Friday, October 02, 2015
"What happens when Americans in prison come home?"
The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:
We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester. We asked them: what did prison do, or undo, in you? What do you see now that you didn’t see then? And what don’t we know about you?
It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s. Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison. Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too. As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?
Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.
"How to Fight Modern-Day Debtors’ Prisons? Sue the Courts."
The title of this post is the headline of this Marshall Project report on recent litigation brought by Alex Karakatsanis and his Equal Justice Under Law non-profit. Here is the start of the report (with links from original):
A young civil-rights attorney in Washington, D.C., is suing courts across the country for jailing defendants unable to afford their bail, court fines, and probation fees. As a result, cities in Alabama, Missouri, Mississippi, and Louisiana have recently done away with bail for misdemeanors and traffic violations.
The lawyer, 31-year-old Alec Karakatsanis, has now filed a federal lawsuit against Rutherford County, Tenn. and the private company it contracts with to collect court debts. According to the lawsuit, that company, Providence Community Corrections, ran “an extortion scheme” that “conspired to extract as much money as possible” from people who were threatened with jail time if they couldn’t pay court fees and fines.
PCC is “user funded,” which means the company does not charge the county for its services but depends solely on fees paid for by people on probation. Some of those fees include “supervision fees,” costs for drug tests and classes, and even a $25 fee for those applying for fee reductions. Before Rutherford County outsourced its probation services to PCC in 1996, the county was only collecting a fraction of fees, PCC State Director Sean Hollis told the Daily News Journal in 2014.
PCC collected over $17 million from probationers in Rutherford County between 2009 and 2014, according to the Daily News Journal. Rutherford County Judge Ben Hall McFarlin told the paper at that time: “The county didn't pay for anyone to get that money," adding that he had never sentenced anyone to jail if their only violation was a failure to pay. "I don't see where the taxpayers would disagree with that.”
The lawsuit was filed on behalf of seven plaintiffs and alleges that indigent defendants in Rutherford County have lost their jobs, houses, cars, and even sold their own blood plasma to make payments and avoid jail time.
“Everything about this scheme is in flagrant violation of U.S. constitutional law, federal law, and even specific Tennessee law,” Karakatsanis told The Marshall Project. In Tennessee, it’s illegal to imprison a person over court debt.
The suit was brought under a federal anti-corruption law accusing PCC and Rutherford County of operating a “racketeering enterprise” that misuses “the probation supervision process for profit.” A spokesman for PCC, Jeff Hahn, wrote in a statement that PCC's "mission is to encourage people to complete their probation successfully per the terms set by the courts." He added that "in each of the states we serve, we steadfastly comply with the laws governing the probation system."
It’s just the latest salvo from Karakatsanis, who helped start Equal Justice Under Law, a nonprofit civil-rights organization. Karakatsanis and co-founder Phil Telfeyan, 32, started their organization in 2014 with a grant from their alma mater, Harvard Law School, in order to challenge inequalities in the criminal justice system. The organization often works in partnership with local attorneys and nonprofits.
In November 2014, the city of Montgomery, Ala., agreed to terminate its contract with a private probation company as part of a settlement with Equal Justice Under Law. The lawsuit alleged that indigent people in Montgomery were being jailed over their inability to pay their court debts. Similar lawsuits were filed in 2015 against municipal courts in Ferguson, Mo., Jennings, Mo. and New Orleans, La., although those cities do not rely on private probation companies to collect debts.
Equal Justice Under Law has also sued six jurisdictions over their bail systems, and all six no longer require defendants to pay bail as a condition of their release. The organization filed a seventh lawsuit, in Calhoun, Ga., in early September.
Wednesday, September 30, 2015
Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"
Secretary of Education Arne Duncan today gave this notable speech at the National Press Club. The lengthy speech covers a lot of ground, but it is especially focused on the "linkage between education, or a lack thereof, and incarceration" and calls upon government to reorient funding to prioritized education over criminalization. Here are excerpts from the speech, which merits a read in full:
I want to lay out an idea today that will strike some as improbable or impractical, but which I think is essential. It's about setting a different direction as a society, a different priority — one that says we believe in great teaching early in our kids' lives, rather than courts, jails and prisons later....
The bet we're making now is clear. In the last three decades, state and local correctional spending in this country has increased almost twice as fast as spending on elementary and secondary education. Ask yourself, "What does that say about what we believe?"
Leaders at the state and local levels have the power to change that — to place a bet on getting it right with kids from the start, and on the power of great teaching in particular.
I'm not pretending for a second that schools can do this alone — that they can replace efforts to deal with poverty, hunger, homelessness, or other ills that affect our young people. But the facts about the impact of great teaching are too powerful to ignore....
The linkage between education, or a lack thereof, and incarceration is powerful. More than two-thirds of state prison inmates are high school dropouts. And an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed.
Today, our schools suspend roughly three and a half million kids a year, and refer a quarter of a million children to the police each year. And the patterns are even more troubling for children of color — particularly boys — and for students with disabilities.
We cannot lay our incarceration crisis at the door of our schools. But we have to do our part to end the school to prison pipeline. That's going to force us to have difficult conversations about race, which I'll get to in a moment.
But I want to start by talking about bold new steps our states and cities can take to get great teachers in front of our neediest kids. It's hardly a secret that it's challenging to recruit and keep fantastic teachers in the schools where the needs are greatest. The rewards of that work are extraordinary — but it's an incredibly hard job.
So here's an idea for how you put a new emphasis on schools rather than jails. If our states and localities took just half the people convicted of nonviolent crimes and found paths for them other than incarceration, they would save upwards of $15 billion a year.
If they reinvested that money into paying the teachers who are working in our highest-need schools and communities — they could provide a 50 percent average salary increase to every single one of them. Specifically, if you focused on the 20 percent of schools with the highest poverty rates in each state, that would give you 17,640 schools — and the money would go far enough to increase salaries by at least 50 percent.
I've long said great teachers deserve to be paid far more. With a move like this, we'd not just make a bet on education over incarceration, we'd signal the beginning of a long-range effort to pay our nation's teachers what they are worth. That sort of investment wouldn't just make teachers and struggling communities feel more valued. It would have ripple effects on our economy and our civic life. ...
There are lots of ways to go about this, and ultimately, local leaders and educators will know what's best for their community. But the bottom line is that we must do more to ensure that more strong teachers go to our toughest schools.
Right now, in far too many places, glaring and unconscionable funding gaps create all the wrong incentives. To take just one example — and there are many — the Ferguson-Florissant school district in Missouri spends about $9,000 per student. Eleven miles away, in Clayton, funding is about double, at $18,000 per student. How is that a plan to give kids a fair start?...
Let's invest more in the adults who have dedicated their professional careers to helping young people reach their full potential. And let's place a new emphasis on our young people as contributors to a stronger society, not inmates to pay for and warehouse.
I'm not naïve about doing all of this overnight. And for those already in the system, we can't just walk away from them — we also have to invest in education, career training, treatment, and support programs that help young people who are already involved in the criminal justice system become contributing members of our society. That's why we are starting the Second Chance Pell program, to give those who are incarcerated a better chance at going to college.
