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 (3)

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 (2)

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)

Deep dive into litigation over Chicago “Stash House Stings”

Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past.  The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:

For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.

Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.

Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....

Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...

According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.

They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.

In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.

In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....

The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.

The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."

Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....

As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."

In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....

The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."

March 5, 2017 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, February 22, 2017

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Wednesday, February 15, 2017

"Emotional Judges and Unlucky Juveniles"

The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.

The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.

These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

February 15, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Sunday, February 12, 2017

Is big data "reinforcing racial bias in the criminal justice system"?

The question in this post is prompted by this Washington Post commentary headlined "Big data may be reinforcing racial bias in the criminal justice system." The piece is authored by Laurel Eckhouse, a researcher with the Human Rights Data Analysis Group’s Policing Project at UC Berkeley, and here are excerpts:

Big data has expanded to the criminal justice system. In Los Angeles, police use computerized “predictive policing” to anticipate crimes and allocate officers. In Fort Lauderdale, Fla., machine-learning algorithms are used to set bond amounts. In states across the country, data-driven estimates of the risk of recidivism are being used to set jail sentences.

Advocates say these data-driven tools remove human bias from the system, making it more fair as well as more effective. But even as they have become widespread, we have little information about exactly how they work. Few of the organizations producing them have released the data and algorithms they use to determine risk.

We need to know more, because it’s clear that such systems face a fundamental problem: The data they rely on are collected by a criminal justice system in which race makes a big difference in the probability of arrest — even for people who behave identically. Inputs derived from biased policing will inevitably make black and Latino defendants look riskier than white defendants to a computer. As a result, data-driven decision-making risks exacerbating, rather than eliminating, racial bias in criminal justice....

We know that a black person and a white person are not equally likely to be stopped by police: Evidence on New York’s stop-and-frisk policy, investigatory stops, vehicle searches and drug arrests show that black and Latino civilians are more likely to be stopped, searched and arrested than whites. In 2012, a white attorney spent days trying to get himself arrested in Brooklyn for carrying graffiti stencils and spray paint, a Class B misdemeanor. Even when police saw him tagging the City Hall gateposts, they sped past him, ignoring a crime for which 3,598 people were arrested by the New York Police Department the following year.

Before adopting risk-assessment tools in the judicial decision-making process, jurisdictions should demand that any tool being implemented undergo a thorough and independent peer-review process. We need more transparency and better data to learn whether these risk assessments have disparate impacts on defendants of different races. Foundations and organizations developing risk-assessment tools should be willing to release the data used to build these tools to researchers to evaluate their techniques for internal racial bias and problems of statistical interpretation. Even better, with multiple sources of data, researchers could identify biases in data generated by the criminal justice system before the data is used to make decisions about liberty. Unfortunately, producers of risk-assessment tools — even nonprofit organizations — have not voluntarily released anonymized data and computational details to other researchers, as is now standard in quantitative social science research.

For these tools to make racially unbiased predictions, they must use racially unbiased data. We cannot trust the current risk-assessment tools to make important decisions about our neighbors’ liberty unless we believe — contrary to social science research — that data on arrests offer an accurate and unbiased representation of behavior. Rather than telling us something new, these tools risk laundering bias: using biased history to predict a biased future.

February 12, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Tuesday, January 24, 2017

"Orange is the New Black: Inequality in America's Criminal Justice System"

The title of this post is the title of this great event taking place on my own Ohio State University campus tomorrow afternoon. And that title should cue most everyone into the reality that the event is a speech to be delivered by Piper Kerman. Here is how the event is being described:

Bringing her message to Ohio State in this free talk and Q&A presented as part the university’s COMPAS program, Piper Kerman will speak about her own experiences in prison and shed light on the wide-ranging collateral damage of America’s criminal justice practices—particularly on family stability, women, children, and minorities.

