Wednesday, October 26, 2016

The Opportunity Agenda produces huge report on "Transforming the System: Criminal Justice Policy Solutions"

Full_pdf_cover_sideThe Opportunity Agenda, which is a project of Tides Center and calls itself a "social justice communication lab," has just released this huge new on-line report (which is also available as a pdf here) under the title "Transforming the System: Criminal Justice Policy Solutions." Here is the main introduction and the headings for links to different sections of this report:

Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.

People of color, particularly Native American, black, and Latino people, have felt the impact of discrimination within the criminal justice system. Many immigrants experience mandatory detention, racial profiling, and due process violations because of laws and policies that violate their human rights—and the principles of equal justice, fair treatment, and proportionality under our criminal justice system. The good news is that we as a nation are at a unique moment in which there is strong public, bipartisan support for criminal justice reform; we see positive policy developments in many parts of the country; and mass action and social movements for change are growing, including the Movement for Black Lives. More is needed, however, to move from positive trends to transformative, lasting change.

Criminal Justice Policy Solutions
  • Promote Community Safety through Alternatives to Incarceration: Our criminal justice system should ensure that all individuals feel safe and secure in their communities.
  • Create Fair and Effective Policing Practices: To work for all of us, policing practices should ensure equal justice and be supported by evidence.
  • Promote Justice in Pre-Trial Services & Practices: The right to due process is a cornerstone of our commitment to freedom and fairness.
  • Enhance Prosecutorial Integrity: Prosecutors represent the government, and therefore must reflect the highest levels of integrity and ethics in their work.
  • Ensure Fair Trials and Quality Indigent Defense: Every accused person is entitled to a fair trial. Indigent defendants have a constitutional right to competent representation at trial.
  • Encourage Equitable Sentencing: People convicted of crimes should receive fair sentences. These sentences should reflect the severity of the crime and be administered in a fair manner.
  • Ensure Decent Detention Conditions: Decent, rehabilitative prisons are a basic human right and crucial to the successful reintegration of formally incarcerated people.
  • Require Equitable Parole and Probation: Parole and probation practices should be fair and consistent. They should be used as a tool to allow accused persons to safely remain in their communities.
  • Foster Successful Reintegration: Most Americans agree that after completing a criminal sentence, released people should be given an opportunity to successfully reintegrate into their communities.
  • Foster an Environment for Respecting Children's Rights: We must adopt policies that ensure children reach their full potential and are not placed off track for childhood mistakes.
  • Eradicate the Criminalization of Sex, Gender, & Sexuality: We all should have freedom to live without fear of criminalization because of our expressed sex, gender or sexuality.
  • Eliminate the Criminalization of Poverty: Instead of increasing opportunities to succeed, our law too often funnels low-income people into the criminal justice system.
  • Eliminate the Criminalization of Public Health Issues: The criminal justice system is too often used as a cure-all for social problems that are better suited to social services and public health responses.
  • Promote Fairness at the Intersection of Immigration and Criminal Justice: Everyone is entitled to have their human rights respected regardless of immigration status.
  • Public Opinion Report: A New Sensibility: This report is based on a review of about fifty public opinion surveys and polls, most of them conducted between 2014 and June 2016.

I suspect most, if not all, of this report's various sections will be of interest to readers. And I hope it is useful for all to see what is listed as 10 action items under the "Encourage Equitable Sentencing" section. That section starts this way and they has these 10 "Solutions and Actions to Encourage Fair Sentences":

We all want a criminal justice system that treats people fairly, takes a pragmatic and responsible approach, and ultimately, keeps us safe. When we’ve reached the point of deciding to deprive someone of their liberty, we have to be particularly fair and responsible and consider all options. Sentences should consider a range of factors and reflect the severity of the crime. We owe it to ourselves, our justice system, and to those being imprisoned to ensure that our sentencing practices are thoughtful and fair. Nonetheless, the explosion of the American prison population is largely due to sentences that are disproportionate to the severity of crimes. Prisons and jails are filled by many people who pose no threat to their communities. Laws that impose mandatory minimums contribute to mass imprisonment. Sentencing laws should be reformed to require transparency and mandate equitable practices that ensure that sentences are appropriate to the particular circumstances of an offense.

1) Repeal “Truth-in-Sentencing” and “Three-Strikes” Law...

2) Repeal Mandatory Minimums...

3) Use Alternatives to Incarceration...

4) Prohibit Incarceration for Failure to Appear...

5) Revise Sentencing Guidelines...

6) Commit to Cutting Incarceration in Half...

7) Collect Data...

8) Train Judges on Implicit Bias...

9) Appoint Judges from Diverse Backgrounds...

10) Evaluate Ability to Pay

October 26, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, October 25, 2016

Great back-and-forth discussion at RealClearPolicy over crime policy ideas "that should guide the next presidential administration's agenda"

The folks at RealClearPolicy have started putting together this terrific series of timely commentaries under the heading "Policies for the Next Administration." The introduction starts this way:

During an election cycle characterized by bombast, sound bites, and sensationalism, it’s easy to forget what we, as voters, are being asked to decide: What are the best policies for our country? What concrete proposals and legislative frameworks should guide the next presidential administration?

We at RealClearPolicy are creating a conversation among the partisans to help answer that question. In this special series, we’ve asked 12 leading authorities from both Left and Right to make their best case for the policy ideas that should guide and influence the next administration. Between now and Election Day, we will publish 24 articles, focusing on 12 major policy issues from differing points of view — from education policy and economic growth to health-care reform and energy policy — including a response by each author to the opposing position and a recommended reading list. This is a rare chance to hear top thinkers try out their best policy ideas — and respond to the strongest objections — in a public forum leading up to the election.

The series so far has covered four issue, and I was very pleased to see the third issue covered was "Crime" and it was covered via these entries:


In Part 3, Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute, squares off against Danyelle Solomon, Director of Progress 2050 at the Center for American Progress:

Heather Mac Donald, "Telling the Truth About Crime and Policing."

Danyelle Solomon, "Time to Fix Our Failing Criminal-Justice System."

Heather Mac Donald and Danyelle Solomon, "Mac Donald v. Solomon: The Authors Respond."

There is so much that is interesting and effective in this back-and-forth that I am just going to encourage everyone to read the commentaries in full and also urge readers to share in the comments their views on the most important crime policy ideas to guide the next Administration.

UPDATE: I just notices that Andrew King over at Mimesis Law has this extended new commentary criticizing what both Heather Mac Donald and Danyelle Solomon say in these dueling commentaries. Here is how his commentary on the commentaries starts and finishes:

Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.

Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole....

The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.

October 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Saturday, October 22, 2016

"Bars to Justice: The Impact of Rape Myths on Women in Prison"

The title of this post is the title of this paper newly posted to SSRN and authored by Hannah Brenner, Kathleen Darcy, Gina Fedock and Sheryl Kubiak. Here is the abstract:

This article stems from a National Science Foundation-funded interdisciplinary research project that addresses a major gap in understanding the reporting of sexual victimization in prison and the confluence of factors that contribute to the ineffectiveness of internal laws and policies.  As a basis of this work, our cohort of scholars in law, social work, and psychology utilized data and personal narratives from the groundbreaking class action lawsuit, Neal v. MDOC, brought on behalf of over 800 female inmates against the State of Michigan.

