Monday, June 20, 2016
"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"
The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:
“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.
To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.
Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.
June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas
Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).
Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul. Here is how Justice Alito starts his dissent on one of these cases:
This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.
Tuesday, June 14, 2016
Notable South Carolina affinities and disaffinities for capital prosecution of Charleston mass murderer Dylann Roof
This recent local article out of South Carolina provides an interesting review of interesting survey data about opinion on the high-profile capital prosecution(s) of a local mass murderer. The article is headlined "Most SC blacks say Dylann Roof should get life without parole," and here are excerpts:
A majority of black South Carolinians say Dylann Roof should be sentenced to life without parole — not death — if he is found guilty of murdering nine African-American members of Charleston’s Emanuel AME Church. But most white South Carolinians say Roof should be sentenced to death if he is found guilty, according to a University of South Carolina poll.
Roof faces federal and state charges in connection with the Charleston massacre. Both federal and state prosecutors have said they will seek the death penalty. The difference of opinion over Roof reflects historically differing attitudes toward the death penalty between black and white South Carolinians, according to the USC poll, released Saturday.
The poll — on race relations a year after the Emanuel Nine massacre — also found stark differences in how South Carolina’s white and African-American residents view the criminal justice system.
The poll found:
▪ A majority of black South Carolinians — 64.7 percent — said Roof should be sentenced to life without parole if found guilty.
▪ Just three in 10 African Americans — 30.9 percent — said Roof should be sentenced to death. Another 4.4 percent said they didn’t know what the punishment should be, according to the poll, which surveyed 800 random S.C. adults.
▪ The majority of whites — 64.6 percent — think Roof should be sentenced to death.
▪ Only 29.9 percent of whites think Roof should be sentenced to life without parole; 5.6 percent of those surveyed said they didn’t know.
The question of whether to seek the death penalty against Roof divides the families of those slain in Charleston. Some family members oppose the death penalty. Others say it would be justice. The findings of the USC poll reflect most black South Carolinians’ consistent opposition to the death penalty and most whites’ consistent support for it, said Monique Lyle, a USC political scientist who co-conducted the poll with USC’s Bob Oldendick.
The majority of black South Carolinians — 64.9 percent — oppose the death penalty, according to the poll. The majority of white South Carolinians — 69.4 percent — favor it. The African-American community’s opposition to the death penalty reflects its history with the criminal-justice system, said Kylon Middleton, senior pastor of Charleston’s Mount Zion AME Church.
“Most black people would not want someone to be executed because” so many African Americans have been executed, said Middleton, a longtime friend to Clementa Pinckney, the Emanuel pastor and state senator who was among the nine slain. “We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment,” Middleton said, citing America’s history of slavery.
Beyond that history, African Americans also tend to be extremely religious, said state Rep. Todd Rutherford, D-Richland, noting the Bible commands: Thou shall not kill. In addition, a life sentence without parole now means that a defendant will spend life in prison. “That seems to be sufficient for most African Americans as punishment,” even in the case of Roof, Rutherford said, an attorney. The African-American community also believes in a rehabilitative and repentant society, said state Sen. Gerald Malloy, D-Darlington, who declined to discuss Roof specifically. (Malloy, an attorney, represents the family of Sen. Pinckney.)
African Americans also have concerns about the fairness of the justice system, said Todd Shaw, a USC professor of political science and African-American studies. “I don’t think there would be an exception for someone such as Dylann Roof,” Shaw said, adding some African Americans feel “bringing about his death will not bring about justice.”
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Friday, June 10, 2016
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Monday, June 06, 2016
Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it. This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:
A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.
The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.
The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.
The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.
She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....
If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.
In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent. He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics. “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote. “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”
The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation. In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”
The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.
Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one. The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.
Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:
As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too. (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing). What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.
I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient. If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea.
June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)
US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group
I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:
Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.
The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.
The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:
The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:
(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;
(2) Including in USSG §1B1.1 a definition of “court protection order;”
(3) Amending USSG §5H1.1 regarding the “age” policy statement; and
(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.
The TIAG recommends that the Commission adopt certain policy changes including:
(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;
(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and
(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.
The TIAG also recommends that the Commission support changes in federal law and practice including:
(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;
(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;
(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;
(4) Better training of federal employees who work in Indian country about Native American history and culture; and
(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.
This Report provides the basis for and an explanation of these and other recommendations.
Saturday, June 04, 2016
Could criminal defendants try to use GOP Prez candidate Trump's bias claims to bollix up prosecutions?
I always try to stay open-minded about all people's political and personal perspectives, and I have thus to date been disinclined to think the worst about GOP Prez candidate Donald Trump and the prospect of him becoming the next President of the United States. But I am quite troubled by Trump's recent attacks on a federal judge, and those attacks prompt the provocative question in the title of this post. This new NPR piece, headlined "Trump Presses Case That 'Mexican' Judge Curiel Is Biased Against Him," provides the basic backstory:
Donald Trump is intensifying his attacks on the federal judge presiding over fraud lawsuits against Trump University. On Friday the presumptive Republican presidential nominee, dismissing criticism from legal experts on the right and left, pressed his case against U.S. District Judge Gonzalo Curiel, saying the Indiana-born judge is biased against him because "he's a Mexican. We're building a wall between here and Mexico."
Trump made the remarks, and others like it, repeatedly, in interviews with CNN and The Wall Street Journal, referring to Judge Curiel variously as "of Mexican heritage" or just "Mexican." But the message was always the same, that the judge had what Trump called "a conflict" because of his ethnicity.
At a rally in San Diego last week, Trump characterized the judge as "a hater of Donald Trump, a hater. He's a hater." And "they ought to look into Judge Curiel." In public, Trump has called repeatedly for the judge to recuse himself, but his lawyers in fact have not made any such request.
That is undoubtedly because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge. If they were, lethal ethicists observe, the legal system would fall into chaos because no judge would be free from taint. The five Supreme Court justices who are Catholic could not rule on a case in which the Catholic church participated, but neither could the other justices who are not Catholic.
Moreover, while Trump is free to say anything he wants about the judge, the lawyers in the case are bound by the professional rules of conduct and could be sanctioned for making such charges about Curiel without actual evidence of bias. Legal ethics expert Stephen Gillers notes in addition that litigants may not wait to seek a judge's disqualification; they must move to recuse the judge as soon as they know there is a conflict.
Trump's lawyers, from the prestigious O'Melveny & Myers firm, however, have not done that. Indeed, some observers argue that the judge did the candidate a big favor by postponing the trial in the case until after the election. And Trump did not become bellicose about Curiel until the judge, at the request of news organizations, ordered the unsealing of documents in the case — documents that have proved embarrassing for the GOP presumptive nominee.