To be totally clear, I'll repeat that we are talking about savings that come from alternative paths that involve only nonviolent offenders. This is not about being soft on dangerous criminals — this is about finding ways, consistent with wise criminal justice policies, to reapportion our resources so we prevent crime in the first place....
I'm convinced that making a historic bet on getting it right from the start would pay massive returns for our families, our communities, our society and our nation's economy. According to a 2009 McKinsey report, the achievement gap between us and other top-performing nations is depriving the U.S. economy of more than $2 trillion in economic output every year.
A separate study found that a 10 percent increase in high school graduation rates would reduce murder and assault arrest rates by approximately 20 percent. And a one percent increase in male graduation rates would save up to $1.4 billion in the social costs of incarceration. So you don't have to be a liberal romantic to like the idea of investing up front in our kids. A hard-nosed look at the bottom line will take you to the same place.
I recognize that what I've just laid before you is ambitious. But, if we're serious about eliminating the "school to prison pipeline," a shift in funding is only part of what we need to do. In truth, there's a lot more we need to get right....
Taking the essential steps to expand what we know works in education should be a no-brainer. But there's more to it than just budgets and policies. Perhaps the hardest step of all is taking an unsparing look at our own attitudes and decisions, and the ways they are tied to race and class. In the wake of Ferguson, Baltimore and elsewhere, this has become a central discussion for many in America, and rightly so — if belatedly. Those of us in education cannot afford to sit back.
Let's recognize, up front, that this is among the hardest conversations we can have in education. People enter this field out of love for students and the genuine desire to see them excel and thrive. Yet we also know that suspension, expulsion and expectations for learning track too closely with race and class.
As the author Ta-Nehisi Coates recently pointed out, our high rates of incarceration, our high numbers of high school dropouts, and our high rates of child poverty are not unrelated problems....
It's difficult work, challenging centuries of institutionalized racism and class inequality. But I firmly believe a hard look at ourselves is an essential part of becoming the nation we strive to be — one of liberty and opportunity, regardless of the circumstances of your birth.
Georgia finally completes execution of female murderer
As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:
A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.
Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.
The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.
In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.
Shortly thereafter, the board announced that it would not stop the execution.
The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.
"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."
In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....
Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."
Tuesday, September 29, 2015
New papers looking closely (and differently) at offender-based sentencing considerations
I just noticed via SSRN these two new papers that take very different approaches to considering offender-based factors at sentencing:
First-Time Offender, Productive Offender, Offender with Dependants: Why the Profile of Offenders (Sometimes) Matters in Sentencing by Mirko Bagaric and Theo Alexander
Evidence-Based Sentencing: Public Openness and Opposition to Using Gender, Age, and Race as Risk Factors for Recidivism by Nicholas Scurich and John Monahan
Monday, September 28, 2015
"The Real Roots of ’70s Drug Laws"
The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner. Here are excerpts:
The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice. But many more still die at the hands of black neighbors instead of the police. Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.
That’s because some consider talk of black-on-black violence a distraction. This is a natural outgrowth of the view that the over-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement. But this is too convenient a narrative. It erases the crucial role that African-Americans themselves played in the development of the current criminal justice system.
Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities. It is, in part, the unintended consequence of African-Americans’ own hardfought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.
The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives. During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods. After the Harlem riots of 1964 (which erupted following the shooting of a 15-year-old black male by a white cop), polls showed that many African-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....
In 1969, the Manhattan branch of the N.A.A.C.P. issued an anticrime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.
Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people. Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...
Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change. But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects. Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half-century of social and economic decline. But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.
But longterm strategies can’t provide immediate relief from the daily horrors of urban crime. In the short run, we need the police. We need aggressive law enforcement methods that do not harass or brutalize the innocent. Ultimately, though, we can’t eliminate the propensity to overpolice and overimprison unless we curb the disorder and chaos that threaten and destroy urban black lives. As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.
Friday, September 25, 2015
Duchess of Cambridge creates surprising Princess prison diaries in UK
As reported in this article from across the pond, headlined "Kate Middleton meets killers on secret visit to high security women's jail," the world's most famous princess made a notable field trip today. Here are the details:
The Duchess of Cambridge has been behind bars today meeting inmates in a women's prison. Kate visited HMP Send in Woking, Surrey to learn how it is helping some of its 282 inmates overcome drug and alcohol addiction to rebuild their lives.
Arriving this morning the royal mum spent 90 minutes inside the high security prison where many are serving life sentences for murder. HMP Send's notable prisoners have included road rage killer Tracie Andrews who served 14 years for murdering her fiancee in December 1996 and the Duchess of York's former dresser Jane Andrews who also spent 14 years in prison for murdering her boyfriend in 2000.
Dressed smartly and showing off her new-look fringe, Kate, 33, was greeted by the governor before meeting prisoners hearing their stories of addiction and crime. She also met ex-inmates and heard how the programme helped them turn their lives around.
Kensington Palace said in a statement: “The visit reflects the Duchess's interest in learning how organisations support people living with substance misuse issues, and the impact of addiction within the wider family network. “As Patron of addiction charity, Action on Addiction, she is aware that addictions lie at the heart of so many social issues and the destructive role that substance misuse plays in vulnerable people's and communities' lives.”
Kate was viewing the work carried out by the Rehabilitation of Addicted Prisoners Trust (RAPt) which operates in HMP Send and 25 other prisons across the country. Their treatment programme at HMP Send is the only one of its kind for women in Britain. It is tailored to support female prisoners with addiction who have often experienced deep trauma, focusing on building healthy relationships with partners, children and other family members after the often traumatic and damaging impact of addiction and crime.
Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums
This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:
The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.
Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.
In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.
Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.
The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.
Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....
Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.
Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.
Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.
Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.
Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.
Thursday, September 24, 2015
Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:
Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.
Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.
Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.
Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.
The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”
The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.
The referenced appellate court certification opinion is available at this link, and it begins this way:
We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.
Monday, September 21, 2015
"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"
The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:
Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment. Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater. Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.
These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed. Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration. This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor. It is never tolerable to inflict serious bodily or sexual injury on another person. Deprived background should not mitigate such crimes.
A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes. While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration. This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences. A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.
To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens. Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.
Sunday, September 20, 2015
"Mass Incarceration Has Become the New Welfare"
The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it. Here are excerpts:
When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head. Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.
Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school. These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way. And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses. This is what the historian Mike Davis once called “carceral keynesianism.”
What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.” Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.
But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted. Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime. In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery. It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....
The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes. The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up. Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons. Their return to the social services provided by incarceration, from this angle, makes a degree of sense. And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent....
Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.” Mustering the requisite political and social resolve to make those changes may seem impossible. But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison?
Thursday, September 17, 2015
Notable Left/Right morality accounting of the "Truth about Mass Incarceration"
Providing the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States. The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full. Here is an except from heart of the commentary, as well as its closing paragraph:
So the stock liberal charges against “mass incarceration” simply don’t hold water. There is no racist conspiracy, nor are we locking everyone up and throwing away the key. Most prisoners are guilty of violent or property crimes that no orderly society can excuse. Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.
