evidence in criminal cases....

Earlier this year, a task force on 21st century law enforcement named by President Obama called for a broader presidential task force on the entire criminal justice system. The Peters-Cornyn-Graham bill would go further, creating a 14-member panel that would issue a report within 18 months.

In a discussion of the bill, Washington lawyer Sheldon Krantz, another original staff member of the LBJ panel, said the 1960s panel worked well partly because its voting members were not entrenched criminal justice experts, and they relied on a professional staff that lacked "political infighting."

Laurie Robinson of George Mason University, former assistant U.S. Attorney General for justice programs, said a new commission could pose and answer basic questions of "what do we want for the nation's criminal justice system?" She noted that public opinion on such issues as policing, drugs, and overcriminalization has changed in the past few years. In the national discussion that followed the Ferguson police killing of Michael Brown last year, "the ground is shifting, the terrain is changing," she said.

November 24, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, November 22, 2015

"Hegel and the Justification of Real-World Penal Sanctions"

The title of this post is the title of this notable new philosophical paper authored by Antje Du Bois-Pedain available via SSRN.  Here is the abstract:

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions.  Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state.  Hegel is also right to stress that punishment is — not merely conceptually, but also in the reality of our social world — a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom.

This understanding of punishment sets significant limits to punishment’s permissible forms, particularly — but not only — with regard to the death penalty.  By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents.  In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

November 22, 2015 in Purposes of Punishment and Sentencing | Permalink | Comments (2)

Stray kittens strut their stuff in prison

DownloadI am not sure that catblogging is really an internet thing anymore, but I am sure that this local article from Washington state headlined "This Humane Society is sending stray cats to prison," is blog-worthy as a feel-good story about a local prison program.  Here are excerpts:

The Kitsap Humane Society has a new approach for stray cats: send them to prison. Inmates at the Mission Creek Corrections Center for Women, near Belfair in Mason County, are rehabilitating 10 stray cats until they are ready to be adopted by the public.

The women raising the cats say they offenders benefit as well. "It's a win-win for everybody involved," said Cydney Berthel, who is locked up on a theft conviction. "We're rehabilitating the lives of these little kittens and rehabilitating our lives too," said Berthel. She said working with the cats has been therapeutic.

It's taught the offenders how to nurture a living thing, something they didn't always do in their past lives. "We definitely made mistakes," said Shauna Teagle, "I feel this is my little bit of payback I can do." Teagle, who was sentenced to three years in prison for dealing drugs, said caring for the cats will help her be a better mother when she's released.

To participate in what the inmates call the "Pawsitive Prison Program," offenders must be infraction-free for the past six months.

Though some may view this post a fluff piece, I have heard enough anecdotes about "pets for prisoners" to wonder seriously if any systematic research has been done on recidivism rates after particitation in one of these kinds of programs.  At the very least, I hope there is no reason to fear that prisoners involved in these positive programs do not later get caught up in kitty porn.

(Sorry folks, like cats drawn to catnip, I could not resist my favorite bad cat-crime pun.)

November 22, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Thursday, November 19, 2015

Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses

As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:

Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.

Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."

Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders.  "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway.  "What a gift to have such a professional windfall fall in your lap," Pratt said.

Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."

Prior related posts:

November 19, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (34)

"Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention"

The title of this post is the title of this interesting-sounding paper available via SSRN authored by Adam Shniderman and Lauren Solberg. Here is the abstract:

Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime.  A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system.

For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population.  Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders.  However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention.  This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.

November 19, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (3)

Wednesday, November 18, 2015

Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect"

As reported in this Washington Post piece, in the course of testifying before Congress yesterday, Attorney General Loretta Lynch indicated there was no data to support the notion that an increase in crime can and should be attributed to police officers pulling back from their duties in the wake of conversies over excessive use of police force.  Here are the details:

Attorney General Loretta Lynch said Tuesday that there is “no data” to support the idea that the police are not aggressively protecting communities since the increased use of videos and the focus on police tactics after the death of Michael Brown, something referred to as “the Ferguson effect.”

In testimony during her first appearance before the House Judiciary Committee since her confirmation, Lynch agreed with President Obama and her predecessor Eric H. Holder Jr. and pushed back against comments made by FBI Director James B. Comey and Chuck Rosenberg, the acting administrator of the Drug Enforcement Administration, both of whom report to her.

“While certainly there might be anecdotal evidence there, as all have noted, there’s no data to support it, and what I have seen in my travels across this country is the dedication, the commitment and the resolve of our brave men and women in law enforcement to improving policing, to embracing the 21st Century Task Force recommendations, and to continuing to have a dialogue that makes our country safer for all,” Lynch said.

In two recent speeches, at the University of Chicago Law School on Oct. 23 and at a speech to the International Association of Chiefs of Police three days later, Comey said that “viral videos” of police activity had sent a “chill wind” through law enforcement and he suggested a link between this year’s spike in crime in some major U.S. cities and the growing protests alleging excessive use of force by police. Rosenberg said he agreed with Comey and that he had “heard the same thing” from law enforcement officials....

Lynch’s comments on the “Ferguson effect” came after Rep. John Conyers Jr. (D-Mich.) alluded to Comey and Rosenberg by saying that “some from within your department” have suggested that dialogue on police and community relations “have somehow reduced the willingness of some police officers to perform their duties.”

“Does our conversations about civil rights and the appropriate use of force by police somehow make us less safe?” Conyers asked Lynch. “Our discussion about civil rights, and the appropriate use of force and all police tactics can only serve to make all of us, community members and police officers, safer,” Lynch replied. “In my discussions with police officers around the country, I have found a positive engagement on these issues.”

