Tuesday, December 05, 2017

Notable advocate makes notable pitch to abolish juve LWOP

Malcolm Jenkins, who I still remember as a great Buckeye ballplayer, is now an NFL star using his voice and platform to discuss criminal justice reform issues.  He has this notable new commentary about juve LWOP under this full headline "America is the only country in the world still sentencing our kids to die in prison:For too long we have depicted our youth, especially our black youth, as lost causes. But they can change."  Here are excerpts:

As a black man in America, I’m keenly aware that people who look a lot like me are over-represented in the criminal justice system. The way adults of color are treated in our justice system is already upsetting, but the way our justice system treats children, especially black children, is simply deplorable.

Nowhere is this more clearly evident than on the issue of juvenile sentencing. Black children are grossly over-represented when it comes to kids sentenced to life without parole. This disturbing reality is personal to me: In Pennsylvania, where I live and play football for the Philadelphia Eagles, nearly 80% of juvenile lifers are black.

In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances.  Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed.  Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance.  Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.”  But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth.  We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole....

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most.  According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once.  Today, these kids deserve a second chance.  Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way.  Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause.  But they can change.  These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s.  These are children.  Studies show that even those accused of the most serious crimes age out of crime....

A lot of people might question why, as a professional athlete, I’m speaking out on criminal justice issues.  I believe that it is my duty to use my platform to raise awareness of the kinds of institutional injustices that so rarely make the news — and that we so rarely question.  And I want to elevate the work that so many amazing community grassroots organizations are doing to try and bring about this change.

Fortunately, there is some hope, finally, in my hometown.  Philadelphia’s newly elected District Attorney has stated he will not seek juvenile life without parole (JLWOP) for any kid, no matter the crime. He has also vowed to allow older cases to be considered for parole.  This is a great start.  Now, other prosecutors should follow suit.

No matter their race or hometown, rehabilitation is a beautiful thing. After all, there is nothing more American than giving someone who has worked hard a (second) chance to pursue life, liberty and the pursuit of happiness.

December 5, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Remorse Bias"

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

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

December 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (23)

Tuesday, November 28, 2017

"Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice"

The title of this post is the title of this notable new paper now on SSRN authored by Mark Bennett and Victoria Plaut. Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery.  We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor.  We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences.  We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

November 28, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Friday, November 17, 2017

"The Criminal Justice System Stalks Black People Like Meek Mill"

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

This month Meek Mill was sentenced to two to four years in prison for violating his probation. #FreeMeek hashtags have sprung up, and hundreds of his fans rallied near City Hall in Philadelphia to protest the ruling.

On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence.  Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.

What’s happening to Meek Mill is just one example of how our criminal justice system entraps and harasses hundreds of thousands of black people every day.  I saw this up close when I was growing up in Brooklyn during the 1970s and 1980s. Instead of a second chance, probation ends up being a land mine, with a random misstep bringing consequences greater than the crime. A person on probation can end up in jail over a technical violation like missing a curfew.

Taxpayers in Philadelphia, Meek Mill’s hometown, will have to spend tens of thousands of dollars each year to keep him locked up, and I bet none of them would tell you his imprisonment is helping to keep them safer. He’s there because of arrests for a parole violation, and because a judge overruled recommendations by a prosecutor and his probation officer that he doesn’t deserve more jail time....

Look at what he’s being punished for now: In March, he was arrested after an altercation in a St. Louis airport. After video of what had actually happened was released, all charges were dropped against Meek. In August, he was arrested for popping a wheelie on a motorcycle on his video set in New York.  Those charges were dismissed after he agreed to attend traffic school. Think about that.  The charges were either dropped or dismissed, but the judge sent him to prison anyway....

[I]t’s time we highlight the random ways people trapped in the criminal justice system are punished every day. The system treats them as a danger to society, consistently monitors and follows them for any minor infraction — with the goal of putting them back in prison.

As of 2015, one-third of the 4.65 million Americans who were on some form of parole or probation were black. Black people are sent to prison for probation and parole violations at much higher rates than white people.  In Pennsylvania, hundreds of thousands of people are on probation or parole.  About half of the people in city jails in Philadelphia are there for probation or parole violations.  We could literally shut down jails if we treated people on parole or probation more fairly....  Probation is a trap and we must fight for Meek and everyone else unjustly sent to prison.

Prior related post:

November 17, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7)

Thursday, November 16, 2017

"Violent Crime: A Conversation; Is it rising or declining? Does it matter?"

The title of this post is the headline of this notable new Marshall Project piece that captures highlights of a conversation last month that included a number of leading criminal justice researchers and advocates.  I recommend the full piece, and here is the  introduction and parts of the first few reprinted comments:

Over the last two years, there has been a great deal of arguing about the prevalence of violent crime in America and how the national crime rate is changing.  The president and attorney general say it’s soaring. Criminal justice reformers aren’t so certain.  A Who’s Who of crime researchers and experts gathered to tackle the question at the Smart on Crime Innovations conference at the John Jay College of Criminal Justice in New York City last month.... These excerpts have been edited for length and clarity. You can watch the conversation in its entirety here.

Thomas Abt: Just to start us off, in 2016, the last year for which we have the official UCR [FBI Uniform Crime Reporting] data, there were 17,250 homicides. That's up 8.6 percent from 2015 and that comes on the heels of a 12.1 percent increase in 2014-2015. That adds up to about a 21 or 22 percent increase in homicide over two years, which is the largest two-year increase in 25 years. At the same time, we have to acknowledge that the rates of violent crime here in the United States right now are about half of what they were at their peak in the early 90's....

In some ways this question of, “Is this a trend?” is somewhat besides the point because in some ways it doesn't matter. The rates were already far too high, much higher than in other developed nations and especially too high for poor communities of color. One thing I want to get across is that this issue of violent crime, of homicide, is an important issue, literally a matter of life or death, whether or not there is a trend going on. And too often this issue is considered a political football that's carried back and forth.

Criminal justice reformers sometimes want to downplay the issue because they worry that this is going to impact the momentum for other criminal justice reforms. Other people want to exaggerate the issue, and so fear and division link this to other issues like a broader cultural war, or tough on crime, or law and order agenda about crime and immigration.  It's very important that there is a progressive criminal justice response to the issue of violent crime. It disproportionately impacts the constituencies that we reformers claim we care about, which is poor communities of color. The violence in these communities causes intense suffering and if we fail to address that suffering, it's a real disservice to them.

Adam Gelb: Put yourself back 10, 12 years. 2005, 2006 we had two consecutive years of increase in violent crime. And at the time there were dire warnings that we were headed back to the peaks of the early '90s. That did not come to pass, which was terrific and I'm not going to try to prognosticate here. But there are a number of reasons to think that we might be seeing a leveling off, maybe even a decrease.

But in 2007, so exactly 10 years ago, after these two consecutive increases, the attorney general at the time, Alberto Gonzales, issued a statement that I think captures pretty darn well exactly where we are today after two years of consecutive increases. I'm going to read it to you so I get it right. In a speech, he said, "In general it doesn't appear that the current data reveal nationwide trends. Rather they show local increases in certain communities. Each community is facing different circumstances and in many places violent crime continues to decrease."...

Jim Parsons: Yes, there's been this average aggregate increase, but in 68 percent of places, either the crime rate stayed the same or it went down.  So if you're thinking about making national policy, about making national policy decisions based on these crime rates, and if you have the theory that being more punitive or reacting to increasing crime is going to improve the situation, then that would not apply in two-thirds of places.  You'll be making a decision and trying to fix something that was not broken — or at least the trend suggests that things are not getting more dangerous — in two-thirds of places....

