Wednesday, November 25, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 19, 2015

"States of Women's Incarceration: The Global Context"

The title of this post is the title of this effective new on-line report by the Prison Policy Initiative.  Here is how it gets started:

We already know that when it comes to incarceration, the United States is truly exceptional.  As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men.  As a result, women's incarceration rates are overshadowed and often lost in the data.  As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.

Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states.  Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself.  The next 17 jurisdictions are also American states.

Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.  Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.

Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages.  New Hampshire is on par with Russia, and New York with Rwanda.

Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country.  In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.

November 19, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, November 18, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 16, 2015

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"

The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.”  One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP).  The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP.  Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses.  There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences.  The author conducted a detailed study of every inmate sentenced to LWOP in eight states.  In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes.  Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment.  Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

November 15, 2015 in Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6)

Wednesday, November 11, 2015

"What Mass Incarceration Looks Like for Juveniles"

The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:

After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City.  It was a rude awakening.

The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time.  In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells.  Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.

My staff and I quickly uncovered more abuses.  Staff members were sexually harassing the kids and one another.  One of my corrections officers married a youth shortly after the boy was released from custody.  A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later.  The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.

These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites.  In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....

In New York, where I ran the probation department, I didn’t witness the same hair­raising institutional abuse, mostly because we didn’t run any facilities.  But probation officers reported that they routinely re­incarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account.  As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington.  When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.

Two things surprised me about my experiences on the inside.  First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....

The second major surprise was how much I liked many of my staff members.  I charged into my job with an air of moral superiority.  Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves.  But it was far more complicated.  Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs.  After all, our facility housed only about 200 young people, roughly the size of a small middle school.

Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety.  They attended our football games and plays and cheered the youths on, sitting in the stands with their parents.  They were the good guys, rendered complicit by years in a corrupt system....

From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime­-control efforts.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Sunday, November 01, 2015

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

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

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

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

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

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

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

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

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

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

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

Friday, October 30, 2015

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Flip-flop-Hillary-Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Thursday, October 22, 2015

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

Tuesday, October 20, 2015

"Dismantling the School-to-Prison Pipeline: Tools for Change"

The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.

This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color.  But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement.  Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline.  The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, October 17, 2015

Remarkable Fusion series on "Prison Kids"

Pk_bannerThe multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:  

October 17, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, October 13, 2015

"Can Architecture Cure Crime?"

The question in the title of this post is the headline of this interesting Ozy article discussing a novel prison design for a women's prison in southern California.

The campus is spacious and green, with a grassy amphitheater and palm trees, volleyball nets, even a yoga studio.  Inside, the earthy tones continue: abundant natural light, murals of waves crashing into the cliffside.  From his second-floor office, Edwin Schroeder reflects on his view: “You don’t get that gut-dropping feeling anymore.”

Schroeder isn’t a professor and the vista isn’t of a liberal arts college.  He runs a women’s jail, but one that emphasizes the avant-garde over security guards.  “We’re not here to punish,” says Schroeder, which isn’t exactly a line you’d expect from a gatekeeper.  But this San Diego County jail, which houses everyone from petty criminals to accused murderers and was once known for its sickening decrepitude, is at the forefront of a new and, of course, controversial movement in prison design, one that manifests a counterintuitive idea: You could build a lockup so pleasant and thoughtfully devised that inmates would never come back....

It’s a lofty goal. And while it remains to be seen whether administrators will succeed at rebuilding lives, few would doubt that they’ve built a one-of-a-kind facility.  This will surely raise hackles among tough-on-crime folks, but this isn’t one of those pay-to-stay country club prisons for stock brokers.  It’s more of a social experiment.  In an era when more women than ever are imprisoned — the female incarcerated population in the U.S. shot up nearly tenfold between 1980 and 2010, to 205,000 — Las Colinas is testing a new theory: by treating inmates as autonomous, responsible human beings, they might actually behave like autonomous, responsible human beings.  Some would say it’s taking a woman’s touch.  There’s not a barbed wire in sight (they’re there, just not visible), and long outdoor walkways provide a feeling of freedom.  Thus, when a woman needs medical attention, she walks across that green campus to a waiting room that looks like one in any other doctor’s office.  Even booking looks less like a holding room and more like a health clinic, with separate walk-up windows for arrestees to take care of various intake procedures.