In addition to being pleased to hear AG Lynch suggest hard data rather than anecdote should inform discussions about a "Ferguson Effect" impact police activities, the focus on data in this context got me thinking about the important research done by Tom Tyler and Jeffrey Fagan and others about the connections between the perceived legitimacy and fairness of the law and its enforcers and the willingness of persons to comply with the law. This short piece from DOJ's Office of Justice Programs, titled "Procedural Justice: Increasing Trust to Decrease Crime," spotlights and summarizes some of this research:

A wealth of empirical evidence shows that when police are at their best — when they are neutral and unbiased; treat those with whom they interact with respect and dignity; and give folks a chance to explain their side of the story — they can actually bring out the qualities they want to see in their communities. People who are policed in this way are more likely to view the police as legitimate. And people who view the police as legitimate are more likely to obey the law, cooperate with authorities and engage positively in their communities.... [N]umerous empirical studies persuasively demonstrate that perceptions of legitimacy have a greater impact on people’s compliance with the law than their fear of formal sanctions.

The bad news is, if people experience an interaction with a police officer that suggests to them the police are untrustworthy, their ties with law and their sense of its legitimacy weaken, which may lead to a lack of cooperation with the police and more law breaking in the future. Put another way, unnecessarily aggressive policing brings out the worst in the people toward whom it is directed.

The factors that contribute most to people viewing a police stop as negative are whether the police threaten or use force arbitrarily, inconsistently or in ways that suggest a lack of professionalism or the existence of prejudice, or if police are humiliating or disrespectful. Notably, whether the stop results in an arrest is less important for purposes of perceived legitimacy than how that stop is carried out....

And it’s not just the stops of particular individuals that matter. People also develop their sense of police legitimacy from what they hear and see from their neighbors, family members and friends. Picking out some individuals and treating them fairly won’t be sufficient, if those same people witness and hear about unfairness directed toward others in their community. Every interaction the police have communicates information about the legal system. Moreover, this message resonates beyond the person who is dealing with the police, because others in the neighborhood hear about it, as do that person’s friends and family.

Notably, right around the time of all the unrest in Feguson, Tom Tyler authored this Huffington Post piece discussing his research which ends this way (with link from source and my emphsasis added):

Jeffrey Fagan and I recently studied young men in New York City and found that those who mistrusted the police were twice as likely to be engaged in criminal activity. Second they increase hostility and lead to a greater likelihood of conflict when the police deal with community members on the street and when the community reacts to police actions such as the Brown shooting. Such anger produces precisely the type of unrest so visible in Ferguson. As so many of the marchers in that community have suggested, if people do not experience justice when they deal with the police, there will be no peace.

This research has me thinking and fearing that the increase in crime being experienced in many American cities in 2015 may be a result not of decreased police activity as a result of Feguson, but of increased mistrust of police among those already likely to have deep concerns about the legitimacy of our criminal laws.

November 18, 2015 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"

The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns.  Here are excerpts:

Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus.  After less than two years in effect, the controversial law must be renewed, or it will expire.  While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.

“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.”  Last year, Walker went into labor at home....  "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”

He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault.  But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road.  There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.

The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers.  It came from law enforcement and legislators.  In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.

Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....

Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups.  But she says she’s not hearing great alternatives from the naysayers.  “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”

It isn't clear the fetal assault law is doing what it was supposed to do.  In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state.  Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year.  And yet the mountainous region is still home to the largest number of babies being born needing to detox.

State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute.  She says it needs more time and should be renewed.  “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.

Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky.  Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.

"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport.  Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.

Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room.  “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution.  While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.

November 18, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Tuesday, November 17, 2015

Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment

Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why.  In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:

Here is an excerpt from the first of these two important pieces:

A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful.  Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.

In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)

Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement.  Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.

November 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, November 16, 2015

Sentencing prominent federal defendants: should sex offender Jared Fogle or Sunwest CEO fraudster get longer prison term?

Two notable (and notably different) federal prosecutions are to reach sentencing this week in Indiana and Oregon.  Though the crimes and defendants are not similar, the range of sentences being requested by prosecutors and defendants in these two cases are comparable.  Via press reports, here are the basic elements of these two federal cases (with links to some underlying documents):

Jared Fogle, who pleaded guilty to federal sex offenses, "Jared Fogle asks for 5-year prison term in court filing before sentencing":

Jared Fogle's attorneys asked for a five-year prison term for the former Subway restaurant pitchman in a court filing before his sentencing Thursday.  The filing says Fogle will speak publicly during his hearing before Judge Tanya Walton Pratt in federal court in Indianapolis.  "He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him and, for all practical purposes, destroyed the life he worked to build over the last 18 years," the filing says.

Fogle has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.  The prosecutor is asking for 12½ years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. attorney had agreed to seek in a plea bargain struck with Fogle in August. Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

The defense filing acknowledges that the advisory sentencing guideline is 135 to 168 months, but said it is "entitled to little weight because it is the result of a flawed and widely criticized set of … provisions."

Jon Michael Harder, who pleaded guilty to federal fraud offenses, "Former Sunwest CEO, facing sentencing for $130 million fraud, apologizes for 'carnage and problems'":

U.S. prosecutors accuse former Sunwest Management CEO Jon Michael Harder of orchestrating the biggest investment fraud in Oregon history, and they are asking a judge to sentence him to 15 years in prison.  IRS criminal investigators say that as the head of a vast network of assisted living centers, he helped make off with $130 million from 1,000 investors between 2006 and 2008.

Harder will go before a judge Monday morning for a rare two-day sentencing hearing before U.S. District Judge Michael H. Simon, who found him guilty last January of mail fraud and money laundering.  