But just because liberals are wrong does not mean the status quo is right. Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons. The criminal-justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets. And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like. As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.
Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities. Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods. Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims. But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....
American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.
Wednesday, September 16, 2015
"Who Pays? The True Cost of Incarceration on Family"
The title of this post is the title of this new report based on research by a number of public policy groups. Here is the executive summary:
For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation’s unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.
As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.
Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.
Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one’s conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.
Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.
Our nation’s criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.
Tuesday, September 15, 2015
"Here’s why Obama should pardon hundreds more women"
The title of this post is part of the headline of this recent Fusion commentary authored by Amy Ralston Povah. Here are excerpts:
After the fifth year in prison, each additional year begins to eat into the layers of your soul. Parents pass away, friends drift off, spouses find someone else. Children grow up, graduate, get married, have children of their own; holidays come and go, and when that 7th, 15th or 22nd year rolls around, you feel like your heart is being crushed.
I shared those emotions with the women I served time with at FCI Dublin, a correctional facility in northern California. I was serving 24 years on a drug conspiracy charge, arrested for collecting bail money for my husband, who manufactured MDMA. He was the kingpin, but he only received three years probation because he cooperated with the prosecutors. I refused a plea bargain, and I got stuck in jail.
So when President Clinton commuted my sentence on July 7, 2000 — after I’d served 9 years and 3 months — I felt like I had won the lottery. The prison compound erupted into cheers and marched me across the yard to the gate on the day I left. And yet, it was a bittersweet victory. While I was elated for myself, it was hard to walk away, knowing I would not see these women the next day, or possibly ever again.
I felt that mix of bittersweet emotions again this summer when President Obama commuted the sentences of 46 nonviolent drug offenders, more than any sitting president in the last 50 years. It was the result of Clemency Project 2014, a federal initiative that encouraged over 35,000 prisoners to apply for clemency. On one day, 42 men and four women were the lucky lottery winners chosen from a massive number of candidates....
Having served time with over a thousand women, I believe they are the hardest hit victims in the war on drugs. Many women are indicted because they are merely a girlfriend or wife of a drug dealer, yet are not part of the inner circle and have limited information to plea bargain with. Mandatory minimums are reserved for those who do not cut a deal with prosecutors.
Women are being overlooked by the Department of Justice as candidates worthy of a seat on that coveted commutation list. Over the last 30 years, the female prison population has grown by over 800% while the male prison population grew 416% during the same timeframe. More than half of the mothers in prison were the primary financial supporters of their children before they were incarcerated. And the vast majority of women in federal prison were put there due to conspiracy laws that hold them equally culpable for the criminal actions of other co-defendants, often a spouse or boyfriend. In other words, many women are guilty by association.
There are hundreds of women sitting in federal prison on drug conspiracy charges who deserve clemency — most of them first offenders serving life without parole. Alice Johnson is an accomplished playwright who has served 18 years on a life sentence for cocaine conspiracy and has the support of three members of Congress. Josephine Ledezma has already served over 23 years and is still waiting to have her petition filed. Sharanda Jones has served 15 years; filed for clemency in 2013 and has over 270,000 supporters on change.org. Michelle West has served 22 years of a double life sentence, plus fifty years, in a case where the key witness was given immunity and never served a day for a murder he admitted to.
Some days, sitting in prison, you think life can’t get any worse. And then another blow comes when 46 people receive clemency and your name is not on that list. Many of the same women I said goodbye to in 2000 are still in prison, serving 30 years to life, even though, like myself, they were minor participants in a nonviolent drug conspiracy case.... But with a stroke of his pen, President Obama can help right the wrongs of the past and give these deserving women a second chance at life. He should get started right away.
"Unequal Assistance of Counsel"
The title of this post is the title of this notable new paper by Peter Joy now available via SSRN. Here is the abstract:
There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.
The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population. This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.
The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment. This guarantee suggests that everyone, rich and poor, is equal before the law. But the reality of the criminal justice system is much different for the majority of those charged with crimes. If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal. This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population. As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.
This article explores how unequal assistance of counsel contributes to unequal justice. The article begins with a brief overview of racial disparities in the ways laws are enforced. The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer. Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering. It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.
Two very interesting (and very different) long reads about mass incarceration and drug dealing
I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:
From The Altantic here by Ta-Nehisi Coates, "The Black Family in the Age of Mass Incarceration: American Politicians are now eager to disown a failed criminal-justice system that’s left the U.S. with the largest incarcerated population in the world. But they've failed to reckon with history. Fifty years after Daniel Patrick Moynihan’s report 'The Negro Family' tragically helped create this system, it's time to reclaim his original intent."
From The Huffington Post here by Steven Brill, "America's Most Admired Lawbreaker: Over the course of 20 years, Johnson & Johnson created a powerful drug, promoted it illegally to children and the elderly, covered up the side effects and made billions of dollars. This is the inside story."
Monday, September 14, 2015
"How Obama can use his clemency power to help reverse racism"
The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:
In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes. The White House is probably now contemplating the next batch of clemency grants, which is expected in October.
It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.
On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death. Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason. Race should also matter in providing relief via clemency today.
Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.
Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms. It is found in laws that look fair, but nevertheless have a racially discriminatory impact. For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....
Moreover, we know that even now prosecutors use the law unfairly to punish black defendants. Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites. Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism. But there is a growing consensus that the system is flawed and structurally biased against blacks.
The number of African-Americans jailed under these laws and policies soared in the past few decades. Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich. Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....
As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences. We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility. And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities. This does not reflect a racial bias. It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.
Friday, September 11, 2015
DOJ files amicus brief in PA Supreme Court supporting prosepctive "constructive denial of counsel claims"
As reported in this press release, the US "Department of Justice has filed an amicus curiae brief in the Supreme Court of Pennsylvania in Adam Kuren, et al. v. Luzerne County, et al.," a case concerning local county's public defense structure. Here is more about the case and the filing via the press release:
The class action asserts that the public defense system in Luzerne County, Pennsylvania, is so underfunded and poorly staffed that the attorneys appointed to represent indigent adults accused of committing criminal acts are attorneys in name only. The department’s brief focuses solely on the question of whether indigent defendants can bring a civil claim alleging a constructive denial of counsel under the Sixth Amendment to the United States Constitution. This brief represents the department’s first filing to address constructive denial of counsel in a state’s highest court.
“For too many public defenders, crushing caseloads and scarce resources make it impossible to adequately represent clients who need and deserve assistance in legal matters,” said Attorney General Loretta E. Lynch. “The Constitution of the United States guarantees adequate counsel for indigent defendants, and the Department of Justice is committed to ensuring that right is met.”
“This brief recognizes the importance of the right to counsel as fundamental to a fair criminal justice process,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division. “The Civil Rights Division will continue to ensure that this essential right is protected.”...