Piper Kerman is the author of Orange Is the New Black: My Year in a Women’s Prison (Spiegel & Grau), a bestselling book that has been adapted by Jenji Kohan into an Emmy and Peabody Award–winning original series for Netflix. A hit TV show wasn’t Piper Kerman’s goal when she wrote her memoir about her 13 months in the Danbury Federal Correctional Institution, but its success has led to a life of advocacy for criminal justice reform.

The United States has the highest incarceration rate in the world. There are 2.2 million people in the nation’s prisons and jails—a 500% increase over the last 40 years disproportionately affecting people of color. During this time the number of incarcerated women has increased by more than 700%. Though many more men are imprisoned than women, the rate of growth for female imprisonment has outpaced men by more than 50% between 1980 and 2014.  According to sentencingproject.org, there are now 1.2 million women under the supervision of the criminal justice system.

Kerman is the recipient of Harvard's Humanist Heroine Award (2015), as well as the Constitutional Commentary Award from The Constitution Project (2014) and John Jay College's Justice Trailblazer Award (2014). She has testified before Congressional Committees and been invited to present on reentry issues at The White House. She has lectured to hundreds of audiences across the US ranging from justice reform groups, corrections professionals, universities, policymakers, and business leadership events.

A series of year-long conversations on morality, politics, and society, Ohio State’s COMPAS program hopes to promote sustained reflection on the ethical challenges that unify various projects within the university’s Discovery Themes Initiative.

January 24, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, January 05, 2017

Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"

I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama.  In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig.  In substance, the article's introduction provides this overview: 

Part I details the current criminal justice landscape and emphasizes the urgent need for reform.  It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities.  All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.  We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year.  In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level.  Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity.  As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry.  And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners.  Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system.  While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term.  These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).

January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, December 21, 2016

Detailing how global financier George Soros has been funding efforts to take out local prosecutors

161215_soros-map_v1I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:

Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.

Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.

Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”

The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.

Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:

Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.

David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”

Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.

The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...

Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....

Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.

As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.

The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”

In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.

“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...

Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.

Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”

She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said

Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.

Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”

December 21, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, December 20, 2016

"Free the Vote: Unlocking Democracy in the Cells and on the Streets"

The title of this post is the title of this new short publication from the NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project.  This webpage review the publication's contents and mission:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project have issued Free the Vote: Unlocking Democracy in the Cells and on the Streets, reporting on the racially discriminatory and ever-growing problem of felony disenfranchisement. The denial or abridgement of the right to vote for 6.1 million people with felony criminal convictions is a stain on our democracy.

The millions of Americans who are currently prevented from voting due to felony convictions are more than twice the difference of the popular vote in the contentious 2016 presidential election. Particularly striking is that one in 13 Black Americans of voting age is disenfranchised because of a felony conviction—a rate four times greater than non-Black Americans.

The issue is compounded by the fact that often, for redistricting purposes, incarcerated people are counted as residents of largely white rural areas where prisons are predominately located (i.e., prison-based gerrymandering). Thus, Black urban communities, from which the incarcerated population disproportionately comes, lose the critical voices of persons with felony convictions, who not only are denied a fundamental stake in the democratic process, but also who could provide insight into issues of criminal justice reform, employment, and educational opportunities.

“Felony disenfranchisement laws are shamefully nothing new,” said Leah Aden, Senior Counsel at LDF. “In the era following slavery disenfranchisement laws were tailored to limit the political power of newly-freed Black people. These racially discriminatory laws gained steam in recent decades as the failed ‘war on drugs’ and “tough on crime” policies incarcerated millions of Black and Latino Americans, continuing to weaken the voting power of communities of color.”

“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” says Marc Mauer, Executive Director of The Sentencing Project. “By extending the right to vote to people in prison and with criminal records, we can both build a more inclusive democracy and make our communities safer.”

Among its findings, Free the Vote highlights:

◾ The impact of felony disenfranchisement laws on Black voting strength at the state level. In Florida, for example, more people with felony convictions are disenfranchised than in any other state, with Black disenfranchisement rates exceeding a fifth (21%) of the adult Black voting age population. Similar data comes out of other states such as Kentucky, Tennessee, and Virginia.