David Kennedy: ...[I]n all big cities ... and in lots and lots and lots of other cities there are particular communities that have — while they've come down usually from the worst years of the 1990s — people who are living in unconscionable conditions of persistent violence, trauma, and fear.  We as a nation have taken that as normal and so when things change, we focus on the change.  The scandal is what's normal.  And in this moment where we're debating these small changes and the national homicide rate had come down to between four and five per 100,000 and is now edging back up toward five.  There are communities all over the country where especially young men of color are experiencing persistent homicide rates of over 500 per 100,000 year after year after year after year. That's the story, and everything we know about the increases are that they are in those same places, those same communities, those same people.  This is not reaching out into different demographics. It's not reaching out into different communities. It's not reaching out into places that have not experienced this problem. It’s worsening among the people and places that have been enduring this forever.

November 16, 2017 in National and State Crime Data, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Tuesday, November 14, 2017

U.S. Commission on Civil Rights issues statement in support of sentencing provisions of Sentencing Reform and Corrections Act of 2017

As reported in this news release, yesterday "the U.S. Commission on Civil Rights issued a statement in support of certain provisions in the Senate’s bipartisan Sentencing Reform and Corrections Act of 2017, which proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges in more cases." This three-page statement is available at this link, and here are excerpts (with footnotes omitted):

The U.S. Commission on Civil Rights, by majority vote, supports certain sentencing reduction provisions in the bipartisan Sentencing Reform and Corrections Act of 2017, recently introduced in the Senate.  The bill proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges on sentencing in more cases.  It moves sentencing levels down in many cases so that low-level crimes are adequately but not excessively punished.  It also makes retroactive sentencing reductions in crimes involving crack cocaine, which, prior to the enactment of the Fair Sentencing Act of 2010, were punished with extreme sentences compared with crimes involving powder cocaine.  The fair administration of justice requires criminal penalties to be proportional to the offense committed and for similar crimes to be subject to similar punishments. In addition, fair administration depends on public faith in the American justice system; this bipartisan bill takes important steps to restore the basis for that faith by addressing longstanding inequity.

The Sentencing Reform and Corrections Act contains necessary and important steps towards more equitable punishments in the federal system, advancing the fair administration of justice by better fitting punishment to crime.  If enacted, it would help reduce the outsize U.S. prison population without jeopardizing public safety.  It stands in contrast to the change in charging policy announced by the United States Department of Justice in May.  The Department of Justice’s policy regarding mandatory minimum sentences will result in lengthier, harsher prison sentences and additional taxpayer costs for both actual imprisonment and post-incarceration integration unless it is changed or checked by Congress through sentencing reform....

The application of harsher penalties and mandatory minimum sentences historically falls hardest on communities of color.  Although facially race-neutral, these policies have been applied in a racially disparate manner, raising concerns regarding legitimacy and fairness of our nation’s criminal justice system.  Use of mandatory minimum sentencing contributed to high incarceration rates for African-American and Latino men, despite comparable rates of drug use across communities of all races.  Devastating, community-wide impacts of these policies include one in nine children of color having a parent in prison.

National and international bodies have noted racially disparate treatment throughout the American criminal justice system, including in the application of mandatory minimum sentences.  Perhaps the most notable and egregious example of the racial disparities can be found in the different mandatory minimum sentences provided for offenses involving crack versus powder cocaine.  A bipartisan consensus in Congress passed the Fair Sentencing Act in 2010, reducing disparities between mandatory minimum sentences for different drugs, in part “because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences.” These changes should be made retroactive as the Sentencing Reform and Corrections Act of 2017 proposes in order to reduce excessive punishments for those already sentenced.

November 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"

This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:

The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system.  The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.

The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York.  In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....

“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased?  Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense?  As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”

“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:

  • Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.

  • In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations.  The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.

  • Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.

  • Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.

  • Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.

  • Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).

  • Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.

The report’s authors conclude with six recommendations, with guidance from previous research:

  • Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.

  • Build a risk-based system of pretrial practices to replace the current money-based bail system.

  • Keep youth out of confinement and the adult criminal justice system.

  • Review and modernize sentencing practices and policies.

  • Encourage local, community-driven solutions to crime through incentive funding.

  • Measure criminal justice success with better data collection and reporting.

“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”

November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Tuesday, November 07, 2017

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Thursday, November 02, 2017

Lots more impressive work in Teen Vogue's "Kids Incarcerated" series

In this post a few weeks ago I noted that Teen Vogue has been giving sustained attention to the issues of juvenile incarceration in this "Kids Incarcerated" series of articles.  This series now has dozens of articles that are work checking out, and these recent articles especially caught my attention and seemed worthy of additional promotion (though every article in the series looks great):

November 2, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Friday, October 27, 2017

Expressing concerns about how risk assessment algorithms learn

This New York Times op-ed, headlined "When an Algorithm Helps Send You to Prison," is authored by Ellora Thadaney Israni, a law student and former software engineer at Facebook. In the course of covering now familiar ground in the debate over the use of risk assessment tools at sentencing, the piece adds some points about how these tools may evolve and soundly urges more transparency in their creation and development:

Machine learning algorithms often work on a feedback loop.  If they are not constantly retrained, they “lean in” to the assumed correctness of their initial determinations, drifting away from both reality and fairness.  As a former Silicon Valley software engineer, I saw this time and again: Google’s image classification algorithms mistakenly labeling black people as gorillas, or Microsoft’s Twitter bot immediately becoming a “racist jerk.”...

With transparency and accountability, algorithms in the criminal justice system do have potential for good.  For example, New Jersey used a risk assessment program known as the Public Safety Assessment to reform its bail system this year, leading to a 16 percent decrease in its pre-trial jail population.  The same algorithm helped Lucas County, Ohio double the number of pre-trial releases without bail, and cut pre-trial crime in half.  But that program’s functioning was detailed in a published report, allowing those with subject-matter expertise to confirm that morally troubling (and constitutionally impermissible) variables — such as race, gender and variables that could proxy the two (for example, ZIP code) — were not being considered.

For now, the only people with visibility into COMPAS’s functioning are its programmers, who are in many ways less equipped than judges to deliver justice.  Judges have legal training, are bound by ethical oaths, and must account for not only their decisions but also their reasoning in published opinions.  Programmers lack each of these safeguards. Computers may be intelligent, but they are not wise.  Everything they know, we taught them, and we taught them our biases.  They are not going to un-learn them without transparency and corrective action by humans.

October 27, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (1)

Monday, October 23, 2017

New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation

This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State.  Here are the details as reported by the AP:

A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black.  The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent.  When the victim is black, the chances are 6 percent lower.

“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.

Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.

The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...

Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic.  Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.

In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.

Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths."  Here is how it starts:

A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.

“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”

The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”

October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Monday, October 16, 2017

"Racial Disparity in U.S. Imprisonment Across States and over Time"

The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto.  Here is the abstract:

The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014.  This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.

For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic.  Many states experienced a downturn in the black-white ratio starting in the 1990s.  Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Friday, October 13, 2017

"Financing the War on Drugs: The Impact of Law Enforcement Grants on Racial Disparities in Drug Arrests"

The title of this post is the title of this notable paper authored by Robynn Cox and Jamein Cunningham that I just noticed on SSRN.  Here is the abstract:

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

October 13, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Thursday, October 12, 2017

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 04, 2017

After recent SCOTUS win, Duane Buck gets plea deal to avoid any possible return to death row

As reported in this local article, headlined "Condemned inmate Duane Buck escapes death penalty," a Texas murderer consolidated a recent Supreme Court victory assailing his death sentence with a plea deal that ensure he will not return to death row. Here are the details from the start of the article:

Duane Buck — wearing handcuffs, leg irons and the yellow jail uniform of a high-profile inmate — doubled over in his courtroom chair and sobbed. "I'm sorry," he said.