In Kuren, the plaintiffs allege that their Sixth Amendment right to counsel has been violated by the failure of the county to provide adequate resources to the Luzerne County Office of the Public Defender (OPD). According to the plaintiffs, due to the overwhelming volume of work, OPD lawyers are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, engaging in motion practice, conducting factual investigations or devoting the time necessary to prepare for hearings, trials and appeals. The plaintiffs claim that the conditions are systemic and so egregious that although a lawyer may technically be appointed to represent them, they will be constructively denied their right to counsel.
In its amicus brief, the department asserts that, “the Sixth Amendment right to counsel requires more than the mere appointment of a member of the bar.” Additionally, the amicus brief goes on to explain that the right of indigent criminal defendants to an attorney may be violated by the government’s “actual denial of counsel or by a constructive denial of counsel.” A civil action to remedy such violations is viable when traditional markers of representation such as “timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case” are systemically absent or compromised and when substantial structural limitations “such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices” result in such absence or limited representation.
This notable DOJ amicus brief is available at this link.
Monday, September 07, 2015
"The New Peonage"
The title of this post is the title of this notable new article by Tamar Birckhead now available via SSRN. Here is the abstract:
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.” It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.
September 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)
Tuesday, September 01, 2015
"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"
The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:
This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.
However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites. After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent. These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.
September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)
Monday, August 24, 2015
Might any Prez candidate pledge to put a criminal defense attorney on the Supreme Court?
The question in the title of this post is prompted by this CBS News dispatch from the presidential campaign trail headlined "Chris Christie makes a Supreme Court promise." Here are excerpts from the piece:
New Jersey Gov. Chris Christie on Thursday pledged that if elected president, his first Supreme Court nominee would not be a Harvard Law or Yale Law School graduate. "I think you can be pretty sure of that fact," he promised radio talk show host Hugh Hewitt.
In an interview with Hewitt, Christie argued that Americans were tired of the "education establishment" and implied that success was not limited to those who hold an Ivy League education. Five of the current Supreme Court justices are Harvard Law graduates, while three are Yale graduates. Justice Ruth Bader Ginsburg received her law degree from Columbia Law School.
The governor mentioned that his ideal U.S. Supreme Court appointees would come from various backgrounds and would know that their rulings affect "real people's" lives every day. "You need folks who have real life experiences, who have had real struggles, and who have made a difference in their communities in ways that are different than just going to an Ivy League school."
My first reaction to these comments was to find remarkable how similar candidate Christie's comments about selecting judges are to Prez Obama's (often criticized) comments about the importance of judges having "a keen understanding of how the law affects the daily lives of the American people" and having "that quality of empathy, of understanding and identifying with people’s hopes and struggles."
Upon second thought, though, I came to realize that what is really lacking on the Supreme Court are jurists with experience as criminal defense attorneys. Most notably, the last four appointed Supreme Court Justices all had experience as prosecutors and/or members of the US Department of Justice. (In reverse order, Justice Kagan has been US Solicitor General, Justice Sotomayor had been a NY state prosecutor, Justice Alito had been a US Attorney for New Jersey, and Chief Justice Roberts had been a senior official in the Justice Department.)
Of course, despite their Ivy League degrees and some similar resume lines, I think all the current Justices, thanks in part to significant time in a variety of professional roles other than just as a government lawyer, did come onto the Court with some diverse "real life experiences" and "real struggles." Still, I think candidate Christie is making a reasonable pith for greater educational (and personal and professional?) diversity on the Supreme Court. And especially now that criminal justice reform is a hot-topic on the campaign trail, it is now at least possible to imagine that a future President would seriously consider nominating for the Supreme Court somebody with a background in criminal defense.
Spotlighting disparities in who gets drug treatment in prison
This notable new Pacific Standard article shines a spotlight on yet another arena in which race and other personal factors may impact the operation of our modern criminal justice system. The piece is headlined "Who Does, and Who Doesn’t, Get Drug Treatment in Prison: New research finds a racial disparity," and here are excerpts (with a few key links preserved):
Research has consistently shown how important it is for inmates who come into prison with drug addictions to get treatment behind bars: Drug use in prison that involves needles can spread disease, and cold-turkey withdrawals can lead to overdoses when people get out. But new research also shows that, even when drug treatment is available to prison inmates, not everyone actually takes advantage of it. In fact, the disparity between who does and does not seek treatment often falls among racial lines.
For her recent article in the journal Addictive Behaviors, University of Colorado–Boulder sociologist Kathryn Nowotny looked at survey information gathered in 2004 from state prisons across the country — over 5,000 inmates in 286 prisons. She found that fewer than a half of the inmates who had drug dependency problems had received any kind of treatment at all in their time behind bars. Of those who had, the most commonly referenced treatment was “self-help groups” (as opposed to, say, opioid replacement therapy). And she also found that, when treatment was available, Hispanic inmates who had drug dependency were much less likely than either white or black inmates to utilize it. But why?
Nowotny wrote that she was motivated to examine the racial disparities in drug treatment program use in prisons because there was a dearth of research on this topic. But many other researchers have previously found the same patterns in drug treatment programs out in the communities as well. She notes that — in addition to the widely held consensus viewpoint that people of color have disproportionate contact with every stage of the criminal justice system in America — programs that divert first-time drug offenders out of prison and into alternative treatment have often been shown to favor those defendants “with economic and social resources.” But the disparity she found in treatment during prison sentences was apparent, even when she accounted for all of the other possible factors, like age, gender, marital status, socioeconomic factors, mental health, and criminal history.
In looking for reasons for the disparity, she points to another finding — that white inmates with drug dependency issues are more likely than Hispanic ones to have in-prison drug treatment mandated as part of their sentences. There could also be a much simpler reason for the difference in drug treatment participation. “It is also possibly that language barriers and other indicators of acculturation account for this disparity especially considering that one in five Latinos in prison are foreign born,” she adds. “This hypothesis is bolstered by the fact that no black-white disparities were found.”
A similar study, published in 2013 in the International Journal of Offender Therapy and Comparative Criminology, looked not at state prison inmates but at people being held in county jails that offered drug treatment programs. But the researchers in that study did not find that the differences broke down on more personal lines. They did not find a disparity between jail inmates of different races or ethnicities; here, it was more an issue of age and individual outlook. Younger people were less likely to seek treatment. Men were less likely than women to accept this kind of help. So were people who said they doubted whether they had the discipline or the time to make it stick.
Saturday, August 22, 2015
"Guns and Drugs"
The title of this post is the title of this notable new paper by Benjamin Levin now available via SSRN. Here is the abstract:
This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.
The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.
Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.
August 22, 2015 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)
Tuesday, August 18, 2015
Lots and lots of good summer reads about US criminal justice problems
Among the many benefits I see in lots more political and policy attention to mass incarceration and broader American criminal justice concerns is the presence of lots more thoughtful (old and new) media coverage of problems in current US policies and pactices. Here are just a few examples of both news coverage and commentary catching my eye early in this mid-summer week:
From The Daily Beast here, "95% of Prosecutors Are White and They Treat Blacks Worse: Black men are 65 percent more likely to be hit with ‘mandatory minimum’ sentences than the average defendant."
From The Nation here, "Prison Education Reduces Recidivism by Over 40 Percent. Why Aren’t We Funding More of It?"