Harder's legal team, seeking leniency, is asking Simon to sentence him to five years in prison. Assistant Public Defender Christopher J. Schatz took the unusual step of filing a court declaration that describes his client as possibly suffering from undiagnosed post-traumatic stress disorder from the emotional clubbing he took after Sunwest's failures.  "Many of the investors in Sunwest were family members, family friends and members of the Seventh Day Adventist community," Schatz wrote. "Mr. Harder feels that he let all the investors down, that he failed them all."  

Harder, too, filed a court paper — a letter of apology to Simon.  "I feel incredibly badly for all the carnage and problems that I have caused," he wrote. "I have obsessed, over the last 7 ½ years, about what I should have or could have done differently in operating Sunwest."

government sentencing memo paints Harder as a chief executive who burned through corporate cash as if it were his own. He drove luxury cars, owned six homes, and once flew about 100 people to Alaska — most of them Sunwest employees — to go fishing.

Intriguingly, it seems that the federal sentencing guidelines would call for a much, much longer sentence for the fraudster than the sex offender: while Jared Fogle appears to be facing a guideline sentencing range of roughly 12 to 14 years, Jon Harder appears to be facing a guideline sentencing range of life without the possibility of parole.

November 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Sunday, November 15, 2015

Can and will "big data" enable astute (and/or scary) recidivism risk assessment?

Download (3)The question in the title of this post is prompted by this interesting Christian Science Monitor article, headlined "Microsoft says its software can tell if you're going back to prison." Here are excepts:

In a scenario that seems ripped straight from science fiction, Microsoft says its machine learning software can help law enforcement agencies predict whether an inmate is likely to commit another crime by analyzing his or her prison record.

In a series of videos and events at policing conferences, such as one on Oct. 6 at the Massachusetts Institute of Technology, Microsoft has been quietly marketing its software and cloud computing storage to law enforcement agencies.

It says the software could have several uses, such as allowing departments across the country to analyze social media postings and map them in order to develop a profile for a crime suspect. The push also includes partnerships with law enforcement technology companies, including Taser – the stun gun maker – to provide police with cloud storage for body camera footage that is compliant with federal standards for law enforcement data.

But in a more visionary – or possibly dystopian – approach, the company is also expanding into a growing market for what is often called predictive policing, using data to pinpoint people most likely to be at risk of being involved in future crimes.

These techniques aren’t really new. A predictive approach — preventing crime by understanding who is involved and recognizing patterns in how crimes are committed — builds on efforts dating back to the early 1990s, when the New York City police began using maps and statistics to track areas where crimes occurred most frequently.

“Predictive policing, I think, is kind of a catch-all for using data analysis to estimate what will happen in the future with regard to crime and policing,” says Carter Price, a mathematician at the RAND Corporation in Washington who has studied the technology. “There are some people who think it’s like the movie ‘Minority Report’ ” — in which an elite police unit can predict crimes and make arrests before they occur — “but it’s not. No amount of data is able to give us that type of detail.”

Scholars caution that while data analysis can provide patterns and details about some types of crimes – such as burglary or theft – when it comes to violent crime, such approaches can yield information for police about who is at high risk of violent victimization, not a list of potential offenders.

“Thinking that you do prediction around serious violent crime is empirically inaccurate, and leads to very serious justice issues. But saying, ‘This is a high risk place,’ lets you focus on offering social services,” says David Kennedy, a professor at John Jay College of Criminal Justice. In the 1990s, he pioneered an observation-driven approach that worked with local police in Boston to target violent crime. After identifying small groups of people in particular neighborhoods at high risk of either committing a crime or becoming a victim of violence, the program, Operation Ceasefire, engaged them in meetings with police and community members and presented them with a choice – either accept social services that were offered or face a harsh police response if they committed further crimes. It eventually resulted in a widespread drop in violent crime often referred to as the “Boston Miracle.”...

In one video tutorial for law enforcement agencies, Microsoft makes a sweeping claim. Using records pulled from a database of prison inmates and looking at factors such as whether an inmate is in a gang, his or her participation in prison rehabilitation programs, and how long such programs lasted, its software predicts whether an inmate is likely to commit another crime that ends in a prison sentence. Microsoft says its software is accurate 90 percent of the time.

“The software is not explicitly programmed but patterned after nature,” Jeff King, Microsoft’s principal solutions architect, who focuses on products for state and local governments, says in the video. “The desired outcome is that we’re able to predict the future based on that past experience, and if we don’t have that past experience, we’re able to take those variables and then classify them based on dissimilar attributes."...

While predictive policing is still in the early stages, some say the data it generates could have a mixed impact. While the information could improve police transparency, it could also lead to other problems. “If police departments had access to social media accounts, and it turned out that crimes were being committed by people who liked a certain kind of music and a certain sports team, it could lead to certain kinds of racial discrepancies,” says Dr. Price, the RAND researcher. “It’s a useful tool, but it should always be done with [the idea of] keeping in mind how this will impact populations differently, and just sort of being cognizant of that when policies are put in place."

But Kennedy, the criminology professor, says that for violent crimes, using data that shows crime risks to influence policing actions could have devastating consequences. “People have been trying to predict violent crimes using risk factors for generations, and it’s never worked,” he says. “I think the inescapable truth is that, as good as the prediction about people may get, the false positives are going to swamp the actual positives ... and if we’re taking criminal action on a overwhelming pool of false positives, we’re going to be doing real injustice and real harm to real people.”

November 15, 2015 in Data on sentencing, National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, November 14, 2015

"Is Deterrence Relevant in Sentencing White-Collar Defendants?"