In this article, we identify the most prevalent rape myths we observed from women who were involved in the Neal lawsuit and other similarly situated female inmates across the country.  We focus on the impact of rape myths in contexts where prison staff perpetrate sexual violence against female inmates and in particular, how rape myths span the closed prison system-from reporting to grievance outcomes.  We explore how these myths shape notions of the "ideal victim," discuss their specific impact, and explain why they matter.

We consider how, by virtue of their incarcerated status, it is impossible for women victimized in prison to meet the "ideal victim" standards, ultimately rendering their attempts at seeking justice futile.  We hope that our analysis of rape myths in the prison context will inspire changes in prison law and policy by acknowledging and urging the dismantling of these often unforeseen, implicit, and informal barriers to justice.

October 22, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, October 17, 2016

Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.

Some (of many) prior related posts on use of risk-assessment technologies:

October 17, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (0)

Sunday, October 16, 2016

New Equal Justice Initiative animated video explores explores America’s lynching history

Via email I received recently a promotion of a notable new video produced by the Equal Justice Initiative titled "Lynching in America: Confronting the Legacy of Racial Terror."  Here is a description of the video and embedded below is five minutes of fascinating content and animation thanks to EJI:

The video portrays the violent aftermath of the Civil War, when racial terror and lynching were used to create racial hierarchy, disenfranchisement, and oppression against African Americans despite emancipation.

Narrated by widely acclaimed public interest lawyer Bryan Stevenson, the five-minute video illustrates the widespread violence and racial terror created by lynching and mass atrocities perpetrated against African Americans, frequently with support from government officials. The threat of lynching forced millions of black people to flee the American South to the urban North and West as refugees from violent racism during the first half of the 20th century.

EJI has documented over 4000 racial terror lynchings of black men, women, and children, who were hanged, burned alive,shot, drowned, and beaten to death by white mobs between 1877 and 1950. Until EJI announced its plans earlier this year to build a national memorial commemorating the thousands of African American lynching victims during this era, very little public recognition of this period of racial terror was in evidence despite the presence of thousands of Confederate plaques, statues, and monuments across the American South.

“Our nation’s history of racial injustice casts a shadow across the American landscape. This shadow cannot be lifted until we shine the light of truth on the destructive violence that shaped our nation, traumatized people of color, and compromised our commitment to the rule oflaw and to equal justice,” Bryan Stevenson, Executive Director of EJI, said. “We all must engage this history more honestly.” Lynching in America: Confronting the Legacy of Racial Terror is part of EJI’s Race and Poverty project, which explores racial history and uses innovative teaching tools to deepen our understanding of the legacy of racial injustice. By telling the truth about our past, EJI believes we can create a different, healthier discourse that will lead to different choices and practicesthat can address America’s history of racial inequality.

October 16, 2016 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0)

Thursday, October 13, 2016

Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty

In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it.  The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:  

As we noted in Part I of this report, the death penalty in America is dying.

In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976.  Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015.  When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent.  Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015.  Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts.  Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”

In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.

Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.

This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another.  Those who receive death sentences do not represent the so-called “worst of the worst.”  Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias.  These individuals are often young, and many have significant mental impairments. Some are likely innocent.  This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.

Prior related posts:

October 13, 2016 in Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Wednesday, October 12, 2016

"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"

2016-10-usa-coverThe title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

October 12, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, October 11, 2016

"Slave Narratives and the Sentencing Court"

The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:

The United States incarcerates a greater percentage of its population than any other country in the world.  Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing.  In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist.  As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether.  As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole.  Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.

In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives.  Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions.  Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.

October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Friday, October 07, 2016

This weekend's must-watch: 13th, Ava DuVernay's new documentary linking slavery and mass incarceration

As noted in this prior post, my screen time last weekend was devoted to my favorite bi-annual sporting event. And I suspect much of this weekend will be focused on one of my favorite annual playoffs. But the must-watch for this weekend is on a much more serious set of subjects, the US history of slavery and its echoes within mass incarceration. These are the topics covered in a new Netflix documentary, which YouTube describes in this way along providing this preview:

The title of Ava DuVernay’s extraordinary and galvanizing documentary 13TH refers to the 13th Amendment to the Constitution, which reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The progression from that second qualifying clause to the horrors of mass criminalization and the sprawling American prison industry is laid out by DuVernay with bracing lucidity. With a potent mixture of archival footage and testimony from a dazzling array of activists, politicians, historians, and formerly incarcerated women and men, DuVernay creates a work of grand historical synthesis. On Netflix October 7.

I would be excited to watch this new documentary even if it did not receive strong reviews.  But, as these reviews/headlines highlight, I am not the only one thinking this new doc is a must-watch:

And, perhaps unsurprisingly, a notable negative review makes me even more eager to watch and re-watch this new doc:

October 7, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Television | Permalink | Comments (3)

Thursday, October 06, 2016

"6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016"

E6092bbb47a17ed3d778bf40f917-convicted-felons-votingThe title of this post is the title of this timely new study on felony disenfranchisement released today by The Sentencing Project and authored by researchers Christopher Uggen, Ryan Larson, and Sarah Shannon. Here is the start of the report's "Overview" section:  

The United States remains one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes. An estimated 6.1 million Americans are forbidden to vote because of “felony disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.

In this election year, the question of voting restrictions is once again receiving great public attention.  This report is intended to update and expand our previous work on the scope and distribution of felony disenfranchisement in the United States (see Uggen, Shannon, and Manza 2012; Uggen and Manza 2002; Manza and Uggen 2006). The numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2016 election.

Our key findings include the following:

• As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.

• Approximately 2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states — Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia — more than 7 percent of the adult population is disenfranchised.

• The state of Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.

• One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans.  Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.

• African American disenfranchisement rates also vary significantly by state. In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.

This report reinforces my view that Prez candidate Donald Trump is right about one thing: our election system is "rigged." But when he makes that claim, I am pretty sure he is not complaining about the facts detailed in this study documenting why and where about "2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised."

October 6, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, October 05, 2016

Making an election-season case to end felon disenfranchisement

Today's New York Times has this timely editorial headlined "The Movement to End Racist Voting Laws." Here are excerpts:

This year, state laws will bar nearly six million Americans with criminal convictions from voting in the presidential election. About 4.4 million of those are people who are not in prison but are still denied the right to vote.  While felon disenfranchisement laws have a history in many parts of the country, the harshest are found in the South, where they were central to the architecture of Jim Crow.

These laws date to the late 19th and early 20th centuries, when states in the former Confederacy — from Texas to Florida — set out to reverse the effects of the 15th Amendment, which guaranteed African-Americans the right to vote.  Felony voting restrictions formed the foundation of this effort, but the Southern states quickly reinforced barriers to voting with poll taxes, literacy tests, white-only primaries, registration restrictions, and exemptions for whites from measures created to keep blacks from voting.

Poll taxes and literacy tests were swept away after the Voting Rights Act of 1965.  But disenfranchisement of people with criminal records remained, and it is just beginning to attract the attention it deserves.  Last week, for example, Gov. Jerry Brown of California signed a bill granting voting rights to people convicted of felonies who are being held in county-run jails.  In Virginia, Gov. Terry McAuliffe is battling with the legislature over his plan for restoring the voting rights of tens of thousands of former inmates.