From the New York Times here, "With Clemency From Obama, Drug Offender Embraces Second Chance"
From Real Clear Markets here, "How Hospitals Could Help Reduce Prison Recidivism"
From The Volokh Conspiracy here, "More fuel for the movement to reform sex offender laws"
Sunday, August 09, 2015
Why aren't sentencing recommendations part of the ABA-LDF's "Joint Statement on Eliminating Bias in the Criminal Justice System"?
I just came across recently this intriguing and lengthy "Joint Statement on Eliminating Bias in the Criminal Justice System" put together and released last month by the American Bar Association and the NAACP Legal Defense and Educational Fund. The statement has a lengthy introductory discussion of concerns about racial bias in the operation of American criminal justice systems, and here is part of this intro:
Given the history of implicit and explicit racial bias and discrimination in this country, there has long been a strained relationship between the African-American community and law enforcement. But with video cameras and extensive news coverage bringing images and stories of violent encounters between (mostly white) law enforcement officers and (almost exclusively African-American and Latino) unarmed individuals into American homes, it is not surprising that the absence of criminal charges in many of these cases has caused so many people to doubt the ability of the criminal justice system to treat individuals fairly, impartially and without regard to their race.
That impression is reinforced by the statistics on race in our criminal justice system. With approximately 5 percent of the world’s population, the United States has approximately 25 percent of the world’s jail and prison population. Some two-thirds of those incarcerated are persons of color. While crime rates may vary by neighborhood and class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and incarceration rates are unaffected by attitudes and biases regarding race....
Given these realities, it is not only time for a careful look at what caused the current crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial bias – in all of its forms – from the criminal justice system.
The statement then goes on to list 12 detailed action items in the form of reforms viewed to be "necessary investments that are essential to strengthening public confidence in the rule of law and the legitimacy of our justice system. Dinconcerningly, though, none of these reforms addresses directly or even indirectly reforming sentencing laws that have initially emerged from questionable (and often racialized) assumptions and that have an indisputably disproportionate impact on communities of color. Here I am thinking particularly about the enduring federal crack/powder sentencing differential and many state felon disenfranchisement laws.
In addition, missing from the urged reforms is the useful idea long promoted by Marc Mauer and The Sentencing Project: having 'Racial Impact Statements' similar to fiscal or environmental impact statements prepared for any proposed criminal justice legislation so that legislators and the public can better assess and examine possible racial effects of all proposed legal reforms.
In the end, I guess I understand the sentencing omissions in the Joint Statement given that recent controvesial police-citizen encounters seem to have been the driving force behind the document. Still, I find it both curious and troubling that two critical advocacy institutions, both of which have played very important roles in advocating for sentencing reform, failed to have a least one of a dozen of bias-elimination reform proposals speak directly to modern sentencing laws and practices.
Thursday, August 06, 2015
"Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century"
The title of this post is the headline of this new paper just now appearing on SSRN and authored by Meg Beardsley, Sam Kamin, Justin F. Marceau and Scott Phillips. Here is the abstract:
This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state.
Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.
Wednesday, August 05, 2015
"Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement"
The title of this post is the title of this notable new paper available via SSRN authored by Donna Coker and Ahjane Macquoid. Here is the abstract:
We demonstrate that among the many negative results of hyper-incarceration is the risk of increased domestic violence. In Part I, we describe the growth of hyper-incarceration and its racial, class, and gender disparate character. This growth in criminalization has been fueled by racist ideologies and is part of a larger neoliberal project that also includes disinvestment in communities, diminishment of the welfare state, and harsh criminalization of immigration policy. We place the dominant crime-centered approach to domestic violence in this larger neoliberal context.
The well-documented harms of hyper-incarceration -- collateral consequences that limit the economic and civic opportunities of those with criminal convictions; the emotional and economic harms to families of incarcerated parents; prison trauma and the deepening of destructive masculinities; the weakening of a community’s social structure, economic viability, and political clout -- produce harms that research demonstrates are tied to increased risks for the occurrence of domestic violence.
Anti-domestic violence advocates have responded to neoliberal anti-poor and anti-immigrant policies with two strategies: exceptionalizing domestic violence victims and expanding the reach of VAWA. These strategies are likely to become less tenable in the current political climate. We argue for a more inclusive political alignment of anti-domestic violence organizations with social justice organizations that addresses the larger structural inequalities that fuel violence. A key part of that alignment is opposition to hyper-incarceration.
Monday, August 03, 2015
US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act
As reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:
Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”
To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:
• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;
• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;
• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,
• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.
The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.
August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Saturday, August 01, 2015
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
Friday, July 10, 2015
“The Sexual Abuse to Prison Pipeline: The Girls’ Story”
The title of this post is the title of this notable new report coming from a collaboration by the Human Rights Project for Girls, the Georgetown Law Center on Poverty and Inequality, and the Ms. Foundation for Women. Here is the report's introduction:
Violence against girls is a painfully American tale. It is a crisis of national proportions that cuts across every divide of race, class, and ethnicity. The facts are staggering: one in four American girls will experience some form of sexual violence by the age of 18. Fifteen percent of sexual assault and rape victims are under the age of 12; nearly half of all female rape survivors were victimized before the age of 18. And girls between the ages of 16 and 19 are four times more likely than the general population to be victims of rape, attempted rape, or sexual assault.
And in a perverse twist of justice, many girls who experience sexual abuse are routed into the juvenile justice system because of their victimization. Indeed, sexual abuse is one of the primary predictors of girls’ entry into the juvenile justice system.4 A particularly glaring example is when girls who are victims of sex trafficking are arrested on prostitution charges — punished as perpetrators rather than served and supported as victims and survivors.
Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests. More harmful still is the significant risk that the punitive environment will re-trigger girls’ trauma and even subject them to new incidents of sexual victimization, which can exponentially compound the profound harms inflicted by the original abuse.
This is the girls’ sexual abuse to prison pipeline.
This report exposes the ways in which we criminalize girls — especially girls of color — who have been sexually and physically abused, and it offers policy recommendations to dismantle the abuse to prison pipeline. It illustrates the pipeline with examples, including the detention of girls who are victims of sex trafficking, girls who run away or become truant because of abuse they experience, and girls who cross into juvenile justice from the child welfare system. By illuminating both the problem and potential solutions, we hope to make the first step toward ending the cycle of victimization-to-imprisonment for marginalized girls.
Thursday, July 02, 2015
Making the forceful (and effective) case that modern bail systems operate unconstitutionally
This recent Slate piece, headlined ""Is Bail Unconstitutional?: Our broken system keeps the poor in jail and lets the rich walk free," highlights some impressive efforts by impressive lawyers to litigate strategically modern problems in modern bail structures. Here are excerpts:
Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.
It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture. Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional. Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.
Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront. The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to. While the lawsuit against Dothan has not been dropped — Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent — it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.
For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more. The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release. Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area. “Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk — not how much money’s in their pocket.”...
Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level. The reasons for this are strategic. For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice....
That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet — only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained. For now Karakatsanis is focused on taking incremental steps. “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”
Sunday, June 28, 2015
"Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice"
The title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice. Here is how the report is summarized:
People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.