The question in the title of this post is the title of this notable new article authored by Peter Henning and now available via SSRN. Here is the abstract:

This article is part of the Wayne Law Review symposium “Sentencing White-Collar Defendants: How Much Is Enough?” held in October, 2014.  The article looks at the primary justification for imposing punishment on a defendant convicted of a crime, which is deterrence of both the individual who committed the offense (special deterrence) and others similarly situated who will be dissuaded from pursuing similar misconduct (general deterrence). White-collar crimes are different from traditional street crimes, both in the type of conduct involved and the nature of the perpetrators.

One would expect that well-educated individuals, the type of person who commits a white-collar crime, would be easily deterred from violations because of the penalties suffered by others and knowledge of the consequences that is communicated through sentences imposed on others in the same industry or profession.  This article considers whether that message is heard because most white-collar offenses occur in seemingly unique circumstances, at least from the defendant’s point of view, and the person rarely expects to be caught, or may even believe that the conduct is not a crime.

The real value of deterrence is in keeping judges from succumbing to the impulse to view white-collar defendants as offenders who, having many good qualities, should not suffer any significant punishment.  Deterrence does not so much stop future crimes but acts as a means to inform judges about the need to impose punishments that do not let white-collar defendants use their social status and other resources to avoid the consequences of violations.

November 14, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

Friday, November 13, 2015

Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum

This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:

The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”

The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.

King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.

In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.

The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”

Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....

Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”

Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”

November 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System"

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

Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.

Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.

November 13, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old

Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:

Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.

The chief dissent gets started this way:

The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response.  But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold.  Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long.  As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.

Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements.  Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days.  Now the community’s sense of justice has been violated.  Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.

The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Tuesday, November 10, 2015

What should be the minimum age for charging a juve with murder?

The question in the title of this post is prompted by this depressing local article, headlined "8-year-old charged with murder in beating death of Birmingham toddler," which suggests that there is apparently no minimum age for prosecution for murder in Alabama.  Here are the sad specifics:

An 8-year-old Birmingham boy is charged with murder in the beating death of a toddler girl left in his care, the youngest person in recent memory charged with murder in Jefferson County. The girl's mother is charged with manslaughter after police say she left her young daughter in the care of a group of children while she partied at a nightclub.

"This is one of the most heartbreaking investigations that I have seen in over 30 years of my law enforcement career," said Birmingham police Chief A.C. Roper. "There are just too many deep rooted issues in this horrific crime. It's extremely troubling from so many different angles and there are no law enforcement answers to prevent it," Roper said. "We've been concerned about the kids and the future effect on their lives. The bottom line is an innocent young baby lost her life and that should be a wake-up call for our community."

Kelci Devine Lewis, who turned 1 in May, was found unresponsive in her crib at 10:45 a.m. Oct. 12. Police were called to the home on Second Avenue South, and Kelci was taken to Children's of Alabama where she was pronounced dead at 11:07 a.m. Authorities have said there were visible injuries to the girl. She died from blunt force trauma to the head, and internal injuries, Birmingham police spokesman Lt. Sean Edwards has said.

Family members said 26-year-old Katerra Lewis and Kelci, her only child, didn't live at the home where Kelci was killed. Grandmother Waynetta Callens said in an earlier interview that they were staying there temporarily with friends while Katerra Lewis waited for Section 8 housing of her own. Edwards said Kelci was left alone that night in the home with five other children, ages 2, 4, 6, 7 and 8. Katerra Lewis, he said, had gone to a nightclub with a friend who was the person she was staying with.

"It is believed that while the mother and friend were at the club, the 8-year-old viciously attacked the 1-year-old because the 1-year-old would not stop crying," Edwards said. "The 1-year-old suffered from severe head trauma as well as major internal organ damage with ultimately led to her death."

Police believe the 8-year-old put the injured Kelci back in her crib, where she remained until her mother found her the following day. Katerra Lewis and the other adult were reportedly gone from 11:30 p.m. until 2 a.m. Police have not and will not release the name of the 8-year-old boy. He is in the custody of the Department of Human Resources....

Katerra Lewis is charged with manslaughter. She turned herself in to the Jefferson County Jail Monday at 3:42 p.m. and was released at 5:02 p.m. after posting $15,000 bond. Katerra Lewis attended a vigil held Oct. 20 at Avondale Park but was too distraught to speak to the group. They lit candles and released white balloons in Kelci's memory. The day after the vigil, Katerra Lewis posted on her Facebook that she was suffering following the loss of her child. "I keep asking can dey bring u back and take me instead."

DHR spokesman Barry Spear said the agency had no prior involvement with Katerra Lewis or Kelci. Privacy laws, he said, prevent him from commenting about the 8-year-old suspect.

November 10, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Monday, November 09, 2015

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, November 07, 2015

"Incentives Structures and Criminal Justice"

The title of this post is the title of this interesting article authored by Aurelie Ouss now available via SSRN.  Here is the abstract:

The conventional assumption in economics of crime is that criminal justice system actors behave like social planners, choosing punishment levels to equate the marginal benefits and costs from society’s perspective.  This paper presents empirical evidence suggesting in practice, punishment is based on a much narrower objective function, leading to over-incarceration.  The costs and benefits of various punishment options are reflected at different government levels in the US.

The 1996 California Juvenile Justice Realignment can be used as a natural experiment: it shifted the costs of juvenile corrections from states to counties, keeping overall costs and responsibilities unchanged.  Moving the cost of incarceration from state to counties resulted in a discontinuous drop in the number of juveniles being sent to state facilities, but no change in juvenile arrests.  

This indicates that when costs and benefits of incarceration are not borne by the same agency, there is excess incarceration: not only is there more demand for prison than when costs are fully internalized; but there are no gains in terms of crime reduction from this extra incarceration.

November 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, November 05, 2015

"Prosecutors are addicted to the War on Drugs: Inside law enforcement’s rabid defense of mandatory minimums"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:

Federal prosecutors are fighting a rearguard action to defeat criminal justice reform legislation in Congress, warning that modestly dialing back harsh mandatory minimum sentences for nonviolent drug offenders would hinder their campaign against drugs amidst a heroin crisis.

“Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations,” a National Association of Assistant United States Attorneys white paper on “the dangerous myths of drug sentencing ‘reform'” warns.  Reduced sentences “threaten the prosecution of many of the most dangerous and high level criminals involved in drug trafficking by undermining the cooperation incentive that the current sentencing structure creates.”

Because of harsh mandatory minimums in federal and state law, many nonviolent drug dealers have been sentenced to spend much of their life behind bars — including sentences of life without parole — for crimes as minor as delivering LSD to fellow Deadheads. Defending the justice or proportionality of such sentences is a rather difficult task. So NAAUSA isn’t focusing on that.  Instead, the group, which represents many federal prosecutors, is warning that they need the threat of harsh sentences to scare low level offenders into selling out their superiors: the big-time kingpins who have blood on their hands.

“The leverage, the hammer we have comes in those penalties,” federal prosecutor and NAAUSA president Steven H. Cook told the Washington Post in an article highlighting the group’s case against reform. “It is the one and only tool we have on the other side.”...

Cook concedes that prosecutors need the threat of draconian sentencing to tip the scales of justice in their favor, scaring defendants into pleading guilty and snitching.  In 2013, more than 97 percent of all federal cases that weren’t dismissed (which was just 8 percent) ended in guilty pleas.  The practice effectively denies people their constitutionally-enshrined right to trial, deprives judges of their role, leads to the conviction of the innocent, and disproportionately punishes people who simply lack information to trade.

“I can understand prosecutors who want to have their jobs made easier by maintaining mandatory minimums in their current form,” says Michael Collins, deputy director of the Drug Policy Alliance’s Office of National Affairs.  “At the end of the day, the criminal justice system does not exist to make the workload of certain individuals easier.”

That federal prosecutors are defending mandatory minimums in such instrumental terms might be a concession that they can no longer make a compelling argument that such harsh sentences fit the crimes for which they are imposed....

The federal drug war grinds on despite the Obama Administration’s calls for moderation. Most notably, Cook makes the startling suggestion, according to the Post, that then-Attorney General Eric Holder’s 2013 memo calling for U.S. Attorneys to limit the use of mandatory minimums is being ignored or resisted by some prosecutors....

Cook emails that “one of the fundamental concepts of any criminal justice system is that it have a deterrent effect.  Long prison sentences serve to deter people.  Trafficking in heroin is a highly profitable business and to offset the attractiveness we have to make the cost of engaging in that activity high.”

But there is no evidence that harsh prosecutions actually do anything to keep heroin off the streets and out of users noses and arms.  To the contrary, the evidence shows that the drug war has entirely failed to limit heroin supply if we look at two standard measures: price and purity.  According to a 2012 Global Commission on Drug Policy report, “since the early 1980s, the price of heroin in the US has decreased by approximately 80 percent…and heroin purity has increased by more than 900 percent.”

Indeed, the irony is that many of the most dangerous things about heroin use are created not by the drug — which is no doubt plenty dangerous and addictive — but by its prohibition, which make it difficult to measure dosage and detect dangerous adulterants like fentanyl.

The current push for reform is modest and will by no means even come close to ending mass incarceration.  But it is nonetheless historic and significant for those whose lives will be somewhat less ruined if it is passed and signed into law.  The legislation has received bipartisan support, extending beyond Congress to odd-bedfellow advocates like the ACLU, Koch Industries and a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration.

Doug Jones, a member of the law enforcement reform group and the former US Attorney for the Northern District of Alabama, says that he understands that prosecutors are concerned for their communities and also, he says, with managing their heavy caseloads. But he says that pro-reform law enforcement officials “are looking at a broader perspective” that takes account of the toll of having some of the highest incarceration rates on earth.  “More incarceration is not necessarily the safest way to do things.”

To make his case, Cook is trying to turn the political clock back to 1990, warning that “reforms” may already be causing “homicides and other violent crimes” to be “spiraling upward in cities across the country.”  This is similar to the argument in favor of a so-called “Ferguson effect,” the idea that increased scrutiny of police has deterred them from doing their job and thus caused more crime.  This idea persists despite statistics showing that there is no demonstrable nationwide violent crime spike.  In reality, violent crime has continued its long decline....

Cook states that harsh mandatory minimums are “the one and only tool we have.” But prosecutors, as evidenced by the fact that so few cases ever make it to trial, wield incredible power in the courtroom and have too often supplanted judges as the real arbiter of justice. In a just society governed by the rule of law, the only tool that prosecutors are supposed to have in court is evidence that proves beyond a reasonable doubt that a defendant committed a crime.  And when they prove it, the punishment should be proportionate.

As American Bar Association standards state, “The duty of the prosecutor is to seek justice, not merely to convict.”  For many federal prosecutors, however, the maximum amount of incarceration is still the favored solution.

November 5, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, November 04, 2015

Notable USSC member, Judge Bill Pryor, responds to Rep Goodlatte's attack on USSC

As noted in this prior post, titled "House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform," a notbale member of Congress recently authored this notable attack on the recent work of the US Sentencing Commission reducing federal drug sentences.  Interestingly, a notable member of the Commission, 11th Circuit Judge Bill Pryor (who was the attorney general of Alabama from 1997 to 2004), has now authored this response, which runs in the National Review under the headline "In Defense of the U.S. Sentencing Commission."  Here are excerpts:

On November 2, Representative Bob Goodlatte, who chairs the House Judiciary Committee, published an article in National Review Online attacking the 2014 decision of the U.S. Sentencing Commission to reduce sentencing guidelines for federal drug offenders. If you were to read Chairman Goodlatte’s article with no knowledge of federal law, you would think that the Sentencing Commission operates “irresponsibly” and “recklessly,” without congressional oversight, and sets sentencing guidelines “without regard to an inmate’s criminal history and public safety.” Nothing could be further from the truth....