Also last week, black citizens who were denied the vote in Alabama brought a federal lawsuit challenging the state’s disenfranchisement statute, a move that has started a broader discussion about the racist origins of such laws and their devastating effect on African-American communities.  In 1901, Alabama’s constitutional convention — convened for the purpose of establishing “white supremacy in this state” and staving off the “menace of Negro domination” at the ballot box — expanded an existing disenfranchisement law to include any offense “involving moral turpitude.”  Among the disqualifying offenses were vagrancy, adultery and wife beating, which were more likely to be prosecuted against blacks....

That many states continue to view people who have served time in prison as unfit to vote is a stain on the idea of democracy.  The Alabama law and its history display this shameful truth.

October 5, 2016 in Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, October 04, 2016

Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument

As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues.  Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause.  And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday.  Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":

Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.

A Texas trial court appointed two lawyers to represent Buck at his trial.  One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.

A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.

Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death....

There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.

Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror — all that would be necessary — might have voted against a death sentence.

The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers.  But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future.  The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”

The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability....

In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices — Stephen Breyer and Ruth Bader Ginsburg — have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.

Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow.  Again, SCOTUSblog provides helpful resources for these cases:

Salman v. United States

Argument preview: Justices to consider what constitutes a “personal benefit” in insider trading

Manuel v. City of Joliet

Argument preview: Does the Fourth Amendment govern a “malicious prosecution” claim, and if so, how?

October 4, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (29)

Monday, October 03, 2016

Interesting look at gender dynamics in sex offender prosecutions in North Dakota

This local article from North Dakota, which is headlined "Investigators say all sex offenders treated the same, but some studies find female criminals face lighter sentences," take a close look at the interest intersection of sex offenses and gender. Here is how the article starts:

Last month, a young Bottineau teacher was sentenced to serve about a month and a half in jail, pay $325 in court fees and undergo treatment after admitting to having sexual relations with at least two teenage boys. Marissa Ashley Deslauriers, born in 1991, pleaded guilty in Bottineau County District Court to two Class A misdemeanor charges of contributing to deprivation of a minor and two Class B misdemeanors of sexual assault.
Originally, she faced felony charges that could have resulted in 15 years in prison and $30,000 in fines, but Deslauriers reached a plea deal with prosecutors that resulted in lesser charges and two years of unsupervised probation. She was not required to register as a sex offender.  The case sparked discussion about the way the legal system treats men and women who are convicted of sexual crimes, and if gender has an influence in sentencing.
There are 1,754 registered sex offenders in North Dakota, public records show.  Twenty-seven of them are women.  A wide range of research supports the theory that men are overwhelmingly more likely to commit sexual assault than women, but research on the differences in the way male and female offenders are treated in the justice system are hard to find.
Dr. Adam Matz, assistant professor of criminal justice at the University of North Dakota, said women, overall, tend to receive lighter sentences than men for similar offenses. Much of this is due to perceptions of women as primary caretakers for children.  Matz said the age of the victim and the age of the offender are both taken into consideration with sexual crimes.
"In general, the severity of the case and the person's criminal history are probably the two biggest things in terms of sentencing decisions," Matz said. "And in general sentencing research, you do see the same trend where women tend to get more lenient sentences or are more likely to receive probation."  Matz, who specializes in parole and probation, said he would not downplay probation and its impact on people's lives.
Those with little criminal history are more likely to serve lighter sentences. "Typically with females, particularly with teachers, a lot of times these are first-time offenders. They don't have a criminal history; that's another reason why there might be a disparity there," Matz said.
A study published in 2012 by a doctoral student at Arizona State University found noticeable discrepancies in the sentencing for male and female teachers convicted of having sexual relationships with students older than 15.  The study noted many teachers were first-time offenders, which also can lead to lighter sentencing.

October 3, 2016 in Offender Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (6)

Prez Candidate Clinton promises “end to end reform in our criminal justice system — not half-measures, but full measures"

This new Politico article reports on the latest criminal justice reform promise by a vote-seeking politician under this full headline: "Clinton promises 'end to end' criminal justice reform in pitch to black voters: Visiting Charlotte less than two weeks after a controversial police shooting, the Democrat makes makes an appeal to the voters she needs to beat Donald Trump in North Carolina."  Here are excerpts from the piece:

In a humble church with a familiar name, Little Rock A.M.E. Zion, Hillary Clinton on Sunday made a passionate case for police reform and a direct appeal to the city's black voters, whose support she needs to win this swing state.

Less than two weeks after the death of Keith Lamont Scott, a black man killed by police, Clinton arrived here Sunday morning with a message of sympathy for a grieving community and political promises, including “end to end reform in our criminal justice system — not half-measures, but full measures.”

She acknowledged that when it comes to understanding the plight of black families in America, she will never be able to replicate the symbolic empathy of President Barack Obama. “I’m a grandmother, but my worries are not the same as black grandmothers who have different and deeper fears about the world that their grandchildren face,” Clinton said. “I wouldn’t be able to stand it if my grandchildren had to be scared and worried, the way too many children across our country feel right now."

Clinton’s visit to Charlotte was critical — she was so eager to visit that the campaign announced a trip last Sunday, when the city was still grappling with violent protests and looting. The trip was ultimately delayed by a week at the request of local lawmakers.  On Sunday, she was accompanied by her senior policy adviser Maya Harris, longtime aide Capricia Marshall and senior staffer Marlon Marshall, who is overseeing the campaign’s African-American outreach.

Clinton’s challenge in North Carolina, where current polls put her trailing Donald Trump by about 3 points, is boosting the African-American vote that landed Obama a victory in 2008, when he won a state that had gone to the Republican nominee in the previous seven presidential election cycles.  The key was Mecklenburg County, which includes the city of Charlotte, where Obama beat John McCain by more than 100,000 votes....

Clinton has spoken out on criminal justice reform and "systematic racism" consistently since she launched her campaign. But she is still struggling to inspire young black voters, who remain resistant to her message of reform and lack institutional loyalty to the Democratic Party....

In her remarks, Clinton was careful to couch her call for reforms with support for law and order. “We must not forget that violence has touched the lives of police officers,” she said.  “From Dallas to Baton Rouge to Philadelphia, the families of fallen officers have been dealt a great blow.”  But the focus of her address was to the hurting black community.  “We need to fix a system where too many black parents are taken from their kids and imprisoned for minor offenses,” she said.

October 3, 2016 in Campaign 2016 and sentencing issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Thursday, September 29, 2016

Important review of the politics, power and personage surrounding US prosecutors

Infographic-1This lengthy new Fusion article, headlined "America's Prosecutor Problem: Prosecutors are more powerful than judges -- but the tough-on-crime stance they take to get elected multiplies racial injustices," brings an important empirical perspective to the story of American prosecutors and just who wields arguably the most power in modern criminal justice systems.  Here are excerpts:

Gordon Weekes describes a criminal case that landed on his desk this month in Fort Lauderdale, Florida: “An old lady comes out of her house and sees three or four kids in in her yard.”  She calls the police.  The kids scatter, but get caught. They’d climbed a fence to snag mangos from a tree.  One of the boys is charged with burglary.