It was the last act of a decades-long battle to execute the 54-year-old convicted killer for a double murder, ending not with lethal injection but a plea deal in a Harris County court.

Buck's courthouse deal was the third Harris County death penalty case stemming from a successful appeal resolved with a plea bargain instead of a retrial under District Attorney Kim Ogg. Buck, whose case went to the U.S. Supreme Court and was sent back to Houston for a retrial because of concerns about racist testimony in his 1997 trial, escaped death row by admitting guilt in the shooting rampage that killed two and injured two others.

The family of Buck's victims, however, were having none of his contrition. "The boy is a cold-blooded murderer," Accie Smith told reporters after the brief hearing. "He is not a victim of racism. He's a cold-blood, calculating murderer."

Smith is one of the older sisters of Debra Gardner, Buck's girlfriend, whom he killed along with her friend Kenneth Butler. After a night of drugs, alcohol and arguing with Gardner in July 1995, Buck broke into her home and shot four people. The victims included his sister, Phyliss Taylor, and his friend Harold Ebenezer, who both survived.

After Tuesday's plea, the slain woman's daughter recounted how she hung from Buck's back as a 13-year-old and tried to keep him from attacking her mother. "You took my mom," said Shenell Gardner. "We both get to live with this. I know what I feel; you feel as well."

The battle to execute Buck began when he was sentenced to die for the slaying of his girlfriend and Butler. After 20 years on death row and several appeals, the U.S. Supreme Court earlier this year granted Buck a new sentencing hearing because of testimony from an expert who told jurors that Buck was more likely to be dangerous in the future because he is black.

Gardner's family members, who are black, said they felt betrayed by the NAACP and black ministers who took up Buck's cause. "They threw us under the bus. What happened today is a travesty and it's a disgrace," Smith, the victim's sister, said. "I will never understand why his life is more important than her life."

On Tuesday, Ogg said she did not believe prosecutors could secure the death penalty again. The defense team would have shown that for 22 years, Buck has been a model prisoner, so he is unlikely to be a future danger. Also, his sister, whom he shot, has argued for leniency in his case.

Instead of going to trial, Ogg offered Buck the opportunity to admit guilt to two additional counts of attempted murder, hoping to stack the deck when the parole board reviews Buck's case in 2035. "A Harris County jury would likely not return a death penalty conviction today in a case that's forever been tainted by the specter of race," she said. The top prosecutor said she hopes the resolution of Buck's case will mark the end of race being used against defendants in capital cases. "Race is never evidence," Ogg said.

The dilemma with Buck getting a life sentence, by either a jury trial or a plea deal, is that he is sentenced according to the law at the time of the crime. Ogg said it was important to keep Buck behind bars for the rest of his life. A sentence of "life without parole" is not an option, even if both sides agreed to it, because that punishment did not exist in 1995.

Prior related posts on SCOTUS ruling:

October 4, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, October 03, 2017

"Most Women in Prison Are Victims of Domestic Violence. That's Nothing New."

The title of this post is the title of this new Time commentary authored by history Prof Karen Cox. Here are excerpts:

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years — and rightly so — there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.... [T]hanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant.  In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household....

Nationally, as the Vera Institute Report shows, the overwhelming majority of female prisoners are held for nonviolent offenses and most are women of color. Among them, 86% are victims of sexual violence.

The difficulties faced by female prisoners are now attracting the attention of politicians.  On July 11 of this year, Sen. Cory Booker (D-NJ) introduced the Dignity for Incarcerated Women Act, or the “Dignity Act,” on behalf of himself and Sens. Kamala Harris, Elizabeth Warren and Richard Durbin. The bill aims “To improve the treatment of Federal prisoners who are primary caretaker parents.” To that end, the Dignity Act calls for a more generous visitation policy for incarcerated mothers.  If passed, it would also prevent restraining pregnant women by shackling them or placing them in strait jackets, among other forms of restraint.  Prisons would provide parenting classes and trauma-informed care for those who need it, as well as make basic healthcare products like tampons available.  Gynecological care would also be mandatory.

Since July, the Dignity Act has only advanced as far as the Senate Judiciary Committee where no further action has been taken. Given the stark realities of life for incarcerated women, action cannot come soon enough. Our nation can and should do better than to allow Jim Crow-like prison policies to continue unchecked.

October 3, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3)

Tuesday, September 26, 2017

US Supreme Court, voting 6-3, issues last-minute stay of execution in Georgia

As revealed in this new order and explained in this local article, the "U.S. Supreme Court granted a stay of execution tonight to condemned killer Keith Tharpe, three and a half hours after he was scheduled to be put to death by lethal injection." Here are the basics:

In a 6-3 decision, the court’s justices were apparently concerned about claims that one of Tharpe’s jurors was racist and sentenced Tharpe to death because he was African-American. Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented.

The high court will now decide whether to hear Tharpe’s appeal, and, if it doesn’t, the court said the stay of execution shall terminate automatically. But that will not happen tonight.

Tharpe’s lawyers were overjoyed with the decision. “We’re gratified the court understands this case merits thoughtful consideration outside the press of an execution warrant,” said Brian Kammer, one of Tharpe’s attorneys. “We are extremely thankful that the court has seen fit to consider Mr. Tharpe's claim of juror racial bias in regular order."

Prior related post:

September 26, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Monday, September 25, 2017

Reviewing the racial bias and other concerns surrounding Georgia's planned execution of Keith Tharpe

CNN has this new article reviewing issues being raised in the run-up a scheduled execution in Georgia.  The article is headlined "Questions of racial bias surround black man's imminent execution," and here are excerpts:

The state of Georgia is set to carry out its second execution of the year on Tuesday, when it plans to put to death Keith Tharpe, who was sentenced in 1991 for murdering his sister-in-law.  But Tharpe, 59, and his attorneys are seeking a stay of execution, based in part on racist comments a juror made after the trial had ended.  Tharpe is black and the now-deceased juror who made the comments was white.

The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted. Rather, they are arguing that his death sentence should be overturned because of juror misconduct.  They say Tharpe's death sentence was the result of a racially biased juror who, in a post-trial interview seven years after Tharpe's conviction and sentencing, used the n-word and wondered "if black people even have souls."

A biased juror, they argue, violates Tharpe's constitutional rights to a fair trial, guaranteed by the Sixth Amendment.  They also argue that the juror lied during jury selection, concealing the fact that he knew the victim's family. Furthermore, the attorneys say Tharpe is intellectually disabled, which would make it illegal for him to be executed under federal law....

At the time of his crime, September 25, 1990, Tharpe and his wife were estranged. Prosecutors said Tharpe stopped his wife and sister-in-law in the road as they drove to work, according to court filings from the federal district court. The documents say he took his sister-in-law, Jacquelin Freeman, to the back of the vehicle and shot her with a shotgun before throwing her into a ditch and shooting her again, killing her. An autopsy showed Freeman had been shot three times.  Prosecutors alleged Tharpe then raped his wife and took her to withdraw money from a credit union, where she was able to call police for help, according to the documents. Three months later, convicted of malice murder and kidnapping, Tharpe was sentenced to death. 