When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition. In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.

Now that the commission’s decision is being implemented without objection from Congress, Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority. Indeed, Congress required the commission, whenever it lowers any guideline, to consider whether to make that change retroactive. And every retroactive change becomes effective only after Congress has had the opportunity to reject that decision. Congress again did not reject the decision to make the changes in drug sentencing retroactive, and Chairman Goodlatte did not schedule a hearing about it.

Moreover, when the Commission makes a change retroactive, each inmate must go before the sentencing judge, who must then consider whether the inmate should receive a reduced sentence under the new guideline. A retroactive guideline is not a get-out-of-jail-free card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence....

Chairman Goodlatte referred to the commission as a group of “unelected officials” that is “going about sentencing reform in the wrong way,” but he failed to mention that Congress, with the support of the Reagan administration, created the commission as a permanent agency to consider and make needed sentencing reforms. The commission has seven members appointed by the president and confirmed by the Senate for fixed terms. By law, at least three members must be federal judges, and the membership must be bipartisan. For example, I was appointed to the commission by President Obama based on the recommendation of Senate Republican leader Mitch McConnell. The commission conducts public hearings and considers thousands of public comments before changing any guideline. And our decision to change the drug guideline and to make it retroactive was unanimous....

I and other members of the commission support Chairman Goodlatte’s goal of saving taxpayer dollars, reducing prison overcrowding, and making drug sentencing fair and responsible. We look forward to working with him and other members of Congress toward those ends. But he should not pretend that the independent and bipartisan Sentencing Commission is some sort of bogeyman working against those interests. Nothing could be further from the truth.

November 4, 2015 in Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 03, 2015

"The Bumpiness of Criminal Law"

The title of this post is the title of this notable paper by Adam Kolber now available via SSRN. Here is the abstract:

Criminal law frequently requires all-or-nothing determinations.  A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.

Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs.  An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output.  By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects.  Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements.  While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.

November 3, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, November 01, 2015

"In Heroin Crisis, White Families Seek Gentler War on Drugs"

The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought.  Here are excerpts from the piece:

The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.

“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.

Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.

The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.

Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.

And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.

“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African­-Americans for a more empathetic approach were largely ignored.  “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools.  “But,” she added, “one cannot help notice that had this compassion existed for African­-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

November 1, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Thursday, October 29, 2015

More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms

Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:

These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system.  About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders.  In short, we need to make sure that the punishment fits the crime.  Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.

And I know how badly we need reform.  As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system.  I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.

We need a new approach and we need a better approach.  We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....

We need to think differently.  We need to look beyond our own experiences and accept that there may be new and better, ways of doing things.  I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs.  Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities.  While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.

This new way of thinking is beginning to resonate in federal and state systems all across the country.  At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes.  The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead.  Twenty-nine red states and blue states across the country have passed innovative reforms.  Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.

But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty.  We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs.  We all know that we can’t simply jail our way into safer communities.  But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.

When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention.  The fact is, more than 95 percent of all prisoners will eventually be released from prison.  And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years.  We have to break that cycle.

We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past.  They need jobs and homes; friends and family.  Yet so many people in our society want nothing to do with anyone with a rap sheet.  There are too many people willing to pin a scarlet letter on those who have spent time in prison.  The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.

It is up to all of us to reject this way of thinking.  Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....

Achieving meaningful criminal justice reform will not be easy.  And we must all participate in this process, government and private citizens alike.  Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change.  It’s time that we collectively discard old assumptions and embrace new ideas.  In other words, it’s time we all collectively put two fingers to our temples.  Our nation and our fellow citizens deserve nothing less.

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (16)

"Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionaltiy Seriously and Implementing Fair Fixed Penalties"

The title of this post is the title of this notable new paper authored by Mirko Bagaric and Sandeep Gopalan now available via SSRN. Here is the abstract:

Unabated tough-on-crime policies in the United States for the past two decades in response to a crime problem have now produced another crisis: too many prisoners. Prison gates are currently literally being opened to release prisoners in a bid to ameliorate the unsustainable cost of detaining more than two million Americans.  More than 40,000 drug offenders may be released early from prison pursuant to retrospective sentence reductions which have been implemented for no greater reason than the prison walls are crumbling from overuse.  Sentencing is the sharp end of the criminal law.  It is the domain where the State acts in its most coercive manner against citizens.  The cardinal interests at stake are too important for it to continue to be dictated by reflexive legislative hunches.  Yet, it is the area of law where there is the biggest gap between what is implemented and what theory informs us is achievable.

This Article attempts to correct that failing and in the process makes concrete proposals to prevent the United States making another macro-political and social error by over-reacting to the present crisis.  Mandatory harsh penalties have caused the incarceration crisis.  The solution to the problem involves maintaining the overarching architecture of this approach but fundamentally alerting its content.  The core problem with the current approach to sentencing in United States is not its prescriptive nature.  It is that the sanctions are generally too severe; devoid of any attempt to match the gravity of the crime to the harshness of the penalty.  Proportionality is the missing component in United States sentencing.  Drug traffickers, for example, deserve punishment, but any system that treats them as severely as murderers is afflicted with a fundamental doctrinal deformity.