“I suppose because he jumped the fence with an intent to take mangos, that it was a burglary,” muses Weekes, the chief assistant public defender in Broward County.  “But the kid is 13 years old -- and he didn’t even take a mango! The state attorney’s office is supposed to decide how to charge these cases. You would think they would go with the more appropriate charge, which is trespass. No -- they’re going with the more serious charge.”....

“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” he says. They decide what charges to file -- “or more importantly, what charges not to file.”

Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should.  Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men --- even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network.  That disparity, the report said, is a “structural flaw in the justice system” that has cascading effects -- like reducing accountability for police officers who shoot unarmed minorities.

As part of “Rigged,” our investigation into the dark side of modern-day electioneering, Fusion worked with Color of Change, another organization working on social justice issues, to collect and analyze data for every jurisdiction in America.

The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is.  At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men “were in state or federal facilities 3.8 to 10.5 times more often than white men.”  Fusion’s data supports what social justice activists have long maintained: At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities.  There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real....

In many places in America, people of color represent a small share of the population, so it’s natural to assume that the overwhelming whiteness of US district attorneys is due to the whiteness of large swaths of the country. However, when Fusion analyzed the data, we found the imbalance persists even in communities of color:

  • In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.
  • In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
  • Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community....

Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as “tough on crime” and make strong alliances with police. “They’re going into the job trying to get high conviction rates,” Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”

Indeed, Color of Change is tracking prosecutor elections and gathering data such as the number of times a prosecutor is elected, what party they represent, their race, gender, and whether they were appointed or ran unopposed. Of the 2,326 prosecutors elected to office as of 2016 and tracked by Color of Change, 72 percent -- 1,691 in all -- ran unopposed in their last election....

Many factors could contribute to the gap in the number of prosecutors of color who run for office. In the data that Color of Change collected, only 94 prosecutors of color were elected to office as of 2016. Of these, 60 ran unopposed in their last election, or 64 percent. Of the 2223 white prosecutors currently elected to office, 1627 or 73 percent ran unopposed. Although the percent of white incumbents who ran unopposed is slightly higher, there is not enough data to draw a conclusion primarily because there are so few prosecutors of color in office. Interestingly, three states (New Jersey, Connecticut and Alaska) appoint prosecutors. In these states, 32 percent of the prosecutors are people of color compared to just 4 percent of prosecutors who are elected. Color of Change hopes to track election outcomes over time in order to better understand what might be driving these differences.

After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused:

  • They can recommend whether the defendant should be released on bail, and can recommend a bail amount.
  • They can adjust the charges, making them more or less severe, felonies or misdemeanors.
  • They can decide whether a child is charged as a juvenile or an adult.
  • They can add or subtract counts.
  • They can also convene grand juries to determine which charges to pursue.
  • The prosecutor can also decide not to press charges at all.

“At any time, until a jury is sworn or a plea taken by the court, the state attorney can chose to drop the case,” said Gordon Weekes. “That is always their power, for many reasons: not enough evidence, it’s not in the interest of the public to go forward, there’s an alternative that better suited.”

Because laws outline recommended prison sentences, or even dictate mandatory minimum sentences for particular crimes, a prosecutor can have far more latitude over a defendant’s ultimate prison sentence than a judge, based solely on what charges are brought. For example, at the federal level, someone accused of a misdemeanor charge of possession of marijuana could be fined $1,000 and spend a year in jail. With felony charge of selling marijuana, the fine could be $250,000 and the sentence, five years in prison. Weekes notes that the stronger the threat of punishment, the more inclined a defendant might be to just plead guilty and end the case rather than incur lawyer fees and take up time as the case goes to trial.

In Broward County, Florida, the site of the mango crime, the state attorney is Michael Satz, who was elected to his role in 1976 and has won every election since. He is now 73 years old. On his website, Satz makes no secret of his mission. He brags that in 1992, he “achieved the highest total conviction rate for trials and guilty pleas in the state, a high standard his office works hard to maintain.”

Satz made his reputation for being tough on crime during the drug wars of the 1980s and 90s -- and, critics, say, that reputation was built the backs of minorities. “He’s sent thousands of people to prison on very, very minor drug offenses,” Weekes said. “There’s probably more drug crime occurring on college campuses, but no one is going to any college and kicking down the dorm room door to find a bong under the bed.

“He’s a very nice guy, but he’s lost in a different age and different time,” Weekes said of Satz. “Because he doesn’t have any true connection to people who are impoverished, who have had to struggle, he can’t relate to a lot of the people entering the criminal justice system. There is a lack of empathy that comes from that office -- and countless examples in the ways they choose to prosecute cases.”

September 29, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, September 25, 2016

"The Under-Policed"

The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.

Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?

Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice?  If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed?  Finally, how might those conversations impact the issue du jour, mass incarceration?  This essay concludes by offering some suggestions for reducing mass incarceration.

September 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (18)

Thursday, September 22, 2016

What could it mean politically and practically if — or should I say when — sentencing reform really becomes a "Latino Issue"?

LatinosReportCoverThe question in the title of this post is prompted by this interesting new Atlantic piece/interview authored by Juleyka Lantigua-Williams and headlined "Criminal Justice Is Becoming a 'Latino Issue': Yet there’s still a great deal we don’t know about Latinos and the criminal justice system." Here is how the piece begins:

Immigration has been the signature issue of political campaigns that want to appeal to Latinos, a group that has grown to encompass 17 percent of the population. But the last few years have poked big holes in the idea that Latinos only care about immigration, showing that Latino voters also care about terrorism, social security, and the environment. A growing number of Latinos are also becoming concerned about criminal justice reform, as more join the call for systemic changes at the federal and state levels.

Latinos are overrepresented both among victims of violence and among those behind bars. Latinos under 30 are almost three times as likely to be homicide victims as whites the same age, according to the Tomás Rivera Policy Institute at USC. They are also more likely to be threatened or attacked with a gun. And when Latinos report crimes, the report is less likely to lead to an arrest than the same crimes do when the victims are white.

In a 2014 report, the Violence Policy Center gathered valuable information on the profiles of Latino victims of crime. The homicide rate is more than twice as high as that of whites, and homicide is the second-leading cause of death for Latinos 15 to 24 years old. About 41 percent of Latino homicide victims in 2011 were younger than 24. Among blacks, the rate was 40 percent, and among whites it was 22 percent. In prisons, 20 percent are Latino, according to the Department of Justice, which indicates that if current rates continue, one of every six Latino men can expect to spend time in jail over their lifetime.

Yet a great deal of data that would help policymakers and advocates understand Latinos’ relationship to law enforcement has yet to be collected — there is much more data about whites and blacks’ encounters with the criminal justice system. After hitting some dead-ends in my search for answers about Latinos’ perceptions of, and experiences with the penal institutions and law-enforcement authorities in the country, I reached out to Alex Piquero, a criminologist at the University of Texas, Dallas, with some of my most pressing questions. An abridged and edited version of our conversation follows.

Juleyka Lantigua-Williams: I’m trying to address the question of whether Latinos care enough, or care at all, or should care more about criminal justice reform. What’s your perspective on that?

Alex Piquero: There are two main things that the research evidence is very clear about. The first one is, unfortunately, we do not have a lot of information on Hispanics in the criminal justice system, in general, whether it’s their offending, whether it’s their perceptions of the system. That’s primarily because of the lack of data collection that has occurred in this country for over a hundred years.