Tharpe's current case centers on the post-conviction testimony of Barney Gattie, a white juror in Tharpe's trial....  Brian Kammer, Tharpe's attorney with the Georgia Resource Center, said Gattie showed in his interview that he "harbored very atrocious, racist views about black people."  Tharpe's lawyers claim Gattie, who is now deceased, used the n-word with the lawyers throughout the interview, in reference to Tharpe and other black people....

Georgia law states that juror testimony cannot be used to impeach the verdict, or render it invalid -- even if it involves racial bias, Kammer said.  At the time Gattie made the statements in question, this rule kept Tharpe's attorneys from being able to use them to prove his death sentence was the result of racial bias.  In Georgia, defendants can only receive a death sentence if the jury reaches the decision unanimously.

But Kammer and his team are relying on some recent United States Supreme Court decisions to back their motion for a stay of execution.  The central one, Kammer told CNN, is Pena-Rodriguez v Colorado.  In March, the US Supreme Court held in a 5-3 vote that laws like Georgia's are invalidated when a juror "makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," Justice Anthony Kennedy wrote in the majority opinion.

Essentially, a juror's racial bias constitutes a violation of a defendant's rights to an impartial jury guaranteed by the Sixth Amendment, and prevents defendants from being able to prove a violation of their constitutional rights.  "A constitutional rule that racial bias in the justice system must be addressed -- including, in some instances, after the verdict has been entered -- is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right," Kennedy said.

Tharpe's request for a stay was denied by the 11th Circuit Court on September 21.  A federal district court denied Tharpe's motion seeking a reopening to federal habeas proceedings on September 5, the day before the state issued a warrant for his execution.

September 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (12)

Thursday, September 21, 2017

Interesting account of gender discrimination in Wyoming alternative sentencing boot camp program

In part because women are a disproportionately small share of criminal offenders, they can experience a disproportionately large share of discriminatory treatment in the operation of criminal justice systems.  An interesting example of this reality comes from this new BuzzFeed News article headlined "Women Are Spending Years In Prison Because Wyoming Won’t Let Them Into Its All-Male Boot Camp."  The piece's subheadline provide a summary of the story: "Taylor Blanchard faced up to 10 years in prison for a crime that would’ve sent men to boot camp for six months to a year. Her fight could change the fate of countless women in Wyoming."  Here are excerpts:

For the past three months, 23-year-old Blanchard had been trying to get into [boot camp] programs.  The one in her home state, Wyoming, lasts six months to a year.  People who finish it successfully can then ask a judge to transfer them into probation, a halfway house, or placement with a family member, effectively shaving years of prison time off their sentences.

Blanchard ticked all the boxes for acceptance, except for one.  The Wyoming Department of Corrections has never housed a woman in boot camp, and it wasn’t going to start with her. Which is how Blanchard ended up in Florida, shipped out of state instead of accommodated in her own. And it’s how she became the central figure in a federal lawsuit accusing the WDOC of discriminating against female inmates.

Across the country, women in prisons and jails are often housed in different conditions than their male peers.  The criminal justice system was built for men, and prison activists say that little thought has been given to providing equal services — much less special considerations — for women, even as their population has ballooned in recent decades....

Wyoming’s boot camp, formally called the Youthful Offenders Program at the Wyoming Honor Conservation Camp, is known widely among public defenders. Open to first-time offenders under 25, the program is made up of “physical training, drill and ceremony, and a paramilitary base program focusing on appearance, life skills, and behavior,” according to the state; about half of those who enter boot camp complete the program successfully.

In an interview with BuzzFeed News, [Blanchard’s court-appointed attorney, John] LaBuda called it a “really good program,” one that teaches discipline but also allows inmates to get their GED or drug and alcohol counseling, or sometimes learn a trade. But when the state first offered the program in 1987, it only housed men; that has continued for 30 years. No attorney or judge, to the state or anyone else’s knowledge, has ever tried to place a female client into the boot camp....

In July, [Blanchard’s civil] lawyers filed suit in federal court, alleging the WDOC was violating her constitutional rights by denying her an opportunity offered to men. [John Robinson and Stephen] Pevar also had the idea to turn Blanchard’s case into a class-action lawsuit. As Pevar wrote in a July email to WDOC lawyers, “Wyoming was not only violating Ms Blanchard’s rights but has been violating the rights of women for many years now who are in her situation. We needed to do something about it.” (In 2013, the ACLU settled a similar lawsuit that opened up a Montana prison boot camp to women, though the program is now ending for both men and women.)

The lawsuit’s proposed class includes current inmates at Lusk’s women’s prison who were first-time offenders under 25 at the time of their sentencing — women who were eligible to be recommended to the Youthful Offenders Program but weren’t given the chance because of the boot camp’s men-only tradition. The proposed class also includes young Wyoming women who will face the same situation in the future. But Pevar doesn’t yet know how many women actually fall under this umbrella, if a judge does approve the lawsuit as a class action. He and Robinson have requested the WDOC reveal the names of eligible women currently at Lusk, a prison with a capacity of 293 women. WDOC has not yet provided these names. Blanchard’s attorneys are also trying to get referrals from public defenders like LaBuda currently representing eligible young women.

The class could end up being 20 people or it could be 200, Pevar said, but the goal is for each woman to get put into boot camp, either immediately or by going back in front of their sentencing judges. (The WDOC would provide each woman with an independent attorney for the latter proposed process.) “We feel that's the only fair way to vindicate the Constitutional rights of the women whose lawyers didn't ask for the recommendation,” Pevar said. No monetary award for the women is involved.

In late August, the WDOC filed a motion to dismiss the suit, arguing that women have never been denied the opportunity to go to bootcamp. It’s just that they’ve never tried to go to bootcamp, it said, until Blanchard. The corrections department also argued Blanchard hadn’t exhausted all of remedies before filing suit, and that her complaint is moot because she’s already been placed in boot camp elsewhere.

September 21, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Saturday, September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

The title of this post is the title of this notable new paper authored by Carlos Berdejó available via SSRN. Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

September 16, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, September 12, 2017

"Black Disparities in Youth Incarceration: African Americans 5X More Likely than Whites to be Held"

The title of this post is the title of this new fact sheet produced by The Sentencing Project. Here is some of the text to go along with its state-by-state charts:

Black youth were more than five times as likely to be detained or committed compared to white youth, according to data from the Department of Justice collected in October 2015 and recently released.  Racial and ethnic disparities have long-plagued juvenile justice systems nationwide, and the new data show the problem is increasing.  In 2001, black youth were four times as likely as whites to be incarcerated.

Juvenile facilities, including 1,800 residential treatment centers, detention centers, training schools, and juvenile jails and prisons held 48,043 youth as of October 2015.  Forty-four percent of these youth were African American, despite the fact that African Americans comprise only 16 percent of all youth in the United States.  African American youth are more likely to be in custody than white youth in every state but one, Hawaii.

Between 2001 and 2015, overall juvenile placements fell by 54 percent.  However, white youth placements have declined faster than black youth placements, resulting in a worsening of already significant racial disparity.

Nationally, the youth rate of incarceration was 152 per 100,000.  Black youth placement rate was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. Overall, the racial disparity between black and white youth in custody increased 22 percent since 2001.  Racial disparities grew in 37 states and decreased in 13.

In six states, African American youth are at least 10 times as likely to be held in placement as are white youth: New Jersey, Wisconsin, Montana, Delaware, Connecticut, and Massachusetts.