"This is not really about rebutting accusations that Trump University defrauded its students," said NYU's Gillers. Rather, it is a kind of dog whistle to supporters, "a way to keep the subject of illegal Mexican immigration on the front page."
Judge Curiel, appointed to the federal bench by President Obama, was born in Indiana, the son of Mexican-American immigrants. He served for 17 years as a federal prosecutor in California, rising to chief of narcotics enforcement in the southern district. In 1997 he was believed to be the target of an assassination attempt from a Mexican drug cartel, was put under 24-hour watch by the U.S. Marshall Service for a year, was moved to a military base and eventually to Justice Department headquarters in Washington, D.C.
I am not aware of any criminal defendants who have successfully sought disqualification of a judge (or a prosecutor) based solely on the basis of that judge's race, ethnicity, gender, religion and sexual orientation. That said, I certainly have heard criminal defendants assert, like Donald Trump, that a prosecutor or a judge is biased on one of the bases. And if repeatedly making such claims in public to serve a political or personal agenda is good enough for the GOP's Prez nominee, why couldn't a criminal defendant unhappy with how a prosecution is moving forward start making similar claims to serve his hew own agenda?
Tuesday, May 31, 2016
"Marijuana Enforcement Disparities In California: A Racial Injustice"
The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:
Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction. Subsequently, misdemeanor marijuana arrests plummeted by 86 percent. Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher. This can be a substantial burden for young and low-income people. According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....
Infraction data are hard to come by in California. The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys. In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.
These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough. There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys. While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.
Cross-posted at Marijuana Law, Policy & Reform
Monday, May 30, 2016
Making the case for "Why Latinos Should Invest in Sentencing Reform"
Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:
Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.
Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.
This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.
Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....
Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.
Saturday, May 28, 2016
"To Save Our Justice System, End Racial Bias in Jury Selection"
The title of this post is the headline of this New York Times op-ed authored by one of my favorite former bosses, US Court of Appeals for the Second Circuit Judge Jon O. Newman. Like all writing by Judge Newman, this piece is astute and sensible, and it provides a sound and simple recommendation forimproving the operation of our modern criminal justice system. Here are excerpts:
The Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection. The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.
Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10. In federal death penalty cases, each side has 20. State numbers vary.
In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race. Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager. The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.” The plan worked, and an all-white jury sentenced Mr. Foster to death.
This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009....
The Advisory Committee on Rules of Criminal Procedure, which is part of the Judicial Conference, the federal court system’s principal policy-making body, should propose sharply reducing the number of jury strikes allowed in federal trials. Several Supreme Court justices have suggested as much. Justice Thurgood Marshall endorsed such a reform in his concurring opinion in the 1986 case Batson v. Kentucky: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” In 2005, Justice Stephen G. Breyer also urged reconsideration of the peremptory challenge system.
Total abolition of peremptory challenges would most likely face vigorous opposition from prosecutors and some defense attorneys. And it’s unlikely to be achieved, either for federal or state criminal trials. But reducing the number will do significant good. In 1879, the Supreme Court declared that to single out African-Americans for removal from jury service “is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” All-white juries will continue to be a blight on the American system of criminal justice until federal and state rule makers significantly reduce the number of peremptory challenges.
Prior recent related posts:
- SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"
- Dynamic commentary on SCOTUS work in Foster and related Monday news
Friday, May 27, 2016
"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."
The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:
On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped. Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.” The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country. The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....
There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent. In America, a president is the commander in chief. Anyone who voted for Obama necessarily voted for violence. Furthermore, there is indisputable evidence that violence sometimes works. The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.
But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends. Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example. Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name. If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?
Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak. The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat. And the same political officials will stand up next January and praise King even as they act contrary to his words. “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Tuesday, May 24, 2016
Dynamic commentary on SCOTUS work in Foster and related Monday news
A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman. Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:
At The Atlantic here by Garrett Epps, "The Passive-Aggressive U.S. Supreme Court: Even in the face of clear precedent, some justices just don’t like it when a convicted petitioner is right on the law."
At Bloomberg View here by Noah Feldman, "How Clarence Thomas Broke My Heart"
At Crime & Consequences here by Kent Scheidegger, "Reversal in an Ugly Batson Case"
At Crime & Consequences here by Bill Otis, "Reversal in an Ugly Batson Case"
At Slate here by Dahlia Lithwick, "Peremptory Prejudice: Racism still infects jury challenges, even if most aren’t as blatant as these awful Georgia prosecutors."
The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.
UPDATE: Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:
At Gamso, For the Defense here by Jeff Gamso, "Cognitive Dissonance - Or Maybe He Just Lied"
At Mimesis Law here by Andrew Fleischman, "Foster v. Chatman: When Prosecutors Strike"
At Simple Justice here by Scott Greenfield, "Race Neutral Reasons When Nothing Is Race Neutral"
Monday, May 23, 2016
ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:
[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.
Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.
In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.
We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.
When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.
We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
- The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
- White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”
Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)
May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Wednesday, May 11, 2016
"Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. Here are some excerpts from the start of the report:
In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S. Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent. One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court.
While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.
We find that most people who are unable to meet bail fall within the poorest third of society. Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts....
Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity. Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails. Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.
Monday, May 09, 2016
"Louisiana’s Color-Coded Death Penalty"
The title of this post is the headline of this new New York Times editorial, which gets started this way:
The last time a white person in Louisiana was executed for a crime against a black person was in 1752, when a soldier named Pierre Antoine Dochenet was hanged after attempting to stab two enslaved black women to death with his bayonet.
This is just one of many grim facts in a new report describing the history of capital punishment in Louisiana and analyzing the outcome of every death sentence imposed in that state since 1976, when the Supreme Court reversed its brief moratorium on executions and allowed them to resume.
Racism has always been at the heart of the American death penalty. But the report, in the current issue of The Journal of Race, Gender, and Poverty, drives home the extent to which capital punishment, supposedly reserved for the “worst of the worst,” is governed by skin color.
In Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man. Regardless of the offender’s race, death sentences are six times as likely — and executions 14 times as likely — when the victim is white rather than black.
Saturday, May 07, 2016
Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing
My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:
Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.
This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”
The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...
Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.
But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.
Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.
The (reader-friendly) report that provides the data for this new story can be accessed at this link.
Friday, May 06, 2016
Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences
A helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts. I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below. These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:
I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.
Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.
During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance. One also would have thought that ex-offenders were essentially indistinguishable from non-offenders. Further research revealed this to be far from the truth....
The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely. Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended. Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....