We’re getting better, we’re now starting to collect that data. For example, the FBI started to collect that information with arrest statistics. Traditionally, most of the research on criminal justice issues, whether it’s looking at offending patterns or incarceration rates, or people’s perceptions about the criminal justice system and their experiences has been only focused on blacks and whites, because of data constraints. Now we’re starting to get a little bit of a picture with respect to Hispanic and Latino views.

Lantigua-Williams: What do you think has been the effect of this lack of data, specifically on Latinos?

Piquero: We just had no idea what Hispanics felt about with respect to the criminal justice system or their experiences. That’s been one of the very big limiting factors of that area of work, that’s really important to say because we don’t have fifty years of research on a topic like that, whereas we do with respect to whites and African Americans. That said, the most recent research is complicated because there’s a lot of variability within Hispanics.

Cubans, Puerto Ricans, Mexicans, Central Americans, they may not see and/or interpret the criminal justice system in the same way. Sometimes you’re going to see differences within the groups, but we have very little information, for example, on what Puerto Ricans think about the criminal justice system because, typically, those studies have always lumped together the various Hispanic groups. Now, that said, Hispanics care about the criminal justice system just as much as whites and African Americans do. They are interested in it, they have experiences about it, and I think Hispanics are no different from whites and African Americans in that they see needs for reform. There’s no perfect system, but there’s not a lot of variability with respect to what parts of the system they may want to see reformed.

September 22, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Wednesday, September 21, 2016

Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"

Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups.  Here are excerpts:

In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.

The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."

Moreover, child porn producers were very different than the normal federal offender.  They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college.  In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education.  There was a high degree of employment among child pornography production offenders at the time of their arrests.  Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."

But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.”  So let me give you an example.  Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.

"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."

What happened to these young girls, mostly in their early teens, was horrendous.  Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.

My part of this case was simple.  The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI.  He told me that he was relieved when the feds came to the door because he didn’t know how to stop.  He immediately spilled his guts.  I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison.  His Guideline range was life.

He was very smart to have accepted the deal because I would likely have imposed a life sentence.  Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify.  I also sentenced him to a life of supervised release when he gets out of prison as an old man.  He was capable of making, and I required him to pay, a substantial amount of restitution to the children.

As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries.  I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.”  Perhaps I could call them “white devils!”  Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.

What the hell is wrong with white guys?

[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers.  See here.

September 21, 2016 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Sunday, September 18, 2016

Any distintive thoughs, dear readers, on notable new video, "Jay Z: 'The War on Drugs Is an Epic Fail'"?

This past week, the New York Times released this "op-ed" and video, which is embedded below, under the headline "Jay Z: ‘The War on Drugs Is an Epic Fail’."  This description of the video is provided by Asha Bandele, a senior director at the Drug Policy Alliance: 

This short film, narrated by Jay Z (Shawn Carter) and featuring the artwork of Molly Crabapple, is part history lesson about the war on drugs and part vision statement. As Ms. Crabapple’s haunting images flash by, the film takes us from the Nixon administration and the Rockefeller drug laws — the draconian 1973 statutes enacted in New York that exploded the state’s prison population and ushered in a period of similar sentencing schemes for other states — through the extraordinary growth in our nation’s prison population to the emerging aboveground marijuana market of today. We learn how African-Americans can make up around 13 percent of the United States population — yet 31 percent of those arrested for drug law violations, even though they use and sell drugs at the same rate as whites.

Notably, this Vox commentary by German Lopez provides a sharp review of this effort via its extended headline: "Jay Z’s viral video about the war on drugs gets mass incarceration all wrong: The video is well argued and beautifully drawn. It’s also completely wrong." 

September 18, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Thursday, September 15, 2016

"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"

The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:

Criminal justice debt has aggressively metastasized throughout the criminal system.  A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections.  As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.

Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury.  This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem.  The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.

September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, September 13, 2016

Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?

I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:

No Democratic Senate candidates are talking about Garland in paid television ads.  No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.

Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.

Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....

The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.

NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”

O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”

She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”

Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.

“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.

Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”

As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

September 13, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

Wednesday, August 31, 2016

Latino legislator group calls for ending the death penalty

As reported in this NBC News piece, a "group of Latino legislators passed a resolution demanding the end of the death penalty in the United States because it disproportionately affects people of color of all ages." Here is more:

The National Hispanic Caucus of State Legislators said there is disproportionate punishment for Latinos, Black Americans and Native Americans. "The disproportionate and prejudicial application of the death penalty towards Latinos and other minorities, the high costs of this cruel and unusual punishment to our tax payers and the increasing likelihood that innocent people can be wrongfully executed by the states — among many other compelling reasons — led us to raise our voices to call for an end to capital punishment," said NHCSL President and Pennsylvania State Representative Ángel Cruz in a statement.

The non-profit, non-partisan group is made up of 320 Hispanic legislators in the U.S., Puerto Rico and the Virgin Islands. "Black, Latino, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as an adult, and are more likely to be sentenced to death in the USA," the resolution reads.

The resolution asks the U.S. congress and local municipalities to search for alternatives to combating violence and repeal the death penalty. The group points out that death penalty cases often cost taxpayers millions of dollars — an Urban Institute study found death penalty cases cost an average $3 million per trial, nearly three times as expensive as a trial without the possibility of a death penalty. "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities," Cruz stated....

Rep. Dan Pabón, D-Colorado, said the death penalty is the "civil rights issue of our time."

"Even if repealing the death penalty results in one innocent life being saved, it's worth it. Our criminal justice system should focus on 'justice,'" Pabón said.

As I noted in this prior post, because Latinos make up nearly 40% of the population in California, how they cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in that state. But, if they focus a bit on the fuzzy thinking of Rep. Dan Pabón, they might end up being inclined to vote in favor of retaining the death penalty. Though the evidence about the deterrence effective of the death penalty are mixed, I think it is likely folks think that the death penalty is more likely to save innocent lives than to end them. For that reason (and because many think justice supports capital punishment for the worst murderesrs), I am not sure he is making a strong argument for repeal.

In addition, I cannot help but find remarkable the assertion that the death penalty, which impacts at most a few dozen people of color each year, should be considered the "civil rights issue of our time." I guess the Representative must think that all the other civil rights issues that impact tens of millions of individuals in the US are now all squared away.

August 31, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Thursday, August 25, 2016

New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"

In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty.  That report,  Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage.  But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America."   Here are a few excerpts of a great read from the pen of Emily Bazelon:

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away?  The 16 counties span seven states in the South and the West.  They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La.  Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split.  Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.  They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...

Black jurors are relatively absent from death-penalty trials, which can affect their outcomes.  “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court.  Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.

Prosecutors also can take steps to keep them off juries.  In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group.  “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.

Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life.  They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16.  Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.

Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s.  Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos.  This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state.  “They are all white.  Fourteen percent of the trial judges are black.  Out of 42 elected prosecutors in the state, one is black.”  Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.”  Mobile County is the site of the last known lynching in the country, in 1981.  (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.)  Jefferson had the state’s highest total of lynchings between 1877 and 1950.  In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.

August 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, August 23, 2016

"Racial Origins of Doctrines Limiting Prisoner Protest Speech"

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

This article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement.  Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech . The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces.  Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized.  The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderly and prohibits prisoner solicitation for union membership.  Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech.