September 12, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Sunday, September 10, 2017

Notable data on marijuana case processing after Brooklyn DA pledge to limit prosecutions

Marijuana-cases-chart-07This WNYC piece provides some interesting data about local marijuana prosecutions in a part of NYC.  The piece's headline provides the essential highlights: "Brooklyn DA's Pledge to Reduce Marijuana Prosecutions Makes Little Difference." And here are some of the details:

In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.

Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular. “In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”

Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy. But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.

Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted. In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.

“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.

WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.

Marijuana-cases-chart-08Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this. “It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”...

Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias. “One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”

In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.

Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)

Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted. “I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."...

Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases. “This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.

But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016. “We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”

Normally I would flag a story focused on marijuana over at my Marijuana Law, Policy & Reform blog, but the case-processing and prosecutorial discretion issues raised here are surely of interest to sentencing fans.  And this post also provides an excuse to review some recent posts of note from MLP&R:

September 10, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, September 05, 2017

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, September 04, 2017

"The Racial Politics of Mass Incarceration"

The title of this post is the title of this notable paper authored by John Clegg and Adaner Usmani recently posted to SSRN.  Here is the abstract:

Dominant accounts of America's punitive turn assume that black elected officials and their constituents resisted higher levels of imprisonment and policing.  We gather new data and find little support for this view.  Panel regressions and an analysis of federally-mandated redistricting suggest that black elected officials had a punitive impact on imprisonment and policing.  We corroborate this with public opinion and legislative data. Pooling 300,000 respondents to polls between 1955 and 2014, we find that blacks became substantially more punitive over this period, and were consistently more fearful of crime than whites.

The punitive impact of black elected officials at the state and federal level was concentrated at the height of public punitiveness.  In short, the racial politics of punishment are more complex than the conventional view allows.  We find evidence that black elected officials and the black public were more likely than whites to support non-punitive policies, but conclude that they were constrained by the context in which they sought remedies from crime.

September 4, 2017 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Friday, August 25, 2017

Florida completes (historic?) execution 30 years after double murder

As reported in this local article, headlined "In a first, Florida executes a white defendant for killing a black victim," a demographically notable execution was carried out late yesterday.  Here are the details:

For the first time in 18 months, Florida carried out a death sentence, killing Mark James Asay as final punishment for two 1987 murders in Jacksonville and making Asay the first white man ever executed in the state for killing a black victim. Asay was pronounced dead at 6:22 p.m. Thursday. He was 53.

The execution began at Florida State Prison after the U.S. Supreme Court, without comment, denied Asay’s final appeal. At 6:10 p.m., a curtain lifted between the death chamber and a room for witnesses. The lighting flickered, and the air-conditioning was turned off, making for an eerie quiet. “Mr. Asay, do you have a final statement?” a guard asked. “No, sir,” he replied. “I do not.”...

Asay’s chest moved up and down, and then it stopped. The guard shook Asay’s shoulders, then stood back. Eight minutes later, a doctor emerged.

The state executed Asay because a jury found him guilty of killing Robert Lee Booker and Robert McDowell minutes apart in Jacksonville’s Springfield neighborhood. The jury recommended he be put to death by a vote of 9 to 3. The U.S. Supreme Court later ruled that death sentencing system unconstitutional, and though the Florida Supreme Court now requires unanimous jury decisions, the new standard applies only to cases going back to 2002.

Asay’s attorneys said the best argument for stopping the execution would have been to say that 2002 is an arbitrary date, and because the death sentence vote wasn’t unanimous, he should be resentenced. Asay refused to let them make that argument, attorney Marty McClain said, instead asking them to argue he wasn’t guilty of murdering Booker, the black man.

When Asay was arrested, his arms bore white supremacist tattoos, and witnesses said he referred to one of the victims by the N-word. Frank Booker, Robert Booker’s brother, said Thursday afternoon that “we’ve been waiting for this since 1987, and that’s a long time. I feel a lot of pressure and anxiety will be off me, and I’ll be able to continue in life, I think, a lot more peaceful because this was something that touched a lot of us really, really deep. I know he feels sorry now, but he should’ve thought about that in ’87 when he did what he did. He did it. All the evidence pointed that way.”

Asay’s brother and another friend who were with him the night of the killings testified that the three were drinking and looking for sex. While his brother was talking to Booker, Asay used racial slurs. He then shot Booker in the stomach and fled. The men then hired McDowell, who was dressed as a woman and using the name Renee Torres, to perform oral sex, according to their testimony. Asay then shot and killed McDowell. One of the witnesses said Asay killed McDowell because he felt ripped off. A jailhouse informant later said Asay referred to McDowell using a derogatory word for gay men.

Asay admitted this week to News4Jax that he killed McDowell, who was white. The race of Asay’s victims matters because a racist motive can help prove a murder is cruel, calculated and premeditated, and worthy of execution.

The execution of Asay included the use of two drugs never before used in Florida: potassium acetate, which was used by accident in an Oklahoma execution in 2015, and etomidate, which had never been used anywhere for an execution. States that still carry out the death penalty have struggled to acquire the necessary drugs for lethal injection and have started changing their cocktails. Asay’s lawyers argued that the new injection mixture would violate his constitutional right to be free of cruel and unusual punishment. On Thursday afternoon, a corrections official handed out packets about how the new injection process would work, but she wouldn’t answer questions about how the state chose the drugs.

Since Asay’s trial in 1988, Duval County has led the state in handing down death sentences, with Assistant State Attorney Bernie de la Rionda getting more death sentences than almost any prosecutor in the country. Asay’s execution was the first of de la Rionda’s death sentences to be carried out.

As hinted in the title of this post, I am not sure I want to use the label "historic" to describe the fact that a southern state has carried out the execution of a white murderer who had a black victim. At the same time, I do think it worth noting that this murderer was actually sentenced to death for his crime way back in the 1980s, and thus this execution might be deemed historic simply because it took three decades for Florida to be able to carry out his sentence. Also historic, in some sense, is an execution based on a a non-unanimous jury death recommendation, which will not be possible any longer.

August 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (11)

Wednesday, August 16, 2017

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Friday, August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Sunday, July 23, 2017

Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!

This local story out of Tennessee is hard to believe, but it does not appear to be fake news.  The story is headlined "White County Inmates Given Reduced Jail Time If They Get Vasectomy," and here are excerpts:

Inmates in White County, Tennessee have been given credit for their jail time if they voluntarily agree to have a vasectomy or birth control implant, a popular new program that is being called “unconstitutional” by the ACLU.

On May 15, 2017 General Sessions Judge Sam Benningfield signed a standing order that allows inmates to receive 30 days credit toward jail time if they undergo a birth control procedure. Women who volunteer to participate in the program are given a free Nexplanon implant in their arm, the implant helps prevent pregnancies for up to four years. Men who volunteer to participate are given a vasectomy, free of charge, by the Tennessee Department of Health.

County officials said that since the program began a few months ago 32 women have gotten the Nexplananon implant and 38 men were waiting to have the vasectomy procedure performed.

Judge Benningfield told NewsChannel 5 that he was trying to break a vicious cycle of repeat offenders who constantly come into his courtroom on drug related charges, subsequently can’t afford child support and have trouble finding jobs. “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves,” Judge Benningfield said in an interview.

First elected in 1998, Judge Benningfield decided to implement the program after speaking with officials at the Tennessee Department of Health. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win, win,” he added.

Inmates in the White County jail were also given two days credit toward their jail sentence if they complete a State of Tennessee, Department of Health Neonatal Syndrome Education Program. The class aimed to educate those who are incarcerated about the dangers of having children while under the influence of drugs. “Hopefully while they’re staying here we rehabilitate them so they never come back,” the judge said.