This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Friday, June 19, 2015
Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about. The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:
South Carolina’s governor on Friday called for the 21 yearold man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.
“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.” The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”
“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”
Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....
On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”
In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....
In downtown Charleston, there was already talk of the longterm anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35-year-old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”
Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.
For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators. For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.
Thursday, June 18, 2015
New ACLU lawsuit assails public defender system in Idaho
This new AP piece, headlined "ACLU Sues Idaho in Push to Improve Public Defender System," reports on a notable new civil rights lawsuit in the Gem State. Here are the details:
A national civil liberties group has brought its fight to overhaul the criminal defense system for low-income defendants to Idaho with a lawsuit that says the state hasn't done enough to make sure poor people are being fairly represented.
The American Civil Liberties Union contends state officials have known for several years that overwhelming case loads, underfunded budgets and a patchwork system that varies county by county prevent defendants from receiving adequate legal representation guaranteed by the U.S. Constitution.
Idaho officials, including the governor and attorney general, declined to comment Wednesday on a case that continues a national push for the ACLU....
The organization has brought similar lawsuits in several states recently, reaching settlements in New York and Washington after the U.S. Justice Department intervened on the ACLU's behalf and state officials agreed to sweeping reforms.
The Idaho case names four plaintiffs who say they've spent months in jail without speaking to their court-appointed attorneys or that their cases weren't properly reviewed, and the organization is seeking class-action status so the case will apply to all low-income defendants in the state. The filing asks a state judge to order Idaho officials to implement a better system....
Lawmakers and a special Criminal Justice Commission have examined the issue, but the ACLU says meaningful changes haven't been made. For their part, legislators created the Idaho Public Defense Commission last year. Members have been asked to create standards, training programs and a data collection system and to keep lawmakers informed about any problems. The ACLU says that's not enough. "Astoundingly, the State failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system," ACLU-Idaho attorney Ritchie Eppink wrote in the lawsuit.
Members of the Public Defense Commission were named as defendants in the lawsuit, along with Republican Gov. C.L. "Butch" Otter and the state. Ian Thompson, the commission's executive director, declined to comment on the case, though he said members will discuss it during a meeting Thursday.
A copy of the ACLU lawsuit can be accessed at this link via the ACLU website.
Sunday, June 14, 2015
Fascinating account of how "how neoliberalism lies at the root of the carceral state"
The always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform." The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:
Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings. So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations. Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”
This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate. But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.
For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can. Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....
[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities. The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.
That discretion could be turned toward lenience. President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency. Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007). The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association. For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.
Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions. Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....
Alleviating the root causes of poverty and inequality will take a long time. In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.
I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.
June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)
Saturday, June 13, 2015
"The Impact of Drug Policy on Women"
The title of this post is the title of this intriguing recent report from the Open Society Institute. Here is its introduction:
In the public mind, the “war on drugs” probably conjures up a male image. In most countries, official statistics would show that men, indeed, are the majority of people who use drugs recreationally, who have problematic use, and who sell drugs. But punitive drug laws and policies pose a heavy burden on women and, in turn, on the children for whom women are often the principal caregivers.
Men and boys are put at risk of HIV and hepatitis C by prohibitionist policies that impede access to and use of prevention and care services, but women and girls virtually always face a higher risk of transmission of these infections. Men suffer from unjust incarceration for minor drug offenses, but in some places women are more likely than men to face harsh sentences for minor infractions. Treatment for drug dependence is of poor quality in many places, but women are at especially high risk of undergoing inappropriate treatment or not receiving any treatment at all. All people who use drugs face stigma and discrimination, but women are often more likely than men to be severely vilified as unfit parents and “fallen” members of society.
This paper elaborates on the gender dimension of drug policy and law with attention to the burdens that ill-conceived policies and inadequate services place on women and girls.
Wednesday, June 10, 2015
"Invisible Women: Mass Incarceration's Forgotten Casualties"
The title of this post is the title of this notable new paper authored by Michele Goodwin now available on SSRN. Here is the abstract:
This Essay fills an important gap in social and legal policy literature, addressing the intersection of sex and mass incarceration as a serious blind spot in legal analysis. It considers two works, James B. Jacobs’ The Eternal Criminal Record, and Alice Goffman’s On The Run to make important contributions to the literature. Among its claims, it argues that Black lives should matter to human research.
In Part I, it critiques Goffman’s book as fitting within a paradigm that pays too little attention to ethical standards and moral considerations involving Black human research subjects. This is particularly relevant in light of Goffman’s hunger for one of her primary research subject’s “killer to die.” It argues that cognitive bias — perceiving poor, African American human subjects as already marginal, blinds researchers to appreciating the harms in which they may expose their subjects. Part II turns to the missing narrative of women and mass incarceration in the U.S. It sheds light on and analyzes the complex patterns that frame women’s subjugation to law enforcement — issues absent in On The Run. Part III analyzes the extra-legal and collateral consequences of policing women, including felony disenfranchisement, loss of housing, and the chilling impacts on their children. It unpacks, what Professor James Jacobs terms, the eternal criminal record, and teases out findings in his compelling new book of the same name.
Should bail reform be a key component of sentencing reform efforts?
Ever the sentencing obsessive, I tend to not focus too much attention on various aspects of criminal procedure that impact case processing before a defendant is formally convicted. But this new New York Times article, headlined "When Bail Is Out of Defendant’s Reach, Other Costs Mount," provides a useful reminder of the significant role that bail prolicies and procedures have on all other aspects of criminal case processing. Here is the start of the lengthy piece, with one particularly important line highlighted:
Dominick Torrence, who has lived in this city all his life, has a long rap sheet for dealing drugs but no history of violence. So when he was charged with disorderly conduct and rioting on April 28, a night of unrest after Freddie Gray was fatally injured in police custody, he was shocked to learn the amount he would need to make bail: $250,000, the same amount as two of the officers facing charges over Mr. Gray’s death.
Although a bail bondsman would charge only a fraction of that, normally 10 percent, for many defendants $25,000 is as impossible a sum as $250,000. “That’s something you get for murder or attempted murder,” Mr. Torrence, 29, said from Baltimore Central Booking. “You’re telling me I have to take food out of my kid’s mouth so I can get out of jail.”
He spent a month in jail on charges that would later be dropped. Defense lawyers, scholars and even some judges say the high bail amounts set for some Baltimore protesters highlight a much broader problem with the nation’s moneybased bail system. They say that system routinely punishes poor defendants before they get their day in court, often keeping them incarcerated for longer than if they had been convicted right away. “It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” said Paul DeWolfe, the Maryland state public defender.
Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide.
Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant. This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.
The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-risk poor people in jail unnecessarily and at great cost to taxpayers.
For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families. Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent criminal records.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. An estimated half a million people are in the country’s jails on any given day because they cannot make bail. And even bail amounts much lower than those routinely seen in Baltimore can be prohibitive.