Neither Adderley nor Jones acknowledge the racial origins of the cases. Holdings in both cases relied on race-neutral rationales and analysis and yet, the underlying concerns in each case appear tied to racial concerns and fears.  Thus this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race.  Today’s protesters face a demonstrably different doctrinal landscape, should they protest within the prison or jail walls.  While the content of speech by a “Black Lives Matter” activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.

August 23, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Sunday, August 21, 2016

Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data

U.S._incarceration_rates_1925_onwardsA couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):

The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....

In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all.  But around the turn of the millennium, the African American imprisonment rate began declining year after year....

At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.

A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.

These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans.  Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years.  I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).

That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States.  Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration.  A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":

August 21, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Wednesday, August 17, 2016

"Overlooked: Women and Jails in an Era of Reform"

The title of this post is the title of this notable new report released today by the Vera Institute of Justice.  This Vera webpage provides this overview of the report:

Since 1970, there has been a nearly five-fold increase in the number of people in U.S. jails — the approximately 3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. Despite recent scrutiny from policymakers and the public, one aspect of this growth has received little attention: the shocking rise in the number of women in jail.

Women in jail are the fastest growing correctional population in the country — increasing 14-fold between 1970 and 2014. Yet there is surprisingly little research on why so many more women wind up in jail today. This report examines what research does exist on women in jail in order to begin to reframe the conversation to include them. It offers a portrait of women in jail, explores how jail can deepen the societal disadvantages they face, and provides insight into what drives women’s incarceration and ways to reverse the trend.

This Vera fact-sheet provides this additional information about some of the report's various findings and themes:

Available research to help explain why women are increasingly incarcerated in U.S. jails is scarce, dated, and limited in scope. Nevertheless, general data about women in the criminal justice system provides clues about who these women are, and why they end up in jail. Like men in jail, they are disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.

The majority are charged with lower-level offenses—mostly property and drug-related—and tend to have less extensive criminal histories than their male counterparts. Unlike incarcerated men, women in jails are often primary caregivers to their young children—nearly 80 percent of women in jails are mothers, and most are single parents.

Once incarcerated, women must grapple with systems, practices, and policies that are designed for the majority of the incarcerated population: men. With limited resources, jails are often ill-equipped to address the challenges women face when they enter the justice system. As a result, many women leave jail with diminished prospects for physical and behavioral health recovery, with greater parental stress and strain, and in even more financially precarious circumstances than before becoming caught up in the justice system.

As interest in rolling back the misuse and overuse of jail increases, women frequently remain an afterthought in discussions about reform; yet the roots and trajectory of their increasing rate of jail incarceration demand further study. This report documents the existing foundation for reform that can potentially set the stage for further, well-crafted programs and practices to stem the flow of women cycling through the nation’s local jails.

August 17, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 15, 2016

"What's Wrong With Sentencing Equality?"

The title of this post is the title of this notable new paper authored by Richard Bierschbach and Stephanos Bibas now available via SSRN.  Here is the abstract:

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random.  This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race.

Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment.  But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment.  It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework.

More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness.  They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

I am very much drawn to the themes of this paper, and thus I am looking forward to finding time to read all the particulars.

August 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Sunday, August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, August 11, 2016

Could "conservative Latinos religious groups" become a significant voice and force in death penalty debates (at least in California)?

The question in the title of this post is prompted by this intriguing new Fox News Latino article headlined "Conservative Latino religious groups make big push to end death penalty." Here are excerpts:

A growing number of conservative Latino religious groups are beginning to shift their position on capital punishment, due in large part to a belief among them that it disproportionately affects minorities. “Given studies on how the death penalty is meted out, particularly for people of color, if it’s not a level playing field, we need to speak out,” Reverend Gabriel Salguero, founder of the national Latino Evangelical Coalition (NaLEC) told Fox News Latino.

“The needle has moved for Latinos and evangelicals," Salguero said. "Botched executions and advancements in DNA science have awakened us to a moral response."

According to the latest figures from the Bureau of Justice Statistics, Latinos represent a larger portion of those on death row than they did in the past. Half of new Latino death row inmates were from California, bringing their total to 157 inmates, the most in the country. Hispanics now represent 13.5 percent of the U.S. death row population – up from 11 percent in 2000.

A study conducted by University of Nebraska-Lincoln psychology and ethnic studies professor, Cynthia Willis-Esqueda and her colleague, Russ K.E. Espinoza of California State University, Fullerton, found that white jurors were more likely to impose the death penalty in cases where the defendant was Latino and poor. A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos.

“There’s an almost impossibly disproportionate number of Latinos incarcerated – a third of the labor force has a criminal record,” Juan Cartagena, president and general counsel of Latino Justice (PRLDEF), told Fox News Latino. “There’s easy acceptance that the criminal justice system is a racially skewed system,” Cartagena said.

In June, the National Hispanic Leadership Agenda (NHLA), a coalition of 40 prominent Latino organizations, joined several bipartisan groups calling for the end to the death penalty, saying that Latinos are “directly affected by its injustices.”...

This November, the death penalty will be on the California ballot. Proposition 62 seeks to repeal the statute. “There’s been a shift, not just attributed to religion, but a heightened understanding of the death penalty and its implicit bias in the criminal justice system,” Thomas Saenz, president and general counsel of MALDEF, and a nationally recognized civil rights attorney, told Fox News Latino. “The time is right, but it’s a ballot with 17 measures on it. Whether the issue gets the attention it deserves, who knows,” he added.

Salguero said it made sense for clergy to lead the charge on the fight to end the death penalty. “We’ve been pro-life all along, but what does that mean? If even one innocent person is killed, it’s too many,” Salguero said....

“The gospel teaches us that crime has a place, but God has the last word," Salguero said. "We’re against the ultimate role. We have ministries in prisons. If anyone has a moral platform it is the clergy. I think in my heart of hearts we can do better than executing people." “Christ was an innocent man who was executed. If there’s a possibility that we execute one innocent person we should have pause.”

Because Latinos make up nearly 40% of the population in California, how they general cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in the state.  This press article from January 2016 reports on polling done around that time suggesting that Latino voters favored repealing the death penalty to speeding up executions by a margin of 54% to 42%.  If the opposition within the Latino community has continued to grow (and certainly if it reaches the typical 2-1 opposition found in polling of African Americans), I think the repeal efforts of abolitionists in California might have a pretty good shot at carrying the day.

August 11, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, August 09, 2016

"Put Away The Pitchforks Against Judge Persky"

The title of this post is the headline of this lengthy new Politico commentary authored by Lara Bazelon, which carries this sub-headline "Yes, he gave Stanford rapist Brock Turner a break. But to recall him would be to overturn our legal system."  Here is how the commentary, which merits a full read, gets started:

On this we can all agree: Brock Allen Turner, a blonde-haired, blue-eyed, one-time All-American Stanford freshman swimmer, is stone cold, beyond-a-reasonable-doubt guilty of committing a violent sexual assault against an unconscious woman behind a dumpster. Because what Turner did was brutal, criminal and depraved, and because of his utter lack of remorse—much less insight into his behavior—he should have gone to prison.