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal. “It’s concerning to me, my office doesn’t support this order,” Dunaway said....

On Wednesday, the ACLU released this statement on the program: "Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

There are many thing so very remarkable about this story, but I am especially struck by how many jail inmates are willing to undergo a life-changing procedure simply to avoid 30 days in jail. Anyone who doubts the coercive pressures of even a short jail stay (say because of an inability to make bail) should be shown this story.

July 23, 2017 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19)

Wednesday, July 19, 2017

Bipartisan discussion of female incarceration issues at "Women Unshackled" event

My twitter feed was full of reports and links to a big criminal justice reform event yesterday which was given the title "Women Unshackled."  This Washington Post article, headlined "Officials from both parties say too many women are incarcerated for low-level crimes," reports on the event, and its coverage starts this way:

Democratic and Republic officials at a conference Tuesday said too many women are being incarcerated for nonviolent offenses, a troubling trend both groups said they were committed to tackling.

From Democratic Sen. Kamala Harris (Calif.) and Rep. Sheila Jackson Lee (Tex.) to Republican Rep. Mia Love (Utah) and Oklahoma Gov. Mary Fallin, there was bipartisan agreement that most of the women in jails and prison would be better served by drug rehabilitation and mental health services, rather than harsher sentences. They noted that most women in the criminal-justice system are victims of domestic abuse or sexual violence. And because most incarcerated women have small children, locking them away can destroy an already fragile family.

The discussion came during a day-long conference called “Women Unshackled,” presented by the Justice Action Network and sponsored by the Brennan Center for Justice at the New York University School of Law, the Coalition for Public Safety and Google.

Some additional coverage of the issues and individuals involved in this event can be found in these recent press pieces:

July 19, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, June 30, 2017

"Examining Racial Disparities in Criminal Case Outcomes among Indigent Defendants in San Francisco"

The title of this post is the title of this interesting big new report published by the Quattrone Center for the Fair Administration of Justice.  This Crime Report piece about the report provides this overview of its findings:

An individual’s race and ethnic background determine how he is treated at the “front end” of the criminal justice system, according to a study published this week.  The study, which, focused on poor African-American, Latino and white defendants (all male) in San Francisco, found what it called “systematic differences” in outcomes during the preliminary steps of an individual’s involvement in the justice system, from arrest and booking to the pretrial phase.

“Defendants of color are more likely to be held in custody during their cases, which tend to take longer than the cases of White defendants,” said the study, published by the Quattrone Center for the Fair Administration of Justice.  “Their felony charges are less likely to be reduced, and misdemeanor charges (are) more likely to be increased during the plea bargaining process, meaning that they are convicted of more serious crimes than similarly situated White defendants.”

The study’s conclusions added a troubling dimension to existing research on racial disparities in the U.S. justice system which has largely concentrated on “final case outcomes,” such as conviction, incarceration and sentence length.  In California, for example, African-American men are incarcerated at 10 times the incarceration rate of white men, five times the incarceration rate of Latino men, and 100 times the incarceration rate of Asian men, according to figures cited by the study.

But the study authors’ examination of more than 10,000 records of cases between 2011 and 2014 provided by the San Francisco Public Defender’s Office challenged the notion that the difference is explained simply by the fact that African-Americans or Hispanics commit more crimes than other groups.  Their findings suggest that whites are in fact treated more leniently when they are apprehended during the early stages of their involvement in the justice system, thus making them less likely to end up with prison terms in the first place.

The full report linked above runs more than 100 pages, but the Quattrone Center webisite has this shorter summary version.

June 30, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Wednesday, June 28, 2017

"Cashing in on Convicts: Privatization, Punishment, and the People"

The title of this post is the title of this notable new paper by Laura Appleman available via SSRN. Here is the abstract:

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities.  This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society.  Criminal justice privatization severs an essential link between the people and criminal punishment.  When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability.

This Article shows what we lose when we allow private, for-profit entities to take on the traditional community function of imposing and regulating punishment.  By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system. 

June 28, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, June 21, 2017

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 08, 2017

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, May 26, 2017

US Sentencing Commission releases report on "Youthful Offenders in the Federal System"

Cover_youthful-offendersThe US Sentencing Commission released this notable new report today titled simply "Youthful Offenders in the Federal System." Here is the report's introduction and "key findings" from its first two pages:

Introduction

Although youthful offenders account for about 18 percent of all federal offenders sentenced between fiscal years 2010 and 2015, there is little current information published about them.  In this publication, the United States Sentencing Commission (“the Commission”) presents information about youthful offenders, who for purposes of this report are defined as persons age 25 or younger at the time they are sentenced in the federal system.

Recent studies on brain development and age, coupled with recent Supreme Court decisions recognizing differences in offender culpability due to age, have led some policymakers to reconsider how youthful offenders should be punished.  This report reviews those studies and provides an overview of youthful federal offenders, including their demographic characteristics, what type of offenses they were sentenced for, how they were sentenced, and the extent of their criminal histories.

The report also discusses the intersection of neuroscience and law, and how this intersection has influenced the treatment of youthful offenders in the criminal justice system. The Commission is releasing this report as part of its review of the sentencing of youthful offenders.  In June 2016, the Commission’s Tribal Issues Advisory Group (TIAG) issued a report that proposed several guideline and policy changes relating to youthful offenders, including departure provisions and alternatives to incarceration.

Because many of the TIAG recommendations on this topic apply to all youthful offenders, and not just Native Americans, the Commission voted to study the treatment of youthful offenders as a policy priority for the 2016-2017 amendment cycle.

The key findings in this report are that:

• There were 86,309 offenders (18.0% of the federal offender population) age 25 or younger sentenced in the federal system between 2010 and 2015.

• The majority (57.8%) of youthful offenders are Hispanic.

• There were very few youthful offenders under the age of 18 sentenced in the federal system (52 between 2010 and 2015).

• Almost 92 percent of offenses committed by youthful offenders were nonviolent offenses.

• Similar to the overall federal offender population (or non-youthful offenders group) the most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%).

• The average sentence for youthful offenders was 34.9 months.

• Youthful offenders were more likely to be sentenced within the guidelines range than non-youthful offenders (56.1% compared to 50.1%).

• Youthful offenders recidivated at a much higher rate than their older counterparts — about 67 percent versus 41 percent.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (4)

Tuesday, May 23, 2017

"The Effects of Racial Profiling, Taste-Based Discrimination, and Enforcer Liability on Crime"

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

The literature contains ambiguous findings as to whether statistical discrimination, e.g. in the form of racial profiling, causes a reduction in deterrence.  These analyses, however, assume that enforcers' incentives are exogenously fixed.  This article demonstrates that when the costs and benefits faced by officers in enforcing the law are endogenously determined, statistical discrimination as well as taste-based discrimination lead to an increase in criminal activity.  Moreover, the negative effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination.

This suggests, contrary to the impression created by the existing literature, that statistical discrimination is not only harmful, but, may be even more detrimental than taste-based discrimination.  Thus, for purposes of maximizing deterrence, the recent focus in empirical research on identifying taste-based discrimination as opposed to statistical discrimination may be misplaced.  A superior approach may be to identify whether any type of racial discrimination takes place in the enforcement of laws, and to provide enforcers with incentives to minimize the impact of their discriminatory behavior.