We can rest assured, then, that a substantial number of released prisoners will re-offend. Who are their victims likely to be? It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men. Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well. Those African-American men will then return to their communities, which are more likely to be predominantly African-American. It is therefore likely that the victims of those released early will also be disproportionately likely to be black. This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group. White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black. If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated. But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....
There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime. If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.
Thursday, May 05, 2016
"The only way to get rid of racial bias in death penalty cases is to get rid of the death penalty"
The title of this post is the subheadline of this notable new Slate commentary authored by Robert J. Smith, which carries the main headline "There’s No Separating the Death Penalty and Race." Here are some excerpts:
The mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases and racial cynicism into the electorate. It undermines not only the legitimacy of the death penalty, but also the legitimacy of the government as an entity capable of rendering impartial justice. It robs people of the right to participate in their government, and it makes whole swaths of people cynical about the government itself and their role in it. Yet, even if the Foster case [now before SCOTUS] provides another rebuke of the illegal practice of striking jurors because of their race, 30 years of experience suggests that the court’s case-by-case reversals will not eradicate racial discrimination in jury selection. It still happens all over the country and continues to taint our broken death penalty system....
An optimist might hold out hope that although racial bias infects these older cases, the ties between race and the death penalty have loosened in more recent cases as the nation continues to make racial progress. Unfortunately, though, while the death penalty has become increasingly rare in practice, many of the remaining cases are still intertwined with the nation’s long legacy of racism. And, even in the cases with explicit, unconscionable racial bias ... current elected prosecutors, governors, and state and federal courts have failed repeatedly to intervene or object.
Tuesday, May 03, 2016
"Do Public Defenders Spend Less Time on Black Clients?"
The question in the title of this post is the headline of this interesting new Marshall Project piece. Here are excerpts (with a couple of key links highlighted):
[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.
A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release. One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.
Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.” He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”
“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”
Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence. William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.” He looks stricken. “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”
It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”
Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].
If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.” The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”
The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here].
I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.
Friday, April 29, 2016
"Louisiana Death Sentenced Cases and Their Reversals, 1976-2015"
The title of htis post is the title of this new reseach paper by Frank Baumgartner and Tim Lyman now available via SSRN. Here is the abstract:
Since 1976, Louisiana’s experience with capital punishment has been deeply dysfunctional, with a significantly higher case reversal rate than the national average, and marked disparities in sentencing, reversals, and executions depending on the race and gender of the victim and accused. Our comprehensive analysis of each of 241 death-sentence cases in the post-Gregg period suggests that the “modern” death penalty has not resolved the issues of arbitrariness and bias that concerned the US Supreme Court in the 1972 Furman decision, which invalidated previous death penalty statutes throughout the country.
Among 155 resolved death-sentence cases, there have been 127 reversals (of which nine were exonerations) and 28 executions. Since 2000, Louisiana has seen 50 reversals of previous death sentences, including seven exonerations, and only two executions.
Not only are these reversal rates extremely high, but the racial discrepancies are shocking as well. Death sentences are imposed in 0.52% of cases with black male offenders and black male victims, but in 15.56% of cases with black male offenders and white female victims — 30 times more likely. No matter the race of the offender, killers of whites are more than six times more likely to receive a death penalty than killers of blacks, and 14 times more likely to be executed. The racial disparities even extend into the appeals process, where cases of killers of whites are clearly less likely to be reversed. No white person has been executed in Louisiana for a crime against a black victim since 1752.
Thursday, April 28, 2016
Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"
Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):
Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential. But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....
The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago. African-American women are more than twice as likely to be in prison than white women.
But women aren't the only ones affected when they are sent to prison. The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children. Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.
We can't go on like this. It is time we reform our broken criminal justice system. First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing. Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up. We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.
And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released. I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs.
Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes. Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.
And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society. Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison. "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough. In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....
Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer. Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions. We say we are a nation of second chances — and it's time that we act like it.
I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders. That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive." Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?
April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)
Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons. Here is a sampling:
From The Atlanic here, "The Racist Roots of Virginia's Felon Disenfranchisement: A century ago, the commonwealth's leaders weren't circumspect about their motives."
From the Chicago Tribune here, "Why felons should be allowed to vote"
From Fox News here, "Virginia's governor, Hillary Clinton and the felon vote"
From Huffington Post here, "Americans Don’t Think Ex-Offenders Should Lose Their Right To Vote: Millions aren’t allowed to vote, but Americans want that to change."
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
Wednesday, April 13, 2016
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)
Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill
In this post over the weekend, titled "The many challenge of a fully nuanced understanding the Clintons, crime, punishment and the 1994 Crime Bill," I highlighted nearly a dozen articles and commentary to stress that there are many nuances essential to a full understanding of just what the 1994 Crime Bill did (and did not) achieve, and just what has been the role and record of former Prez Bill Clinton (and Prez candidate Hillary Clinton) on criminal justice reforms past and present. And because these stories are so nuanced, and I glad we are continuing to see lots of worthy commentary on these fronts, such as these recent pieces from various sources:
I am very pleased to see this important 20-year-old story is getting some useful attention now as part of the 2016 campaign. But, for a variety of reasons, I hope attention soon turns to the more recent (very mixed) records of Presidents George W. Bush and Barack Obama on crime and punishment with focused questions to all the remaining 2016 candidates about whether, why and how they will be eager to continue or to change various modern federal criminal justice policies and practices.
Tuesday, April 05, 2016
Disconcerting data on racial skew in application of mandatory minimums in Iowa
This lengthy local article, headlined "Blacks hit hard by Iowa's mandatory sentences," reports on the disparity in the application of certain state sentences in the heartland. Here is how the article starts:
More than 1,190 inmates are serving time in Iowa prisons for violent crimes that, by law, require a specific number of years behind bars and at least 70 percent of the sentences be served before they're considered for parole. And at least 35 percent of those inmates are black — in a state where 3.4 percent of the population is African-American.
If you want to know why Iowa imprisons a larger share of its black residents than almost any other state, mandatory minimum sentencing laws are one place to start, critics say. Iowa's lopsided statistics have prompted the state’s Public Safety Advisory Board for three consecutive years to recommend that the Legislature ease sentencing mandates on two crimes — first- and second-degree robbery — that have been especially tough on African-Americans, said Thomas Walton, the board’s chairman and a Des Moines attorney. During a four-decade period, 42 percent of Iowa inmates serving prison time for robbery were black, state data show.
A Des Moines Register review of robbery sentencing guidelines for 11 Midwestern states shows that Iowa’s are the most restrictive. They allow the least amount of judicial discretion in determining how much time an offender will spend behind bars. “The theory behind mandatory minimum sentences was, ‘Let’s lock them up for a longer period of time … and then we’ve avoided those re-offenses for the period of time that they’ve been incarcerated,’” Walton said. “Some of those assumptions, based on studies done by our board staff, were not necessarily correct.”