The sentence I have emphasized above surely correct based on anecdotal accounts from defendants and defense attorneys, but I would be especially interested to know if any serious and rigorous empirical work has been done to assess just how many non-guilty defendants (and/or defendants who could raise reasonable defenses at a trial) may take plea deals because they could not make bail and because a public defender tells the defendant they would necessarily serve a lot longer while awaiting trial AND face an even more sentence if they end up convicted after a trial. In turn, especially because even low-level criminal history can lead to significant sentencing enhancements in any future case, these bail issues and consequences may ripple through modern sentencing systems in a number of ways.
Sunday, May 24, 2015
Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity
Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings. The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:
Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”
Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges. Videos, especially wellproduced ones, can be powerful. In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14minute video as part of his sentencing. Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.
As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before. The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works. Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.
Yet efforts like those on behalf of Mr. Chatwal are hardly standard. While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack-up-the-hours, fight-tooth-and-nail defense like Mr. Chatwal did.
Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules. “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday. He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”
Mr. Jayadev’s nonprofit, Silicon Valley DeBug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same. The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up. With a $30,000 grant from the Open Society Foundation, DeBug is now training public defenders around the country....
LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.
“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a onesided process, and now it’s like the scales are being balanced out.
Friday, May 22, 2015
"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"
The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:
For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.
I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.
Here is some of what she goes on to say about this very interesting topic:
While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established). There is a trend toward sexual contact with teenage males. Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.
In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.
Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped. Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty. Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.
Of course, I don’t condone this behavior in the least. I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.
Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men. Treatment providers aren’t given special instruction in dealing with women. The treatment programs are written for men, using statistics about male offenders and past treatment models of men. Imagine! Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.
At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders. This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work. But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.
A lack of evidence should never be the reason for poor rehabilitation. It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future. When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon. By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.
Research about recidivism rates is also based primarily on male populations and varies drastically. Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all. But since the law doesn’t differentiate among sex offenders, these studies are nearly useless. A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child. The lumping-together of sex offenses creates confusion even while it feeds public hysteria....
Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment. It does nothing to address the complex emotional choices that led people to their crimes. Rather, the justice system beats down already hurting women.
May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack
Wednesday, May 20, 2015
Spotlighting who profits from "Piling on Criminal Fees"
Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:
Criminal courts sometime function as fee-generating machines.... The problem here is not any single criminal fee; the problem is how they stack up to create injustice. That's why we are calling for a statewide Commission on Criminal Fees.
In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis. We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice. As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines. This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...
The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests. What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?
And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill. Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.
Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike. The trouble comes when nobody minds the total effects of all these fees on individuals. Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero. We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.
May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, May 10, 2015
"Too Many People in Jail? Abolish Bail"
The title of this post is the headline of this notable New York Times op-ed authored by Maya Schenwar. Here are excerpts:
How can we reduce the enormous populations of our country’s local jails?
Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.
Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place? Usually, it is because they cannot afford bail....
This is a national problem. Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.
In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.
Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)
There is also evidence that bail is not necessary to ensure that people show up for trial. In Washington, D.C., a city that makes virtually no use of monetary bail, the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.
In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences. Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.
Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children. By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.
Bail also raises issues of racial injustice. A number of studies have shown that black defendants are assigned higher bail amounts than their white counterparts. This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.
Thursday, May 07, 2015
"Mass Incarceration: The Silence of the Judges"
The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books. Here is how it starts and ends:
For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today. It is time that more of us spoke out.
The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.
Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession. And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer. For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.
And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males. Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....
In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?
"Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration"
The title of this post is the title of this intriguing new report recently published by the Lawyers’ Committee for Civil Rights Under Law. This new Crime Report piece, headlined "Acknowledging Bias in the Criminal Justice System," provides a helpful summary of the report's key themes:
Mass incarceration reform efforts rarely formally address racial disparities within the criminal justice system, according to a new report from the Lawyers’ Committee for Civil Rights Under Law, an advocacy group. The report outlines systematic racial disparities in the criminal justice system and proposes strategies to address them. It was created as a result of a series of “listening sessions” on race and imprisonment.
The sessions included dozens of practitioners, experts, academics, national law firm representatives, and formerly incarcerated individuals, who gathered “to discuss the state of mass incarceration, reform efforts, and the role of national law firms in this movement.” The discussions near unanimous agreement that there is bias against black and Hispanic defendants in the criminal justice system.
“However, this fact is often absent in public discourse and almost never formally addressed in reform efforts. This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists,” the report’s authors wrote.
The report also noted that there is a “huge gap” in the legal effort to change mass incarceration. “Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts,” the authors wrote.
Tuesday, May 05, 2015
"What can one prosecutor do about the mass incarceration of African-Americans?"
The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin. For many reasons (as perhaps the highlights below suggest), the full article is a must-read:
Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons. The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent. The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison. How, Chisholm wondered, did the work of his own office contribute to these numbers? Could a D.A. do anything to change them?
The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.
Chisholm decided to let independent researchers examine how he used his prosecutorial discretion. In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office. Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing. According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).
Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety. “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me. “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time. Prosecutors have to redefine their proper role in a new era. Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....
Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans. The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....
Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place. But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy. “In one, you are a case processor,” he said. “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system. But if you want to make a difference you have to do more than process cases.”
So Chisholm began stationing prosecutors in neighborhoods around Milwaukee. “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said. He and his team started asking themselves in every instance why they were bringing that case. “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them. And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”
May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, April 27, 2015
Is US push for sentencing reform progressive enough to embrace progressive "day fines"?
The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland. The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:
Getting a speeding ticket is not a feelgood moment for anyone. But consider Reima Kuisla, a Finnish businessman. He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone. And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.
Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income. The thinking here is that if it stings for the little guy, it should sting for the big guy, too. The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes. He said he was seriously considering leaving Finland altogether....
The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending. Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines. A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...
At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”
The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines. Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation. But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”
In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.
Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense. Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport. Given the speed he was going, Mr. Kuisla was assessed eight days. His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.
Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370. Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590). When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....
Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns. But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent. “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.
But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country. Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....
Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years. According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone. That ticket was for 63,448 euros, about $83,769 at the time. Bigger yet was the ticket issued to a 44-year-old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.
Both tickets were appealed and in the end reduced. Usually, appeals are based on financial issues, such as a one-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.
Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.
Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).
April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack
Thursday, April 23, 2015
Senate finally votes on AG nominee and confirms Loretta Lynch by vote of 56 to 43
The GOP has finally succeeded in getting Attorney General Eric Holder out of his job by finally allowing the full Senate to vote on his nominated successor, Loretta Lynch. This New York Times article provides more of the details, and starts this way:
After one of the nation’s most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta Lynch to be attorney general. She is the first African-American woman to hold the position.
Ms. Lynch, the United States attorney for the Eastern District of New York, was confirmed 56 to 43.
Her confirmation took longer than that for all but two other nominees for the office: Edward Meese III, who was nominated by President Ronald Reagan, and A. Mitchell Palmer, who was picked by President Woodrow Wilson, according to the Congressional Research Service.
Republicans have found themselves in a quandary for months. They longed to replace Attorney General Eric H. Holder Jr., and they agreed that Ms. Lynch was qualified for the job. But they opposed her because Ms. Lynch defended President Obama’s executive actions on immigration.