But the reaction to the lenient sentence given to Turner by Santa Clara County Superior Court Judge Aaron Persky is, frankly, frightening, dangerous and profoundly misguided.

In a charge spearheaded by Stanford law professor Michele Dauber — a close friend of the victim’s family — an effort is underway to recall Persky from office.  Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement.  The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.

Earlier this summer, prosecutors filed a motion to disqualify Judge Persky from presiding over another sexual assault case involving an unconscious victim — a sedated patient allegedly fondled by a nurse.  More recently, Persky came under fire once again for imposing a three-year sentence on a Latino man who committed an assault, that, on the surface at least, seemed similar to Turner’s.   But unlike the Turner case, the sentence was imposed after the defense and the prosecution agreed to it.  Nevertheless, the mob pounced. It was yet another sign, they said, of Persky’s bias toward white, affluent men — presumably the only kind of person he was able to relate to.  Dauber told NPR, “Hopefully, a qualified woman will replace him.”

As a law professor well-versed in the vital importance of an independent judiciary, Dauber should know better. Removing a judge — never mind investigating him for misconduct — because of a single bad decision undermines the rule of law.  It sends a chill down the spines of elected judges everywhere, which is nearly every judge in the state court across the United States.

I am pleased to see someone talking about rule-of-law concerns if/when folks get heavily invested in seeking to recall a judge for what is viewed as a bad ruling. But I actually think the Brock Turner case serves as even more of an object lesson in how hard it will be to fully address modern mass incarceration in the United States when there are still so many powerful and prominent Americans who are eager to devote time and energy to vindicate and operationalize the view that lengthy terms of incarceration are the only "fitting" form of punishment for many crimes and many defendants.

Some prior related posts:

August 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, July 28, 2016

New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county

In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers.  Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state.  Here are the details (and links) via the start of the blog posting:

A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment.  The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.

The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”

The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.

Currently there are more than 150 individuals serving JLWOP in Wayne County.  While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan.  Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black.  D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.

July 28, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?

DownloadThe question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon.  The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?".  The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged.  Here are some details:

Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland.  If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....

On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez.  That's barely enough cannabis to dust the bottom of a Ziploc.

"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.

Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.

Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government.  Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...

The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor.  Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot?  After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."

But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."

As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....

Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....

Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.

But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....

Thomas was never technically arrested for marijuana possession.  On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.

Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....

Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."

"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...

The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle.  It's also a stark reminder that the War on Drugs isn't over — even in Oregon.

Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal.  Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."

Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."

Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it.  To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."

The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program.  But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.

"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."

Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...

Thomas is scheduled for trial Sept.13.

Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).

I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.

July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Monday, July 25, 2016

"Does 'Ban the Box' Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden"

The title of this post is the title of this notable new paper authored by Jennifer Doleac and Benjamin Hansen now available via SSRN. Here is the abstract:

Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from conducting criminal background checks until late in the job application process.  Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment.  However, removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them.  In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable.  This would worsen employment outcomes for these already-disadvantaged groups.

In this paper, we use variation in the details and timing of state and local BTB policies to test BTB’s effects on employment for various demographic groups.  We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men.  These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.

July 25, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Wednesday, July 20, 2016

"How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System"

The title of this post is the title of this intriguing new article authored by Matthew Clair and Alix Winter from the jounral Criminology and available at this link. Here is the abstract:

Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system.  Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them.  By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing.

Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates.  To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist.  Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws.

We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.

July 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Wednesday, July 13, 2016

Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing

In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools.  Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge.  The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:

In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."

Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.

Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing.  Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....

Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.

The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "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."

Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process.  Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.

Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.

We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community.  Therefore, the circuit court did not erroneously exercise its discretion.

Prior related posts:

July 13, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 20, 2016

"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"

The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records.  However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.  

To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies.  Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race.  Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods).  Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates.  However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect.  Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas

Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).

Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul.  Here is how Justice Alito starts his dissent on one of these cases:

This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.

June 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, June 14, 2016

Notable South Carolina affinities and disaffinities for capital prosecution of Charleston mass murderer Dylann Roof

This recent local article out of South Carolina provides an interesting review of interesting survey data about opinion on the high-profile capital prosecution(s) of a local mass murderer.  The article is headlined "Most SC blacks say Dylann Roof should get life without parole," and here are excerpts:

A majority of black South Carolinians say Dylann Roof should be sentenced to life without parole — not death — if he is found guilty of murdering nine African-American members of Charleston’s Emanuel AME Church. But most white South Carolinians say Roof should be sentenced to death if he is found guilty, according to a University of South Carolina poll.

Roof faces federal and state charges in connection with the Charleston massacre. Both federal and state prosecutors have said they will seek the death penalty. The difference of opinion over Roof reflects historically differing attitudes toward the death penalty between black and white South Carolinians, according to the USC poll, released Saturday.

The poll — on race relations a year after the Emanuel Nine massacre — also found stark differences in how South Carolina’s white and African-American residents view the criminal justice system.

The poll found:

▪ A majority of black South Carolinians — 64.7 percent — said Roof should be sentenced to life without parole if found guilty.

▪ Just three in 10 African Americans — 30.9 percent — said Roof should be sentenced to death. Another 4.4 percent said they didn’t know what the punishment should be, according to the poll, which surveyed 800 random S.C. adults.

▪ The majority of whites — 64.6 percent — think Roof should be sentenced to death.

▪ Only 29.9 percent of whites think Roof should be sentenced to life without parole; 5.6 percent of those surveyed said they didn’t know.

The question of whether to seek the death penalty against Roof divides the families of those slain in Charleston. Some family members oppose the death penalty. Others say it would be justice. The findings of the USC poll reflect most black South Carolinians’ consistent opposition to the death penalty and most whites’ consistent support for it, said Monique Lyle, a USC political scientist who co-conducted the poll with USC’s Bob Oldendick.

The majority of black South Carolinians — 64.9 percent — oppose the death penalty, according to the poll. The majority of white South Carolinians — 69.4 percent — favor it. The African-American community’s opposition to the death penalty reflects its history with the criminal-justice system, said Kylon Middleton, senior pastor of Charleston’s Mount Zion AME Church.

“Most black people would not want someone to be executed because” so many African Americans have been executed, said Middleton, a longtime friend to Clementa Pinckney, the Emanuel pastor and state senator who was among the nine slain. “We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment,” Middleton said, citing America’s history of slavery.

Beyond that history, African Americans also tend to be extremely religious, said state Rep. Todd Rutherford, D-Richland, noting the Bible commands: Thou shall not kill. In addition, a life sentence without parole now means that a defendant will spend life in prison. “That seems to be sufficient for most African Americans as punishment,” even in the case of Roof, Rutherford said, an attorney. The African-American community also believes in a rehabilitative and repentant society, said state Sen. Gerald Malloy, D-Darlington, who declined to discuss Roof specifically. (Malloy, an attorney, represents the family of Sen. Pinckney.)

African Americans also have concerns about the fairness of the justice system, said Todd Shaw, a USC professor of political science and African-American studies. “I don’t think there would be an exception for someone such as Dylann Roof,” Shaw said, adding some African Americans feel “bringing about his death will not bring about justice.”

A few prior related posts:

June 14, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Friday, June 10, 2016

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this notable data-heavy new report from The Sentencing Project.  Here is part of the reports "Overview" section:

Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism.  As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%.  Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.