Iowa finds itself embroiled in the same debate raging nationally over the impact of mandatory minimum sentences, which were put in place during the get-tough-on-crime decades of the 1980s and '90s and have ballooned prison populations....
This year, the Iowa House, acting on part of the advisory board’s recommendation, approved a bill that includes loosening the mandatory minimum sentence for second-degree robbery. Judges would have the discretion to say how much time an offender would serve — from three to seven years — before becoming eligible for parole on the 10-year sentence. Now, offenders must serve at least seven years.
But Sen. Kevin Kinney, D-Oxford, filed an amendment stripping the proposal from House File 2064, which has not been voted on by the Senate. “When there is a weapon brandished during a robbery, I have a hard time reducing the sentence,” said Kinney, a retired Johnson County sheriff’s officer. “I just don’t want to reduce penalties for violent crimes.”
Monday, April 04, 2016
"Summary Injustice: A Look at Constitutional Deficiencies in South Carolina’s Summary Courts"
The title of this post is the title of this new report produced by National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) about low-level (in)justice in the low country. Here is a summary account via this press release of Summary Injustice:
In South Carolina, the bulk of criminal cases are low-level offenses heard in municipal and magistrate courts, collectively referred to as summary courts. These courts often fail to inform defendants of the right to counsel, refuse to provide counsel to the poor at all stages of the criminal process, and force defendants who can’t afford to pay fines to instead serve time in jail.
“When you go to a summary court in South Carolina, you find yourself in a judicial netherworld where the police officer who made the arrest acts as the prosecutor, the judge may not have a law degree, and there are no lawyers in sight,” said Susan Dunn, legal director of the ACLU of South Carolina. “By operating as if the Sixth Amendment doesn’t exist, these courts weigh the scales of justice so heavily against defendants that they often receive fines and jail time they don’t deserve.”
This report documents the constitutional violations observed by attorneys with NACDL and the ACLU in 27 different courts throughout the state during several weeks between December 2014 and July 2015, including multiple stories from defendants. The U.S. Constitution guarantees that a person accused of a crime and who faces loss of life or liberty as punishment has the right to a lawyer even if he or she can’t afford one.
“Many, if not most, people will read this report and be shocked by the numerous and profound constitutional deficiencies in South Carolina’s summary courts as observed by NACDL and the ACLU since they began this research in 2014,” said longtime Rock Hill, South Carolina, criminal defense lawyer and NACDL Treasurer Chris Wellborn. “Sadly, as someone who has spent my career representing the criminally accused in South Carolina, I am only able to underscore how pervasively these courts have been disregarding the rights of the people of South Carolina, and that it’s been like this for decades.”
NACDL President E.G. “Gerry” Morris said: “While this important report, and a forthcoming second report to be released later this year, is focused on South Carolina, it is part of a larger initiative to study state level public defense delivery systems across the nation. The ultimate goal is to identify and document weaknesses in different public defense delivery systems that must be remedied as well as to highlight strengths and successes in systems that can and should be replicated elsewhere. More than 50 years after the Supreme Court’s landmark decision in Gideon v. Wainwright, the people of America are entitled to nothing less than to have their courts respect the very rights recognized and protected by the Constitution. NACDL will not waver in its mission to shine the light brightly on systems where that is not happening, and to offer policymakers effective solutions to what is quite clearly a widespread problem of constitutional dimensions.”
Saturday, April 02, 2016
"Unfinished Project of Civil Rights in the Era of Mass Incarceration and the Movement for Black Lives"
The title of this post is the title of this newly published article authored by Nicole Porter. Here is the piece's introduction:
American criminal justice system has been dominated by relentless growth for the last forty years. The culture of punishment, in part driven by political interests leveraging “tough on crime” policies and practices marketed as the solution to the “fear of crime,” has been implemented at every stage of the criminal justice process: arresting, charging, sentencing, imprisonment, releasing, and post-incarceration experiences in the era of mass incarceration.
While it may not excuse criminal offending, the destructive effects of mass incarceration and excessive punishment are visited disproportionately upon individuals and communities of color and reinforce that the project of the civil rights revolution remains unfinished. In recent years, there has been growing consensus across ideological lines to address mass incarceration. Yet, policy changes are incremental in approach and do not achieve the substantial reforms needed to significantly reduce the rate of incarceration and its collateral impacts. Incremental policy reforms include: reducing the quantity differential between crack and powder cocaine that results in racially disparate sentencing outcomes at the federal level and in certain states; reclassifying certain felony offenses to misdemeanors; expanding voting rights and access to public benefits for persons with felony convictions; and adopting fair chance hiring policies for persons with criminal records.
The Movement for Black Lives, or Black Lives Matter, offers a new public safety framework to finish the project of civil rights in the era of mass incarceration. This movement has a sophisticated analysis that seeks to address the underlying structural issues that result in poor policy outcomes for communities of color, including high rates of incarceration. The public safety framework does not excuse criminal offending, but offers a new approach of viewing justice-involved persons — a disproportionate number of whom are African American and Latino — as worthy recipients of public safety responses not dominated by arrests, admissions to prison, or collateral consequences.
Aligning a Black Lives Matter framework with public safety strategies expands policy responses beyond the criminal justice system to evidence-based interventions demonstrated to reduce criminal offending. Research shows that early childhood education, quality healthcare, and targeted employment programs can help reduce recidivism and prevent justice involvement. More importantly, the Black Lives Matter framework can help to shift norms away from the punitiveness that dominates U.S. criminal justice policy.
"Racial Disparities in Youth Commitments and Arrests"
The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:
Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half. Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years. Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.
Both white youth and youth of color attained substantially lower commitment rates over these 10 years. For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000). The combined effect was to increase the commitment disparity over the decade. The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).
As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely. Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.
Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent. Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.
Wednesday, March 30, 2016
Harvard Law School launches "Fair Punishment Project"
While I was on the road yesterday, I received an email with some exciting news from my law school alma mater. Here is the text of the email announcement:
We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.
We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it. Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.
The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society. The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.
The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.
And here are titles and links to some of the notable sentencing-related content already up at the FPP website:
- Life Without Parole – From Bad Lawyers to No Lawyer At All
- Report Finds Juvenile LWOP Sentences Concentrated in a Few Counties, Disproportionately Impact Youth of Color
Friday, March 25, 2016
"Poor white kids are less likely to go to prison than rich black kids"
The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems. Here is the post's discussion of the research:
It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.