May 23, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6)

Sunday, April 30, 2017

"Purpose-Focused Sentencing: How Reforming Punishment Can Transform Policing"

The title of this post is the title of this essay authored by Jelani Jefferson Exum recently posted on SSRN. Here is the abstract:

Today’s discussions about police reform have focused on changing police training and procedures.  As accounts of deaths of African-Americans at the hands of police officers have played out in the news and social media, demands for racial justice in policing have become more prevalent.  To end what I have coined as “the Death Penalty on the Street,” there have been calls for diversity training, training on non-lethal force, and, of course, community policing.  While it is perfectly rational for the response to excessive police force to be a focus on changing policing methods, such reforms will only have limited success as long as attitudes about black criminality remain the same.  Though we would like to hold them to a higher standard, police officers are merely human, so they carry with them the same biases and prejudices that any of us can hold.  Studies have shown that, in general, Americans are -- regardless of our race -- biased against blacks, especially young black men.  African Americans are more likely seen as criminals, and most of us overestimate the amount of crime attributable to the black population.  Therefore, in order to truly address the problem of racial injustice in policing, we must address the racial biases held by our society that play out in our criminal justice system.  Though perhaps not the obvious place for this revolution to start, sentencing reform has the potential to change the face of the punishment in our country, thus transforming the (usually black) face of whom we see as deserving of punishment by the police and the courts.

This Essay proposes “purpose-focused sentencing” as a means of remedying the over-incarceration of blacks, thereby combatting attitudes about crime and black criminality, and in turn, affecting how police see and treat blacks.  The goal is to reduce the racial disparity in incarceration, not solely through an overall lessened reliance on prisons and jails, but also by assessing and identifying appropriate sentences to fulfill criminal justice purposes.  Once those purposes -- deterrence, rehabilitation, incapacitation, and retribution -- are identified and assessed, there will not be room to justify disparities in sentencing attributable only to the race of the defendant.  All sentences, regardless of the peculiarities of an individual defendant, must be tailored to a specific result, rather than imposed at the whim of a particular judge or in accordance with legislation that has no basis in an identified sentencing goal.  As a result, we will see prisons and jails being used much more exclusively (to the extent that incarceration is used at all) for violent, repeat felons, which statistics tell us are not where our racial disparities lie today.  When punishment is more closely aligned with what the offender has done, and what our goals of punishments are given that behavior, we can begin to combat the stereotype that the dangerous criminal is most likely black.

Once sentencing no longer feeds into the heightened public view of blacks as criminals, the spillover effect will be that the new wave of police officers will not see blacks this way either.  And if they do, society certainly will not view this biased police violence against blacks as reasonable.  This Essay offers a solution that will take years, if not generations, to implement; and it will perhaps take even longer for it to completely transform the face of policing.  However, the proposal is a long-term approach that will immediately begin to move criminal justice in the right direction and encourage honest conversations about what we are trying to do in our system and how our current methods of punishment are only perpetuating racial injustice.

April 30, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Should an offender's citizenship status impact prosecutorial charging decisions and how?

The question in the title of this post is prompted in part by a comment made by Attorney General Jeff Sessions in this speech given on Friday and in part by this news article out of Baltimore brought to my attention by a commentor.  Here is part of the speech from AG Sessions focusing on the how some prosecutors may now be concerning themselves with citizen status in charging:

We have also taken steps to end the lawless practices of so-called “sanctuary” jurisdictions, which make our country less safe.  I understand there are those who disagree.  But the American people rightly demand a lawful system of immigration. Congress has established a lawful system of immigration.

The Bureau of Justice Statistics just released a report showing that 42 percent of defendants charged in U.S. district court were non-U.S. citizens.  And according to the U.S. Sentencing Commission, in 2013, 48 percent of all deported aliens who were convicted for coming back to the United States illegally were also convicted of a non-immigration related crime.

And yet, I regret to say that we’ve seen district attorneys openly brag about not charging cases appropriately -- giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities.  They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen.  It baffles me.

Regardless, no jurisdiction has a right to violate federal law, especially when that violation leads to the death of innocent Americans, like Kate Steinle.  As the President has made clear, our system is a system of laws, and we will be the Administration that ends the rampant immigration illegality.

And here is part of the Baltimore press article highlighting what AG Sessions seems to be talking about:

The Baltimore State's Attorney's Office has instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration.

Chief Deputy State's Attorney Michael Schatzow, in a memo sent to all staff Thursday and obtained by The Baltimore Sun, wrote that the Justice Department's deportation efforts "have increased the potential collateral consequences to certain immigrants of minor, non-violent criminal conduct." "In considering the appropriate disposition of a minor, non-violent criminal case, please be certain to consider those potential consequences to the victim, witnesses, and the defendant," Schatzow wrote....

The Homeland Security Department issued memos in February saying any immigrant in the country illegally who is charged or convicted of any offense, or even suspected of a crime, will now be an enforcement priority.

Elizabeth Alex, a Baltimore regional director for CASA de Maryland, said immigrants and their relatives are afraid to engage in the court process, and Baltimore prosecutors are right to include immigration status as part of their consideration in how to handle a case. "Prosecutorial discretion exists in all kinds of cases, and it's more education to [prosecutors] about the multiple factors that they should take into consideration as they proceed," she said. "The consequences are different today than they were a year ago."

U.S. Rep. Andy Harris, the lone Republican in Maryland's congressional delegation, said it is "a real shame that the State Attorney's office is unwilling to enforce the law against illegal aliens who commit crimes in the United States."

"A vast majority of Americans believe that illegal aliens who commit crimes while here in the U.S. should bear the full brunt of the law, and be deported," Harris said through a spokesperson.

The Justice Department declined to comment on the Baltimore memo. But in remarks Friday on Long Island, Sessions decried district attorneys who he said "openly brag about not charging cases appropriately -- giving special treatment to illegal aliens to ensure these criminal aliens aren't deported from their communities."... The comments appeared to be in response to the acting district attorney in Brooklyn, N.Y., who earlier this week issued similar instruction to prosecutors there.

"We must ensure that a conviction, especially for a minor offense, does not lead to unintended and severe consequences like deportation, which can be unfair, tear families apart and destabilize our communities and businesses," Acting District Attorney Eric Gonzalez said in an announcement Monday. Gonzalez went a step further, hiring two immigration attorneys to train staff on immigration issues and to advise prosecutors when making plea offers and sentencing recommendations "in an effort to avoid disproportionate collateral consequences."

Mayor Catherine E. Pugh, who has sought to reassure immigrants that Baltimore is a "welcoming city" that will not check for proof of citizenship, declined to comment on the State's Attorney's Office memo. "Mayor Pugh will leave prosecution strategies and tactics to the State's Attorney and her staff," spokesman Anthony McCarthy said in an e-mail....

Police Commissioner Kevin Davis has expressed concern about immigrants not reporting crimes or cooperating with investigations because they fear repercussions related to their status, and has attended community meetings stressing that police won't make immigration checks.  Schatzow, in the State's Attorney's Office memo, noted such concerns, saying fear of being deported could "impair our effectiveness in combating violent crimes and criminals."

Notably, it has long been common in many settings for defense attorneys to seek and prosecutors to seriously consider downgrading certain charges from felonies to misdemeanors for some immigrant offenders in order to keep them from being subject to automatic deportation under applicable federal statutes.  I am uncertain whether AG Sessions is baffled by this practice, but I am certain that this practice is not confined to just a few jurisdictions.

That said, I do think the equation feels a bit different if and when we focus on foregoing certain criminal charges altogether for a certain class of offender because of the collateral consequences of deportation that could follow from any charges.  Though I would be troubled by deportation always serving as the de facto punishment for, say, low-level marijuana possession, I also would be concerned about the deterrent impact (as well as the optics) of policies and practices that make it easier for illegal immigrant offenders to avoid charges for certain classes of criminal wrong-doing.  Stated somewhat differently, given that citizens as well as non-citizens can and often do suffer an array of profound collateral consequences even when charged with minor, non-violent crimes, I would like to see prosecutors in Baltimore and everywhere else regularly instructed to consider "potential collateral consequences" for all offenders in all setting when making charging decisions.