Critics will argue that comfy prisons have little deterrent effect. But the design, proponents say, is gender responsive.  For decades, conventional wisdom was that the only difference between a men’s prison and a women’s is that one has urinals.  But there are countless differences between the sexes, including, for instance, that women prefer communal spaces whereas guys value solitude.  The Bureau of Justice Statistics has found that 75 percent of women in the corrections system have suffered abuse over their lifetimes, and the dorms at Las Colinas are sensitive to that: The lowest-level offenders sleep in open-concept rooms with shoulder-height dividers, instead of individual cells. Recent research reveals that building designs, floor plans and overall ambiance affect prisoner interactions and their relationships with staff.  And as it turns out, one year in, the sheriff’s department already reports a decline in incidents of inmate-on-inmate and inmate-on-staff violence.  “Almost every sense of well-being is affected by environment,” says Barb Toews, a justice professor at the University of Washington Tacoma who studies incarcerated women....

Even if this little social experiment is successful, it will be difficult to replicate. Although there wasn’t much political bickering within San Diego over the cushy living quarters for its criminals, there likely would be elsewhere.  Las Colinas, which cost $221 million to build, is expensive, and the staffing intensive; the programmatic efforts require even more hands on deck.  And, to be clear, less than half the population gets to take advantage of the open campus; violent and other serious offenders are still housed in more traditional cell blocks — though they, too, are painted in calming colors.  Meanwhile, plenty of architects believe they shouldn’t be putting resources toward locking people away at all, on the grounds that doing so strengthens the prison-industrial complex....

Sure enough, an unholy number of variables would have to align for Las Colinas to succeed in changing its prisoners’ lives.  But officials believe failing at something different beats failing at the same thing, over and over.  “If it doesn’t work, we haven’t lost anything,” Schroeder says. “Why wouldn’t we go for it?”

October 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

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.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

September 30, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

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."

September 30, 2015 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 29, 2015

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

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

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

Monday, September 28, 2015

"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.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, September 25, 2015

Duchess of Cambridge creates surprising Princess prison diaries in UK

Kate-Middleton-Prison-VisitAs 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.

September 25, 2015 in Prisons and prisoners, Race, Class, and Gender, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

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.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

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.

September 24, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections | Permalink | Comments (3)

Monday, September 21, 2015

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

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

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

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

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

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

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

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? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, September 17, 2015

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

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

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

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

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

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

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

Wednesday, September 16, 2015

"Who Pays? The True Cost of Incarceration on Family"

Download (1)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.

September 16, 2015 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

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  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.

September 15, 2015 in Clemency and Pardons, Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (2)

"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.

September 15, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

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:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

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.

September 14, 2015 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

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.

September 11, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

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?

Article-2228924-15CDB3E3000005DC-474_634x424The 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.

August 24, 2015 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (16)

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.

August 24, 2015 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

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:

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

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.

August 9, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

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.

August 6, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

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.

August 5, 2015 in Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, August 03, 2015

US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act

2015_RtC_FSAAs 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?

August 1, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, July 10, 2015

“The Sexual Abuse to Prison Pipeline: The Girls’ Story”

Download (13)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.

July 10, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Thursday, July 02, 2015

Making the forceful (and effective) case that modern bail systems operate unconstitutionally

EJUL-slide-3This 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.”

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

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.

June 28, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Sunday, June 21, 2015

Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"

Alternatives_thumbThe 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.

June 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22)

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.

June 18, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe 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.

June 13, 2015 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

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.

June 10, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)