In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.
He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.
The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.
About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.
The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.
Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....
It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....
In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.
The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.
Wednesday, March 23, 2016
"Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
The title of this post is the title of this notable new article authored by Jesse Norris now available via SSRN. Here is the abstract:
After white supremacist Dylann Roof killed nine African-Americans at a Charleston, South Carolina church, authorities declined to refer to the attack as terrorism. Many objected to the government’s apparent double standards in its treatment of Muslim versus non-Muslim extremists and called on the government to treat the massacre as terrorism. Yet the government has neither charged him with a terrorist offense nor labelled the attack as terrorism.
This Article argues that although the government was unable to charge him with terrorist crimes because of the lack of applicable statutes, the Charleston Massacre still qualifies as terrorism under federal law. Roof’s attack clearly falls under the government’s prevailing definition of domestic terrorism. It also qualifies for a terrorism sentencing enhancement, or at least an upward departure from the sentencing guidelines, as well as for the terrorism aggravating factor considered by juries in deciding whether to impose the death penalty.
Labelling Roof’s attack as terrorism could have several important implications, not only in terms of sentencing, but also in terms of government accountability, the prudent allocation of counterterrorism resources, balanced media coverage, and public cooperation in preventing terrorism. For these reasons, the Article contends that the government should treat the Charleston Massacre, and similar ideologically-motivated killings, as terrorism.
The Article also makes two policy suggestions meant to facilitate a more consistent use of the term terrorism. First, the Article proposes a new federal terrorism statute mirroring hate crime statutes, which would enable every terrorist to be charged with a terrorist offense. Second, simplifying the definition of terrorism to encompass any murder or attempted murder meant to advance an ideology would avoid the obfuscation invited by current definitions. However, even without such changes, the government still has the authority and responsibility to treat attacks such as Roof’s as terrorism for nearly all purposes.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
Sunday, March 20, 2016
"Black Kids Less Likely To Use Hard Drugs Than Whites, Still Go To Jail More"
The title of this post is the headline of this recent posting at Medical Daily providing a summary this new research paper titled "Health Disparities in Drug-and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention" published in the American Journal of Public Health. Here are excerpts from the summary:
The United States is plagued with many forms of substance abuse, and youth leaving juvenile detention are especially vulnerable. Many think African Americans in this group are especially prone to drug use, but a new study says this stereotype is unfounded. According to researchers at Northwestern, abuse of and dependence on cocaine, hallucinogens, amphetamines, and opioids is less common among African Americans than among non-Hispanic whites.
The thorough study is the first of its kind. Researchers followed the youths into their late 20s, for up to 12 years after release. At that point, non-Hispanic whites had 30 times the odds of becoming addicted to cocaine as African Americans did. “Those findings are striking, considering the widely accepted stereotype of African Americans as the most prevalent abusers of ‘hard drugs,’” said Linda A. Teplin, senior author of the study and professor of Psychiatry and Behavioral Sciences at Northwestern University Feinberg School of Medicine, in a press release.
Though whites were more likely to abuse or depend on hard drugs, their incarceration numbers didn’t follow the same pattern. According to an estimate by the U.S. Department of Justice, among males born in 2001, one in three African Americans and one in six Hispanics will be incarcerated at some point in their lives, compared with just one in 17 Caucasians. “We must address — as a health disparity — the disproportionate incarceration of African Americans,” Teplin said.
In terms of differences between the sexes, the study found that 91.3 percent of previously delinquent male youths and 78.5 percent of females had had a substance abuse disorder by their late 20s. However, males were more likely to abuse alcohol and marijuana, and females were more likely to exhibit opiate, cocaine, amphetamine, and sedative addiction.
Friday, March 18, 2016
Making the (Trumpian?) case for winning the drug war via full legalization
This cover story of the April 2016 issue of Harper's magazine is authored by Dan Baum and is headlined "Legalize It All: How to win the war on drugs." And, as I mean to suggest via the headline of this post, this article may be channeling what GOP Prez candidate front-runner Donald Trump really thinks about how to improve modern drug policy in the US. (Recall that I had this post on my marijuana reform blog, way back when Trump first announced his serious run for the Oval Office last summer, which highlights that Trump not all that long ago had once suggested full legalization would be the only way to "win" the drug war.) Here are is an except from the first part of the lengthy Harper's piece:
Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.
As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel. The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers. Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.
Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether. Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.
Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs. In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise. Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants. After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.” The Supreme Court of Brazil is considering a similar argument.
Depending on how the issue is framed, legalization of all drugs can appeal to conservatives, who are instinctively suspicious of bloated budgets, excess government authority, and intrusions on individual liberty, as well as to liberals, who are horrified at police overreach, the brutalization of Latin America, and the criminalization of entire generations of black men. It will take some courage to move the conversation beyond marijuana to ending all drug prohibitions, but it will take less, I suspect, than most politicians believe. It’s already politically permissible to criticize mandatory minimums, mass marijuana-possession arrests, police militarization, and other excesses of the drug war; even former attorney general Eric Holder and Michael Botticelli, the new drug czar — a recovering alcoholic — do so. Few in public life appear eager to defend the status quo.
A few prior related posts:
- Just what is Donald Trump's position now on modern marijuana reforms (and the modern drug war)?
- "Make No Mistake: Hillary Clinton is a Drug Warrior"
- Shouldn't front-runner Donald Trump be asked about drug war and federal marijuana policies at GOP debate?
Wednesday, March 16, 2016
"Why many black voters don't blame Hillary for tough-on-crime laws"
The title of this post is the headline of this notable Christian Science Monitor article from earlier this week which strikes me as especially timely given that Hillary Clinton's success in the most recent state primaries would seem to put her on a near-certain path to a Prez candidate nomination. Here are excerpts from the lengthy piece:
In the late 1980s and early 1990s, [gang violence and open-air drug dealing] was the everyday reality in African-American neighborhoods around the country. It was in this context that black political leaders, under pressure from their communities, pleaded for the federal government to address the drug problem. The now infamous response from the federal government was a series of bipartisan “tough on crime” laws that, instead of just cracking down on drugs and violent crime as intended, filled the country’s prisons to a breaking point, disproportionately with young black men.
Now amid bipartisan efforts to undo many of these laws, and the rise of a new generation of civil rights activists, this history has created a strange dissonance. Black Lives Matter activists have criticized Hillary Clinton, the front-runner for the Democratic nomination, for supporting these tough-on-crime policies as first lady in the ’90s. But Mrs. Clinton has ridden overwhelming support from black voters to a commanding lead in the Democratic primaries. Earlier this month, the urban black vote helped her edge out a victory in the Massachusetts primary over challenger Sen. Bernie Sanders.