This Article proposes a model to remedy such flaws.  It gives meaning and content to proportionality.  As a result, it is suggested that most non-violent and non-sexual offenses should be dealt with less harshly.  This is especially because the cost and burden of imprisonment to the community needs to be factored into the sentencing calculus.  Moreover, prison should be principally reserved for offenders who are a threat to public safety; not those whom we simply dislike.  This will result in a rapid emptying of many prisons, but it will be principled -- not reflexive.  To illustrate the manner in which our recommendations should operate we develop a sentencing grid which, if implemented, would make United States sentencing fair, efficient and profoundly less expensive to the taxpayer.

October 29, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

NY Times debates "Will Crime Rise If More People Are Kept Out of Prison?"

The Room for Debate section of the New York Times has this new set of pieces exploring the potential crime impact of reduced use of incarceration.   Here is the section's set up (with links from the source):

Even many of the nation’s police chiefs have called for reducing the number of people, particularly minorities, sent to prison.  But the news that a man suspected of murdering a New York City police officer had been given break after break, and was free because he had been allowed to enter a diversion program rather than be jailed on drug charges, have led even supporters of such programs to raise questions about them.

With some already saying that crime may be rising, are we moving too fast to embrace limits on incarceration, such as diversion programs and drug courts? Could such measures actually increase the risk of crime?

Here are the contributions, with links via the commentary titles:

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 25, 2015

Federal judge makes extended pitch for individuals to receive deferred-prosecutions agreements from DOJ

This new CNN story, headlined "Judge: Prosecutors should give drug offenders same break as companies," reports on the remarkable coda that appears at the end of a remarkable federal district court opinion handed down this past week. The start of the CNN story provides a link to the opinion and its highlights:

Some defendants charged with drug crimes should be offered a second chance the way corporations often are. U.S. District Judge Emmet G. Sullivan proposed this in an 84-page opinion in cases against two corporations this week.

Sullivan approved a settlement that will allow the companies, each facing allegations of bribery to win government contracts, to settle criminal charges. They won't have to plead guilty and won't face trial as long as they stay out of trouble in the future.

But he used the opinion to make a broader point about what he sees as a disparity in how the legal system treats corporations and nonviolent offenders.

"Drug conspiracy defendants are no less deserving of a second chance than bribery conspiracy defendants," Sullivan wrote. "And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations."

Sullivan, who is in Washington, D.C., asked why companies get a shot at "rehabilitation" when many individuals do not.

Here are just a couple of notable paragraphs from the remarkable closing sections of US v. Saena Tech Corp. penned by Judge Sullivan:

Although the Court approves the two deferred-prosecution agreements in these cases, the Court observes that the current use of deferred-prosecution agreements for corporations rather than individual defendants strays from Congress’s intent when it created an exclusion from the speedy trial calculation for the use of such agreements.  The Court is of the opinion that increasing the use of deferred-prosecution agreements and other similar tools for individuals charged with certain non-violent criminal offenses could be a viable means to achieve reforms in our criminal justice system....

The Court respectfully requests the Department of Justice to consider expanding the use of deferred-prosecution agreements and other similar tools to use in appropriate circumstances when an individual who might not be a banker or business owner nonetheless shows all of the hallmarks of significant rehabilitation potential.  The harm to society of refusing such individuals the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions is, in this Court’s view, greater than the harm the government seeks to avoid by providing corporations a path to avoid criminal convictions.  If the Department of Justice is sincere in its expressed desire to reduce over-incarceration and bolster rehabilitation, it will increase the use of deferred-prosecution agreements for individuals as well as increase the use of other available resources as discussed in this Opinion.

October 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, October 23, 2015

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

"Utah latest red state grappling with death penalty"

The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State.  Here are the basics:

For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.

"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."

Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.

Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.

Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.

And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.

Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....

The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."

Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.

More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....

But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.

Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...

House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.

October 23, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement

In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here).  These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:

Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:

I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.

At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.

The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.

Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.

In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.

He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."

What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.

October 23, 2015 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, October 22, 2015

Looking closer at (unexpected?) states investing more in incarceration than higher education

I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal.  For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions.  That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:

A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades.  Many states are now contributing only a small fraction of the cost of "state" colleges and universities.

One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak.  But it could also be deceptive.  To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.

In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14.  In every case, the numbers are expressed as the percent higher or lower than the national average.

We found that beneath the headline, those 15 states actually were quite varied.  Some clearly underinvest in higher education, while others have high incarceration rates.  Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right.  Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.

Some of the states that underspend will surprise you. Reputations do not always match reality.

October 22, 2015 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 21, 2015

Notable new group advocating for sentencing reforms: Law Enforcement Leaders to Reduce Crime and Incarceration

I was intriguing and pleased to receive this press release this morning, titled "130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration."  The release explains the creation and commitments of a notable new public policy group.  Here are excerpts from the press release (with links and emphasis from original):

Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. while maintaining public safety.

The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety.  At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.

President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal....

“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” said Law Enforcement Leaders Co-Chair Garry McCarthy, Superintendent of the Chicago Police Department.  “Good crime control policy does not involve arresting and imprisoning masses of people.  It involves arresting and imprisoning the right people.  Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”

Members of the group will work within their departments as well as with policymakers to pursue reforms around four policy priorities:

Increasing alternatives to arrest and prosecution, especially mental health and drug treatment. Policies within police departments and prosecutor offices should divert people with mental health and drug addiction issues away from arrest, prosecution, and imprisonment and instead into proper treatment.

Reducing unnecessary severity of criminal laws by reclassifying some felonies to misdemeanors or removing criminal sanctions, where appropriate.

Reducing or eliminating mandatory minimum laws that require overly harsh, arbitrary sentences for crimes.

Strengthening ties between law enforcement and communities by promoting strategies that keep the public safe, improve community relations, and increase community engagement.