What’s more, Senator Mitch McConnell, Republican of Kentucky and majority leader, had held up the nomination until the Senate voted on a human trafficking bill, a process that dragged on for weeks. The measure passed on Wednesday by a vote of 99 to 0. And some Republicans continued to strongly oppose Ms. Lynch. “We do not have to confirm someone to the highest law enforcement position in America if that someone has committed to denigrating Congress,” Senator Jeff Sessions, Republican of Alabama, said on the Senate floor Thursday. “We don’t need to be apologetic about it, colleagues.”
In the end several Republicans — to the surprise of many of their own colleagues — voted aye for Ms. Lynch, including Mr. McConnell.
Some conservative groups had called on Senate Republicans to block a vote on Ms. Lynch altogether because of her stance on the president’s immigration policies. Many Senate Republicans feared the party would face serious political repercussions if it blocked an African-American woman with strong credentials and enthusiastic support from many in law enforcement.
Opponents still forced a procedural vote before her final confirmation, an unusual requirement for such a high position. The nomination moved along easily, by a vote of 66 to 34.
Thursday, April 16, 2015
Latest Pew survey data on death penalty opinions
This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:
A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.
The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.
Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.
The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.
At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.
And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .
The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....
The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....
Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.
Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.
Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).
As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.
Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.
There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.
Monday, April 13, 2015
Judge Jed Rakoff gives provocative speech on mass incarceration and the responsibility of lawyers and judges
A helpful reader alerted me to a notable speech (made available in full here by Bloomberg BNA) delivered by US District Judge Jed Rakoff as part of a Harvard Law School conference about lawyers' roles and responsibilities. Titled "Mass Incarceration and the 'Fourth Principle'," the full speech is a must read in full for all sentencing fans. Here are excerpts providing a taste of why:
I want to build my little talk around ... the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake. I want to discuss that responsibility — which I will refer to here simply as the “Fourth Principle”— as it applies to lawyers and as it applies to judges...
Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them. Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that [lawyers] would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.
But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue. Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular. Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.
The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.8 million Americans are subject to the state supervision imposed by probation or parole....
And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males. Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males.
This mass incarceration — which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent offenses) — is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular. These laws imposed mandatory minimum terms of imprisonment on many first offenders. They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders. And they required life-time imprisonment for many recidivists. These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.
The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high rates of the 1970s and 1980s that gave rise to these laws. Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they are now at levels not seen in many decades. A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.
But is this true? The honest answer is that we don’t know. And it is this uncertainty that makes changing the status quo so difficult: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?
There are some who claim that they do know the answer to whether our increased incarceration is the primary cause of the our decline in crime. These are the sociologists, the economists, the statisticians, and others who assert that they have “scientifically” determined the answer. But their answers are all over the place....
Put another way, the supposition on which our mass incarceration is premised — namely, that it materially reduces crime — is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous. This is true in the literal sense: it costs more than $80 billion a year to run our jails and prisons. It is also true in the social sense: by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes. And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force....
But why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed, or at least moderated? Some observers, like Michelle Alexander in her influential book The New Jim Crow, assert that it is a case of thinly-disguised racism. Others, mostly of an economic-determinist persuasion, claim that it is the result of the rise of a powerful private prison industry that has an economic stake in continuing mass incarceration. Still others blame everything from a continuing reaction to the “excesses” of the ‘60s to the never-ending nature of the “war on drugs.”
While there may be something to each of these theories, a simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer. They are not impressed with academic studies that question this belief, suspecting that the authors have their own axes to grind; and they are repelled by those who question their good faith, since they perceive nothing “racist” in wanting a crime-free environment. Ironically, the one thing that might convince them that mass incarceration is not the solution to their safety would be if crime rates continued to decrease when incarceration rates were reduced. But although this has in fact happened in a few places (most notably, New York City), in most communities people are not willing to take the chance of such an “experiment.”
This, then, is a classic case of members of the public relying on what they believe is “common sense” and being resentful of those who question their motives and dispute their intelligence. What is called for in such circumstances is leadership: the capacity of those whom the public does respect to point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the key to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of societal values. Until quite recently, that leadership appeared to be missing in both the legislative and executive branches, since being labeled “soft on crime” was politically dangerous. Recently, however, there has been some small signs of progress. For example, in 2013, Attorney General Holder finally did away with the decades-old requirement that federal prosecutors must charge offenders with those offenses carrying the highest prison terms. And in the last Congress, a bill to eliminate mandatory minimum sentences for non-violent drug offenders was endorsed not only by the Department of Justice, but also by such prominent right-wing Republican Senators as Ted Cruz and Rand Paul. On the other hand, prosecutors still have discretion to charge offenders with the most serious offenses available, and they usually do. And the aforementioned bill to modify the applicability of mandatory minimum sentences never reached a vote.
As for the organized bar, the American Bar Association, to its great credit, has increasingly spoken out about the dangers of mass incarceration and, most recently, has created a Task Force on Overcriminalization to suggest alternatives . But no other bar association, so far as I am aware, has openly denounced mass incarceration, called for outright repeal of mandatory minimum laws, supported across-the-board reductions of statutory and guideline imprisonment levels, or otherwise taken the kind of forceful positions that would cause the public to sit up and notice.
And where in all this stands the judiciary? In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we who are forced to impose these sentences that many of us feel are unjust and counter-productive. It is probably too much to ask state judges in the 37 states where judges are elected to adopt a stance that could be characterized as “soft on crime.” But what about the federal judiciary, protected by lifetime tenure from political retaliation and, according to most polls, generally well-regarded by the public as a whole?
On one issue — opposition to mandatory minimum laws — the federal judiciary has been consistent in its opposition and clear in its message. As stated in a September 2013 letter to Congress submitted by the Judicial Conference of the United States (the governing board of federal judges), “For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimums and has supported measures for their repeal or to ameliorate their effects.” But nowhere in the nine single-spaced pages that follow is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines....
Several brave federal district judges — such as Lynn Adelman of Wisconsin, Mark Bennett of Iowa, Paul Friedman of the District of Columbia, and Michael Ponsor of Massachusetts, as well as former federal judges Paul Cassell and Nancy Gertner — have for some time openly denounced the policy of mass incarceration. More recently, a federal appellate judge, Gerard Lynch of New York, expressed his agreement (albeit in an academic article) that “The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime.”
Perhaps the most encouraging judicial statement was made just a few weeks ago, on March 23, 2015, when Justice Anthony Kennedy — the acknowledged centrist of the Supreme Court — told a House subcommittee considering the Court’s annual budget that “This idea of total incarceration just isn’t working,” adding that it many instances it would be wiser to assign offenders to probation or other supervised release programs. To be sure, Justice Kennedy was quick to tie these views to cost reductions, avoidance of prison overcrowding, and reduced recidivism rates — all, as he said, “without reference to the human factor.” Nor did he say one word about the racially disparate impact of mass incarceration. Yet still, his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.
In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice? We may be the Third Branch, but we have yet to learn the Fourth Principle.