“If you read some intellectuals on the left, they’d suggest there should be a grudge against the Clintons, but I think the primary results show there isn’t a grudge at all,” says Michael Fortner, a professor of urban studies at the City University of New York and author of the book “Black Silent Majority.”
Part of the reason, he notes, is that black communities are aware that for decades they were some of the loudest advocates for tough drug laws. Tough-on-crime policies, he adds, “weren’t something that just happened to black people, that were imposed on the black community…. Political leaders, mayors, and pastors played an important role in pushing for these policies.”
Another reason, he says, is that most black voters aren’t just concerned about criminal justice policy, past or present. “They’re also, like everybody else, concerned about paying their bills, they’re concerned about good schools, concerned about achieving the American dream,” he says....
“I think the African-American community, like Hillary Clinton, they’ve had to rethink their approach,” says Thomas Whalen, an associate professor of social sciences at Boston University. “And you have to. In a so-called drug war, you can’t be rigid in your position and hope to be ultimately successful — you have to be as flexible as possible based on the conditions on the ground.”...
For many decades, however, drugs were a priority. As early as June 1970, for example, Ebony magazine published an article titled: “Blacks declare war on dope.” In 1986, 16 of 19 African-American members of the House co-sponsored President Reagan’s Anti-Drug Abuse Act. And eight years later, 22 members of the Congressional Black Caucus voted for Bill Clinton’s 1994 crime bill that boosted funding to police, expanded the death penalty, and created the “three strikes” sentencing law.
Monday, March 14, 2016
"The Tyranny of Small Things" observed during local sentencing proceedings
I have long told my student that you can learn a lot by just watching, and this new paper on SSRN authored by Yxta Maya Murray reinforces this point in an interesting sentencing setting. The paper is just titled "The Tyranny of Small Things," and here is the abstract:
This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings. I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.
Wednesday, March 09, 2016
"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"
The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:
Why can’t most people in prison vote? Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin. But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.
The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.
The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.
But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.
Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement. Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....
A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment. However, that reasoning falls doubly short. Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal. Why is the right to vote excluded? Also, the social contract may not need civil death to defend it. The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.
Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country. They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere. In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths. Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.
International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico. Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.
The sky hasn’t fallen in Vermont or Maine either. Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else. Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout. At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States. The death of civil death doesn’t kill democracy.
As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":
Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief. "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."
Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.
Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
The question in the title of this post is my genuine and sincere effort to try to feel better about comments over at Crime & Consequences and other commentary from conservative pundits about my favorite SCOTUS short-lister, US District Judge Ketanji Brown Jackson. For the record, as I have previously noted, my affinity for Judge Brown Jackson is surely influenced by her prior service as a federal public defender and as a Vice-Chair of the US Sentencing Commission (during which time I had the opportunity to once dine with her at a sentencing conference). That personal bias notwithstanding, everything I can find "on paper" about Judge Brown Jackson suggests to me she is an intellectual super-star, not an "intellectual lightweight" or a dim light as she has been described by some conservative commentators.
The "on paper" credentials to which I refer are detailed here, and here is my own brief summary: Judge Brown Jackson graduated magna cum laude from Harvard College and cum laude (and was on the law review) at Harvard Law School. She clerked for two highly regarded federal judges at the district (Judge Saris) and circuit (Judge Selya) courts in Boston and then for Supreme Court Justice Breyer. She thereafter worked in prominent and challenging positions in public practice (as a federal public defender), in private practice (at the firm Morrison & Foerster) and in the most important judicial-branch government agency (as Vice-Chair of USSC). She has now been a federal district judge for three years after a unanimous confirmation vote at which, quite notably, she was supported by the current GOP Speaker of the House of Representatives who stated expressly that his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
Now, given that Judge Brown Jackson is only 45 years old and has been a district judge for just three years, I can certainly see an objective basis for asserting that she is too young and/or does not yet have enough judicial experience to be an ideal SCOTUS nominee. (That said, she is older, has been a federal judge twice as long, and has a more impressive paper record than Clarence Thomas circa 1991 when Prez GHW Bush nominated him to replace Justice Thurgood Marshall.) But give her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light. And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson.
Ergo the question in the title of this post: I would really like to hear (anonymously if needed) from folks who know more about Judge Brown Jackson's talents, preferably as a result of working directly with her professionally in the last few decades. Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C." Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement. Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- Vetting Judge Jane Kelly: should sentencing fans be rooting for her to be Prez Obama's SCOTUS nominee?
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- Should (and will) Prez Obama submit his SCOTUS nominee to the Senate this coming week?
- Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? UPDATE: Gov Sandoval does not want to be considered!
- Why I am tempted now to call two federal judges who were formerly federal public defenders "front-runners" for a SCOTUS nomination
Sunday, February 14, 2016
Prognosticating SCOTUS possibilities in light of existing politics
One of many reasons last night I first thought of Loretta Lynch as a SCOTUS nominee was because I think that, for both legacy and political reasons, Prez Obama may be very interested in nominating someone who is (1) an African American, and/or (2) a woman, and/or (3) someone who has been already confirmed to a significant federal position by the current GOP-controlled Senate. The only person who came to mine filling all three of these criteria is current Attorney General Loretta Lynch.
In this lengthy post at SCOTUSblog, Tom Goldstein talks through his thinking on this front and seems to share my view of the key factors political and practical likely to motivate Prez Obama here. But, seeing some practical problems with nominating AG Lynch, Tom concludes his post stating that "at this point I think that Judge Paul Watford is the most likely candidate." Especially because I recall Tom being spot-on in a lot of prior SCOTUS nominee predictions in recent years, I am now inclined to view Judge Watford as something of a front-runner now.
Of course, there are any number of other possibilities, and here are some helpful "short-list" articles from various thoughtful court-watchers worth checking out: from Josh Gerstein at Politico; from Dahlia Lithwick at Slate; from Dylann Mathews at Vox. After reviewing these lists, I see two additional candidates who (like Judge Watford) satisfy two of the three criteria I have listed at the outset of this post and who, in my view, have some other possible political/diversity benefits. Here are their names and backgrounds via the Vox piece:
Jane Kelly — US Court of Appeals for the Eighth Circuit
Any nominee is going to have to go through the Judiciary Committee, chaired by Sen. Chuck Grassley (R-IA). And no nominee is going to make Grassley happier than Jane Kelly, a career public defender from Iowa whose nomination for the federal bench Grassley championed, leading to a unanimous confirmation in 2013. She was also, coincidentally, a Harvard Law School classmate of Barack Obama's, graduating with him in 1991.