At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions.  The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance.  Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement.  These consequences set individuals back by imposing new punishments after prison.  Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects.  Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling.  An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.

This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.

June 10, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group

I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:

Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.

The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.

The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:

The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:

(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;

(2) Including in USSG §1B1.1 a definition of “court protection order;”

(3) Amending USSG §5H1.1 regarding the “age” policy statement; and

(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.

The TIAG recommends that the Commission adopt certain policy changes including:

(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;

(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and

(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

The TIAG also recommends that the Commission support changes in federal law and practice including:

(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;

(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;

(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;

(4) Better training of federal employees who work in Indian country about Native American history and culture; and

(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.

This Report provides the basis for and an explanation of these and other recommendations.

June 6, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, June 04, 2016

Could criminal defendants try to use GOP Prez candidate Trump's bias claims to bollix up prosecutions?

160601-trump-curiel-mn-1130_27cbe2a864fffd0c78aefb18f60a06c9I always try to stay open-minded about all people's political and personal perspectives, and I have thus to date been disinclined to think the worst about GOP Prez candidate Donald Trump and the prospect of him becoming the next President of the United States.  But I am quite troubled by Trump's recent attacks on a federal judge, and those attacks prompt the provocative question in the title of this post.  This new NPR piece, headlined "Trump Presses Case That 'Mexican' Judge Curiel Is Biased Against Him," provides the basic backstory:  

Donald Trump is intensifying his attacks on the federal judge presiding over fraud lawsuits against Trump University. On Friday the presumptive Republican presidential nominee, dismissing criticism from legal experts on the right and left, pressed his case against U.S. District Judge Gonzalo Curiel, saying the Indiana-born judge is biased against him because "he's a Mexican.  We're building a wall between here and Mexico."

Trump made the remarks, and others like it, repeatedly, in interviews with CNN and The Wall Street Journal, referring to Judge Curiel variously as "of Mexican heritage" or just "Mexican."  But the message was always the same, that the judge had what Trump called "a conflict" because of his ethnicity.

At a rally in San Diego last week, Trump characterized the judge as "a hater of Donald Trump, a hater. He's a hater." And "they ought to look into Judge Curiel."  In public, Trump has called repeatedly for the judge to recuse himself, but his lawyers in fact have not made any such request.

That is undoubtedly because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge.  If they were, lethal ethicists observe, the legal system would fall into chaos because no judge would be free from taint.  The five Supreme Court justices who are Catholic could not rule on a case in which the Catholic church participated, but neither could the other justices who are not Catholic.

Moreover, while Trump is free to say anything he wants about the judge, the lawyers in the case are bound by the professional rules of conduct and could be sanctioned for making such charges about Curiel without actual evidence of bias.  Legal ethics expert Stephen Gillers notes in addition that litigants may not wait to seek a judge's disqualification; they must move to recuse the judge as soon as they know there is a conflict.

Trump's lawyers, from the prestigious O'Melveny & Myers firm, however, have not done that. Indeed, some observers argue that the judge did the candidate a big favor by postponing the trial in the case until after the election. And Trump did not become bellicose about Curiel until the judge, at the request of news organizations, ordered the unsealing of documents in the case — documents that have proved embarrassing for the GOP presumptive nominee.

"This is not really about rebutting accusations that Trump University defrauded its students," said NYU's Gillers. Rather, it is a kind of dog whistle to supporters, "a way to keep the subject of illegal Mexican immigration on the front page."

Judge Curiel, appointed to the federal bench by President Obama, was born in Indiana, the son of Mexican-American immigrants. He served for 17 years as a federal prosecutor in California, rising to chief of narcotics enforcement in the southern district. In 1997 he was believed to be the target of an assassination attempt from a Mexican drug cartel, was put under 24-hour watch by the U.S. Marshall Service for a year, was moved to a military base and eventually to Justice Department headquarters in Washington, D.C.

I am not aware of any criminal defendants who have successfully sought disqualification of a judge (or a prosecutor) based solely on the basis of that judge's race, ethnicity, gender, religion and sexual orientation.  That said, I certainly have heard criminal defendants assert, like Donald Trump, that a prosecutor or a judge is biased on one of the bases.  And if repeatedly making such claims in public to serve a political or personal agenda is good enough for the GOP's Prez nominee, why couldn't a criminal defendant unhappy with how a prosecution is moving forward start making similar claims to serve his hew own agenda?

June 4, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Tuesday, May 31, 2016

"Marijuana Enforcement Disparities In California: A Racial Injustice"

The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:

Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction.  Subsequently, misdemeanor marijuana arrests plummeted by 86 percent.  Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher.  This can be a substantial burden for young and low-income people.  According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....

Infraction data are hard to come by in California.  The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys.  In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.

These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough.  There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys.  While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.

Cross-posted at Marijuana Law, Policy & Reform

May 31, 2016 in Data on sentencing, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, May 30, 2016

Making the case for "Why Latinos Should Invest in Sentencing Reform"

Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:

Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.

Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.

This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.

Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....

Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.

May 30, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, May 28, 2016

"To Save Our Justice System, End Racial Bias in Jury Selection"

The title of this post is the headline of this New York Times op-ed authored by one of my favorite former bosses, US Court of Appeals for the Second Circuit Judge Jon O. Newman. Like all writing by Judge Newman, this piece is astute and sensible, and it provides a sound and simple recommendation forimproving the operation of our modern criminal justice system. Here are excerpts:

The Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection.  The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.

Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10.  In federal death penalty cases, each side has 20.  State numbers vary.

In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race.  Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager.  The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.”  The plan worked, and an all-white jury sentenced Mr. Foster to death.

This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009....

The Advisory Committee on Rules of Criminal Procedure, which is part of the Judicial Conference, the federal court system’s principal policy-making body, should propose sharply reducing the number of jury strikes allowed in federal trials. Several Supreme Court justices have suggested as much. Justice Thurgood Marshall endorsed such a reform in his concurring opinion in the 1986 case Batson v. Kentucky: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process.  That goal can be accomplished only by eliminating peremptory challenges entirely.” In 2005, Justice Stephen G. Breyer also urged reconsideration of the peremptory challenge system.

Total abolition of peremptory challenges would most likely face vigorous opposition from prosecutors and some defense attorneys. And it’s unlikely to be achieved, either for federal or state criminal trials.  But reducing the number will do significant good.  In 1879, the Supreme Court declared that to single out African-Americans for removal from jury service “is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.”  All-white juries will continue to be a blight on the American system of criminal justice until federal and state rule makers significantly reduce the number of peremptory challenges.

Prior recent related posts:

May 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Friday, May 27, 2016

"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."

The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:

On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped.  Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.”  The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country.  The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....

There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent.  In America, a president is the commander in chief.  Anyone who voted for Obama necessarily voted for violence.  Furthermore, there is indisputable evidence that violence sometimes works.  The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.

But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends.  Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example.  Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name.  If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?

Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak.  The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat.  And the same political officials will stand up next January and praise King even as they act contrary to his words.  “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”

A few prior related posts:

May 27, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14)

Tuesday, May 24, 2016

Dynamic commentary on SCOTUS work in Foster and related Monday news

A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman.  Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:

The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.

UPDATE Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:

May 24, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)