April 30, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Thursday, April 27, 2017

"Criminal Law as Family Law"

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

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life.  This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.  Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice.

This Article explores the gap in literature in two respects.  First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families.  Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families.  These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote.  The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

April 27, 2017 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Wednesday, April 19, 2017

Highlighting books that suggest how the "age of mass incarceration may actually be abating"

The quoted portion of the title of this post from the headline of this new piece by Chuck Lane in the Washington Post.  The piece serves as a kind of mini-review of the two most important recent books on mass incarceration, John Pfaff's "Locked In" and James Forman's "Locking Up Our Own".  Here are excerpts: 

“Locking Up Our Own,” a remarkable new book by Yale Law School professor and former D.C. public defender James Forman Jr., tells the poignant but neglected story of how newly enfranchised black communities coped with this dilemma as a crime wave swept through urban America in the 1980s and 1990s, driving the murder victimization rate among blacks to an astonishing high of 39.4 per 100,000 population in 1991.

African American mayors, police and prosecutors responded to the pleas of beleaguered constituents with rhetoric, and policy, that were no less “tough on crime” than that of their white counterparts.  Black leaders often framed crime-fighting as an issue of salvaging the civil rights revolution.  “What would Dr. King say?” about the violence plaguing predominantly black cities, they would ask rhetorically — and then crack down on mostly youthful offenders, which inevitably involved “locking up our own.”...

This was an era, Forman reminds us, during which activist-attorney Johnnie Cochran regularly attended rallies against drug dealing in Los Angeles, calling for PCP dealers to be punished “harshly,” and Eric Holder, then the District’s top prosecutor, supported aggressive, often pretextual police stops and searches of cars in predominantly black sections of the city, in a desperate effort to get guns off the street....

He adds historical nuance to the story of “mass incarceration” told in Ohio State University law professor Michelle Alexander’s influential 2010 book “The New Jim Crow.”  This makes Forman’s book the second important corrective this year to Alexander’s.  The first, “Locked In” by Fordham University law professor John Pfaff, deployed statistical evidence to show that the United States’ highest-in-the-industrialized world incarceration rate did not result from the war on drugs, contrary to a theme of Alexander’s book that has been repeated so often Pfaff dubs it “the Standard Story.”

Even if everyone in state and federal prison on a drug conviction were released tomorrow, the U.S. incarceration rate would still be about quadruple what it was in 1970.  That is because, Pfaff demonstrates, most people in prison are there for violent crimes such as homicide or aggravated assault.

Punishment for these offenses drove incarceration rates higher, Pfaff shows, but not, as is often supposed, because of laws imposing harsh mandatory- minimum sentences.  The key factor was discretionary prosecutorial decisions; at least from the early 1990s on, prosecutors in the nation’s 3,000-plus counties charged arrestees with felonies at a higher rate even as the crime rate itself declined.  Ultimately, more punitive exercise of prosecutorial discretion fed a steady net influx of convicts to state prisons....

The most recent evidence indicates that the age of mass incarceration is abating; it has been, oddly enough, since just prior to the publication of “The New Jim Crow.”

The Pew Charitable Trusts has reported, based on Justice Department data, that the U.S. incarceration rate declined from a peak of 1 in 100 adults in 2007 to 1 in 115 in 2015. Keith Humphreys, of Stanford University, has shown that racial disparities, though still large, may be diminishing.  The incarceration rate for blacks fell steadily between 2000 and 2014, while that of whites rose slightly.

The challenge now is to accelerate the de-incarceration trend while sustaining low levels of crime.  A troubling uptick in urban homicide last year may have helped elect President Donald “American Carnage” Trump.  Certainly his harshest, most racially tinged anti-crime rhetoric both stimulated fear and exploited it. His attorney general, Jeff Sessions, has called emphasized punishing crime rather than consent decrees against allegedly abusive local police.

Under the circumstances, Forman and Pfaff’s emphasis on local politics, and county- and state-level prosecutorial discretion, is paradoxically hopeful.  Federal policy makes headlines, but in the vast majority of cases, criminal justice takes place at the grass roots.  And in recent years, that is the level at which the most promising reform efforts have occurred.  Those efforts can and should continue, whatever might happen next in Washington.

I really like this commentary's use of the term "abating" to describe what the current decade has wrought with respect to incarceration levels. The Merriam-Webster dictionary defines abate as "to decrease in force or intensity," and that is what we are experiencing with incarceration in modern years in the United States. Incarceration continues on a mass scale in the US, but the force and intensity of our commitment to using ever more incarceration in response to social disorder has decreased.

April 19, 2017 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, April 13, 2017

"Four Decades and Counting: The Continued Failure of the War on Drugs"

The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:

Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods.  While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last.  The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.

Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.

We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels.  Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan.  While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.

We conclude that prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad.  Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.

April 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4)

Monday, April 10, 2017

"Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend"

The title of this post is the title of this new paper authored by Elena Kantorowicz-Reznichenko now available via SSRN. Here is the abstract:

Fines have numerous advantages as a criminal sanction.  They impose minor costs on the society and compliance leads to an increase of the state revenue.  Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes.  Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders.  As a result, fines are imposed only for minor offenses.

On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction.  This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender.  Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions.  Day-fines can offer a partial solution for the American prison-overcrowding problem.

Therefore, the aim of this article is twofold.  First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe.  Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.

April 10, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender | Permalink | Comments (4)

Sunday, April 09, 2017

"Mass incarceration, public health, and widening inequality in the USA"

The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang.  Here is the summary:

In this Series paper, we examine how mass incarceration shapes inequality in health.  The USA is the world leader in incarceration, which disproportionately affects black populations.  Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear.  Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries.  Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.

The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:

For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.

When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study.  Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”

But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail.  The reason?  The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise.  What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care.  Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not.  Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.

The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me.  (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)

April 9, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Monday, April 03, 2017

"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"

The title of this post is the title of this notable article just published in Justice Quarterly authored by Christi Metcalfe and Ted Chiricos.  Here is its abstract:

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.  Still, few studies have considered the influence of defendant race and race/sex within the plea process.  The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.

The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.  Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

April 3, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Monday, March 20, 2017

Continued consternation concerning capital charging decision in central Florida

I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney.  But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:

Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.

At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.

Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.

More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.

In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”

On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”

Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.

There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:

The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.

Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.

March 20, 2017 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (25)

Wednesday, March 15, 2017

Noting how prisons serve as a kind of public works program in rural areas

This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:

While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system.  As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663.  Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.

The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas.  Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.

People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers.  Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....

Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up.  My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....

It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.

March 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, March 13, 2017

A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"

The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:

The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women.  The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.

Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.

Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....

Women in the federal system are more likely to be incarcerated for a nonviolent offense.  Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons.  Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society.  We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....

While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever.  As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.

We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison.  As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters.  For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.

Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform.  This latest commentary suggests that inkling is proving accurate.

March 13, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Monday, March 06, 2017

Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?

The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here).  Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:

[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.  This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....

A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts."  (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.

March 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Sunday, March 05, 2017

"Women in Prison: Should they be treated differently from men?"

The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:

The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men.  Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say.  But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women.  They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.

Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system.  For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse.  The justice system, women's advocates say, needs to think creatively about how to help female prisoners.  Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.

March 5, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)