Her record as a defense attorney might spark some objections from law-and-order-oriented conservatives in the Senate, but it's hard to argue she lacks empathy for victims of crime. In 2004, while jogging, she was tackled and beaten by a male stranger, requiring months of recovery before returning to her practice.
None of this guarantees she will be confirmed. But if Kelly is not confirmable, it's hard to imagine anyone is.
Jacqueline Nguyen — US Court of Appeals for the Ninth Circuit
By contrast, Watford's colleague Nguyen — who was born in Vietnam and would be the first Asian-American justice — was confirmed the same month as him in 2012, by a whopping 91-to-3 margin. She's also a UCLA Law alum, and is only 50, meaning she'd have a nice long tenure. She got some criticism from liberals for filing a lone dissent defending a police officer who tased an innocent bystander, but if anything that should help her win over Republican votes. She also is far better versed in hovercraft moose-hunting jurisprudence than any other SCOTUS contender.
But Nguyen is also, for better or worse, a bit of a blank slate without that many major decisions on her record (with a possible exception being a First Amendment case where she and two Republican colleagues found a school uniform policy unconstitutional). That makes it hard to judge what kind of justice she'd be, which could make both Obama and the Senate more hesitant.
The fact that both of these women were confirmed without any significant opposition from the Senate makes them both, I think, look like more moderate picks than folks likely Lynch and Watford. In addition, for practical reasons, I think it is very significant that Judge Kelly is from Iowa and has Senator Grassley as a backer. For political reasons, the fact that Judge Nguyen is an immigrant (and did not go to any Ivy League schools) makes her a uniquely interesting possible nominee.
Prior related post:
UPDATE: I am intrigued to now see Tom Goldstein has this new post up at SCOTUSblog on this front which get tarted this way:
This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee. On reflection, I think that Attorney General Loretta Lynch is more likely. I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.
Saturday, February 13, 2016
The question in the title of this post is prompted by this press report headlined "With death penalty decision uncertain, judge delays Dylann Roof’s federal trial." Here are the details:
A federal judge on Thursday delayed Dylann Roof’s trial in the deadly attack on Emanuel AME Church because prosecutors still have not decided whether to seek execution. Roof could face the death penalty on nine of his 33 charges in federal court, but Assistant U.S. Attorney Jay Richardson said the decision by Washington-based Justice Department officials could take another two months.
Such delays in high-profile federal cases are typical. After the Boston Marathon bombings in April 2013, it took then-Attorney General Eric Holder more than nine months to announce he would seek the death penalty against Dzhokhar Tsarnaev. Nearly eight months have passed since Roof’s arrest. Attorneys for the 21-year-old Eastover resident already have said he would plead guilty if the government opts against capital punishment.
U.S. District Judge Richard Gergel urged prosecutors during a hearing Thursday in downtown Charleston to inform him promptly of any development so a trial date can be set. “There are obviously important and alternate paths to go here based on that decision,” the judge said.
Roof’s federal charges in the June 17 shooting of nine black parishioners at the Calhoun Street church include civil rights violations. Officials have called the shooting a hate crime. Because of the delays in the federal case, Roof is likely to be tried first in state court in July. State prosecutors already have said they would pursue the death penalty. Thursday’s hearing in federal court served as a chance for Roof’s defense team and prosecutors to update Gergel on the status of the case. Roof, who remains at Charleston County’s jail, was not there....
Evidence in the cases continues to flow at a steady clip. Roof’s defense team, led by attorney David Bruck, last month got a hard drive full of data, and the FBI has since authored more reports, Richardson said.
While Richardson said the government would be ready for a trial soon, Bruck said his ability to defend his client depends on the death penalty decision. A trial could be avoided, he said, if Roof pleads guilty and gets life in prison.
Roof already had waived his right to a speedy trial because his lawyers need time to review “vast amounts” of evidence to defend him in a death penalty trial, Bruck said. “He has offered to plead guilty,” said Bruck, who also represented Tsarnaev in the Boston trial. “Everybody knows that. That has been the position since the first day of this case. The only issue is the government’s decision to accept that plea.”
Federal prosecutors have said that they planned to send their case to U.S. Attorney General Loretta Lynch’s office in December. The Justice Department’s Review Committee on Capital Cases typically makes a recommendation to Lynch within 90 days. Though two representatives of the department’s Civil Rights Division, which typically leads such prosecutions, attended Thursday’s hearing, Richardson answered the judge’s questions. The prosecutor said that many people must give input and express opinions before a decision is made. “We feel like we are much closer,” he said.
I am generally disinclined to urge a prosecutorial charging decision should be rushed. But I am mystified why and ultimately troubled by the feds needing a year to decide whether to seek a capital charge in a case where there seems to be little doubt about essential offense facts. Especially with guilt not in question, with a large number of sympathetic victims, and with the offender's ugly motive making the indisputably a hate crime conparable to a form of domestic terrorism, I do not really understand why more than eight weeks, let alone eight months, are needed to decide whether to pursue a capital charge here.
Of particular significance, if a capital charge was justified against against Dzhokhar Tsarnaev, whose crime slaughtered many fewer individuals and whose was arguably less culpabale than co-conspirator older brother, I have a had time figuring out why a capital charge against Dylann Roof would not be justified. Indeed, at a time when so many are understandably concerned with whether modern criminal justice systems understand that "black lives matter ," I fear that any decision not to seek a capital charge in this case would create the impression that the nine black lives extinguished in Charleston do not matter as much as just three non-black lives extinguished in Boston.
Thursday, February 11, 2016
Notable data on racial and gender dynamics of recent changes in incarceration rates
This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:
After decades of growth, the U.S. imprisonment rate has been declining for the past six years. Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.
The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent. These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.
A similar pattern emerges for men, who compose a much larger share of the prison population. The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000. As a result, the racial disparity has shrunk by nearly one quarter.
In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.” Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."
Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.” Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.
Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.” Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....
Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.
Monday, February 08, 2016
"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"
The title of this post is the headline of this notable new Salon article authored by Daniel Denvir. Here are excerpts:
It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....
Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone. The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.
The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned. This has not so much been the case for drug dealers....
And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic. At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.
It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”
While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”
LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.
Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....
It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....
There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.
Thursday, January 28, 2016
"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"
The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:
Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.
Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
Thursday, January 21, 2016
"Why hasn’t President Obama granted clemency to a single Latina inmate?"
The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:
Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation. Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....
On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime. In total, I spent 17 years behind bars for a crime committed at age 21. I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.
But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina. Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population. They are three times more likely to go to prison than white women. And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007. There’s no shortage of worthy Latina candidates for a presidential clemency.
Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston. Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.
Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing. Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years. And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.
President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing. One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well. To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.
The War on Drugs should be called the War on Minorities. Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children. Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color. Brown lives matter, too.
Monday, January 18, 2016
Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms
Long-time readers likely know that I have long stated in this space that I think Martin Luther King, whom we all should take time to honor today, would have been concerned with criminal justice and especially sentencing issues if he had lived into the modern era of mass incarceration. I also have a tradition of spending MLK Day listening to the full legendary "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. And as I was listening to the speech this year, more than a few lines had a timely resonance in light of on-going efforts to move forward with modern criminal justice reforms. Here are some of the lines catching my ear today:
We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.... Now is the time to make justice a reality for all of God's children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality....
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom.
One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American's freedom. These beliefs keep me ever engaged in the struggle for an ever-sounder criminal justice system, keep me ever committed to the "fierce urgency of now," and keep me ever eager to encourage all to seek to satisfy the thirst for freedom without "drinking from the cup of bitterness and hatred."
With the echoes of this remarkable speech still in my head, let me conclude this honoring of Dr. King by providing links to some prior MLK Day posts (from both of my main blogs). As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).
- Should criminal justice reform be the new civil rights movement?
- Honoring MLK by asking hard questions
- Reflecting on race and criminal justice realities to honor MLK's legacy
- Another reminder of race and criminal justice realities to honor MLK's legacy
- Is there less discussion of race and criminal justice since Obama's election?
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
Thursday, January 14, 2016
Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?
The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:
Race. Guns. The Death Penalty.
If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?
Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.
Wednesday, January 06, 2016
Making the case for a "20-Year Maximum for Prison Sentences"
The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane. To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer. The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns. Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around. Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age. As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives. Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population. Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.
This impact comes at great cost as well. Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.
Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration. Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.
Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection. That’s certainly correct. But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.
For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term. A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety. And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.
While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary. Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term. Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.
Monday, January 04, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Tuesday, December 29, 2015
Interesting Texas state sentencing realities surrounding the future sentencing of 'Affluenza' teen and his fugitive mother
I tend not to blog too much about sentencing stories that are already seemingly getting too much attention in the traditional media. Ergo, I have not recently posted about the fugitive status of Ethan Couch. Couch is the Texas teen who had 15-minutes of infamy in early 2014 when, after having killed four people in a drunken-driving crash, received a 10-year probation sentence from a juvenile judge who may have been influenced by a defense psychologist's statement that Couch suffered from "affluenza" as a rich kid whose parents did not set any limits on him. But now Couch has been caught while on the run in Mexico with his mother, and this new CNN article highlights some interesting sentence aspects concerning what he and his mother are facing under Texas law.
The CNN piece is headlined "'Affluenza' teen caught, but will he get off easy?", and here are excerpts that spotlight some Texas state sentencing details that strike me as now quite interesting:
Will Ethan Couch, the "affluenza" teen, get off lightly again?, Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years probation for a 2013 drunk driving crash that killed four people.
Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy.
As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday. The district attorney explained the dilemma she faces at a news conference Tuesday:
• Ethan Couch was sentenced as a juvenile and violated his probation as ordered by juvenile court system.
• Under Texas law, Couch, now 18, would be punished for his violation in the juvenile system.
• The maximum sentence that a juvenile judge can dish out for a violation of his juvenile probation is imprisonment in a juvenile facility until Couch turns 19, which is April 11, 2016.
• The DA wants to transfer Couch's sentence to adult court. But since this violation happened in the juvenile system, Couch effectively would start with a clean slate in the adult probation system. That is, the adult court judge could not punish Couch for violations he committed as a juvenile.
• At the time a judge reassesses Couch's probation in the adult system, he has the power to put Couch in adult jail for a maximum of 120 days.
The 120 days in jail won't please those who think Couch deserves worse, but as the facts stand now, it is what the law allows. If Couch ends up on adult probation, Wilson said, and violates it as an adult, he could face up to 40 years in jail. Couch could also find himself behind bars for longer if he is found to have committed any new crimes and is charged and convicted as an adult for those crimes.
Ethan Couch's mother, Tonya Couch, has been charged with hindering the apprehension of a juvenile, and if convicted, faces between 2 and 10 years in jail, Wilson said. It's tough to explain the legal maze that stands to benefit Ethan Couch in the form of a light punishment for violating his probation.
The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."...
Couch is wanted by authorities in Tarrant County, Texas, for allegedly violating his probation. His mother, Tonya, was listed by Texas authorities as a missing person after her son's disappearance, and the authorities said they believed she was assisting him.
A warrant was issued in mid-December for Couch to be taken into custody after his probation officer couldn't reach him. He appears to have dropped off the radar after a video emerged that allegedly showed him at a party where alcohol was being consumed, according to authorities. Couch had been ordered to stay away from drugs and alcohol for the duration of his sentence probation.
His sudden disappearance reignited controversy over his case, which attracted widespread attention after a psychologist testified that Couch, who was 16 at the time of the crash, suffered from "affluenza," describing him as a rich kid whose parents didn't set limits for him. His lawyers argued that his parents should share some of the blame for the crash.
Prosecutors had requested that Couch be sentenced to 20 years behind bars. The juvenile court judge's decision to put him on probation for 10 years instead of sending him to prison outraged victims' families It also prompted many observers to question the term "affluenza," which isn't recognized as a medical condition in any formal sense. G. Dick Miller, the psychologist who said the word at the trial, later said he wished he hadn't used it. And Couch's lawyers have criticized what they say is the news media's narrow focus on the term in relation to his case.
As some regular readers know, I have long been troubled by and long complained about what I perceive as unduly lenient sentences too often handed out for serious and repeat drunk driving offenses. For that reason (and others), this high-profile sentencing case has always annoyed me because it seemed to me it was more reflective of our society's general tendency to treat drunk driving offenders too leniently than reflective of a tendency to give special breaks to serious crimes committed by rich white kids with lenient parents (though I certainly believe the general impact and import of rich white privilege at sentencing also merits attention).
Prior related posts around Couch's initial sentencing:
- Texas tough means probation for teen who killed four and injured more while drunk driving?
- Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four
- NY Times debates "Sentencing and the 'Affluenza' Factor"
Wednesday, December 23, 2015
"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"
The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.
Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
Thursday, December 10, 2015
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
- Our new publications, including Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System, Was there a Ferguson Effect on Crime in St. Louis?, State Criminal Justice Advocacy in a Conservative Environment, The State of Sentencing 2014: Developments in Policy and Practice, and U.S. Prison Population Trends: Broad Variation Among States in Recent YearsWe have had a wonderful year, and we look forward to continued success in the year ahead.