“Our decision to come together reflects the deep commitment among law enforcement’s ranks to end unnecessary, widespread incarceration,” said Law Enforcement Leaders Co-Chair Ronal Serpas, former Superintendent of the New Orleans Police Department.  “As leaders of the law enforcement community, we are committed to building a smarter, stronger, and fairer criminal justice system.  We do not want to see families and communities wrecked by our current system.  Forming this new organization will allow us to engage policymakers and support changes to federal and state laws, as well as practices, to end unnecessary incarceration.”

October 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, October 20, 2015

Ohio Gov Kasich extends de facto execution moratorium into 2017

Ohio-executionEarlier this year during SCOTUS oral argument in the Glossip lethal injection case, Justice Alito complained about what he saw as a "guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." For anyone inclined to accept that characterization, today brings news that the warriors have scored another significant victory.  This new AP piece, headlined "Ohio delays executions until 2017 over lack of lethal drugs," provides the basic details:

Ohio is putting off executions until at least 2017 as the state struggles to obtain supplies of lethal injection drugs, delaying capital punishment for a full two years, the prisons department announced Monday. Execution dates for 11 inmates scheduled to die next year and one scheduled for early 2017 were all pushed into ensuing years through warrants of reprieve issued by Gov. John Kasich.

The result is 25 inmates with execution dates beginning in January 2017 that are now scheduled through August 2019. Ohio last put someone to death in January 2014.

Ohio has run out of supplies of its previous drugs and has unsuccessfully sought new amounts, including so-far failed attempts to import chemicals from overseas. The new dates are needed to give the prisons agency extra time, the Department of Rehabilitation and Correction said in a statement.

The agency “continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions,” the statement said....

The next execution was scheduled for Jan. 21 when Ronald Phillips was to die for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993. Phillips’ execution was rescheduled for Jan. 12, 2017.

The handwriting has been on the wall for months that Ohio would have to make such a move, said Franklin County Prosecutor Ron O’Brien, expressing his frustration at a new set of delays. These delays come in cases where inmates have long exhausted their appeals and there’s no question of their guilt, he said. “It seems that in those states that authorize assisted suicide, there has been no impediment to securing drugs, and as time marches onward, victims wonder why they must continue to wait for justice,” O’Brien said in an email.

Ohio abandoned the two-drug method after McGuire’s execution and announced it would use either of two older drugs that it had previously obtained for capital punishment, but did not currently have supplies of. One of those drugs, sodium thiopental, is no longer manufactured by FDA-approved companies and the other, pentobarbital, has been put off limits for executions by drug makers.

Ohio obtained a federal import license to seek supplies overseas, but has been told by the FDA that such a move is illegal. Ohio raised the issue again with the FDA earlier this month, asserting the state believes it can obtain a lethal-injection drug from overseas without violating any laws. The FDA has yet to respond. 

A few prior related posts:

October 20, 2015 in Baze and Glossip lethal injection cases, Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, October 19, 2015

"Why Arrest?"

The title of this article is the title of this interesting new article by Rachel Harmon I just noticed on SSRN. Here is the abstract:

It is no exaggeration to say that arrests are the paradigmatic police activity. While many debate the necessity of particular arrests, neither participants in the criminal justice system nor contemporary critics have seriously considered whether law enforcement – as a general matter - requires arrests.

This essay challenges the long-held assumption that, even if not every arrest is legitimate, arrests as a general matter are worthwhile because they are critical to law enforcement goals. As recent news events have suggested, arrests are more harmful than they first seem, not only to the individuals arrested but also to their families and to society as a whole.

More importantly, our traditional justifications for arrests - starting the criminal process and maintaining public order – at best support a much more limited practice of arrest than we currently permit. Overwhelmingly, arrests can be replaced with alternatives, even for serious crimes, and neither public safety nor public order will likely much suffer. As a result, whether or not arrests are fairly imposed on individuals, contemporary arrest practice is illegitimate because the coercion it involves is largely unnecessary.

October 19, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

New York Times editorial rightly frames debate over federal judges' expungement power

Regular readers may recall this recent post highlighting the interesting (and hip?) legal issue arising in federal court lately concerning the inherent power of federal judges to expunge a federal conviction.  This effective New York Times editorial, headlined "How to Get Around a Criminal Record," spotlights some of the unfortunate reasons this legal issue is now coming up for debate.  Here are excerpts: 

In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.... The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public....

Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights.  Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools.  But many have no relation at all to the original offense.

The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check.  As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”

The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records.  Some expungements are automatic, while others require a petition to the court.  Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.

A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.

Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously.  Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years.  But President Obama, like his recent predecessors, has almost entirely abandoned the practice.

Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”

If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.

Some prior related posts:

October 19, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, October 17, 2015

Making a case for prison abolition, not just sentencing and prison reform

This notable article in The Nation authored by Mychal Denzel Smith seeks to make the case for a prison abolition movement that would go far beyond the kinds of sentencing reform garnering bipartisan support these day.  This commentary is headlined, "The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half the Problem: If we don’t face the injustice of the very existence of prisons, the root causes of mass incarceration will go unaddressed."  Here are excerpts:

The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms.  The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.

In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others.  The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.

Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people — those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences....  [But]changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity).  Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.”  Why?  Because a true agenda for change has been ceded to the language of reform.  The debate started and has effectively ended without considering the injustice of the very existence of prisons.  We never considered abolition....

Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves.  And they are — not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people.  Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more.  Prison makes us lazy thinkers, hungry for revenge instead of justice.  Prison is a violent representation of our failure to fight inequality at all levels.  In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?

Abolition will not win right now.  But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system.  An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether.  An abolitionist framework would call for us to decriminalize possession and sale of drugs.  Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.

With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released.  And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence.  And we could then start making the kinds of investments in alleviating poverty that [advocates] call for.

But we can’t do that so long as prison exists as a fail-safe.  Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation.  So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.

October 17, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)