◾ Prison-based gerrymandering exacerbates the negative effects of felony disenfranchisement. In the city of Anamosa, Iowa, a councilman from a prison community was elected to office from a ward which, per the Census, had almost 1,400 residents—about the same as the other three wards in town. But 1,300 of these “residents” were prisoners in the Anamosa State Penitentiary. Once those prisoners were subtracted, the ward had fewer than 60 actual residents.

◾ Only Maine and Vermont do not restrict voting based on a felony conviction. Both states allow individuals to vote from prison via absentee ballot. Recently, there have been successful efforts to reform felony disenfranchisement policies in Maryland, Virginia, and California.

◾ Following the historic and substantial participation of people of color in the 2008 and 2012 elections, felony disenfranchisement laws that curb voting power remain a barrier to expanding America’s voting population. These laws discourage future generations from exercising the learned behavior of voting and receiving the benefits of having their voices reflected in the political process.

LDF and The Sentencing Project aim to not only ameliorate felony disfranchisement laws, but also to eradicate them. Together, we can free the vote for people who have been made vulnerable by harmful and discriminatory laws and in turn, strengthen our collective democracy.

December 20, 2016 in Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, December 19, 2016

"Mass incarceration and children’s outcomes: Criminal justice policy is education policy"

The title of this post is the title of this intriguing report released late last week by the Economic Policy Institute (EPI).  This press release from EPI provide a kind of report summary under the heading "Mass incarceration contributes significantly to the racial achievement gap," and here is its text:

In Mass incarceration and children’s outcomes, EPI research associates Leila Morsy and Richard Rothstein outline the connections between mass incarceration and racial achievement gaps. There is overwhelming evidence that having an incarcerated parent leads to an array of cognitive and noncognitive outcomes known to affect children’s performance in school. Independent of other social and economic characteristics, children of incarcerated parents are more likely to misbehave in school, drop out of school, develop learning disabilities, experience homelessness, or suffer from conditions such as migraines, asthma, high cholesterol, depression, anxiety, and post-traumatic stress disorder.

“Simply put, criminal justice policy is education policy,” said Morsy. “It is impossible to disentangle the racial achievement gap from the extraordinary rise in incarceration in the United States. Education policymakers, educators, and advocates should pay greater attention to the mass incarceration of young African Americans.”

African American children are six times as likely as white children to have a parent who is or has been incarcerated. One-in-four African American students have a parent who is or has been incarcerated, and as many as one-in-ten have a parent who is currently incarcerated. Because African American children are disproportionately likely to have had an incarcerated parent, the authors argue, the United States’ history of mass incarceration has contributed significantly to gaps in achievement between African American and white students.

“Despite increased national interest in criminal justice reform, President-elect Trump has promised to move in the opposite direction by advocating for a nationwide “stop-and-frisk” program,” said Rothstein. “While the chance of reform on a federal level may have stalled, advocates should look for opportunities for reform at the state and local levels, because many more parents are incarcerated in state than in federal prisons.”

The authors advocate for a number of policies to address this problem by reducing incarceration, including eliminating disparities between minimum sentences for possession of crack versus powder cocaine, repealing mandatory minimum sentences for minor drug offenses and other nonviolent crimes, and increasing funding for social, educational, and employment programs for released offenders.

December 19, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Thursday, December 08, 2016

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11)

Wednesday, December 07, 2016

Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform

NA-CM623_SESSIO_16U_20161206163606The Wall Street Journal has this new article flagging the sentencing reform work of Senator Jeff Sessions, who is Prez-Elect Donald Trump's pick to serve as our next Attorney General. The article is headlined "Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing: Attorney-general pick, targeted for his record on race, advocated for parity in cocaine punishments." Here are excerpts:

Civil-rights groups are set to battle Sen. Jeff Sessions’s nomination as attorney general over what they see as his disturbing record on racial equality. But there is one chapter in the former prosecutor’s career where they share a sliver of common ground.

Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime. There has been a growing consensus that harsh penalties for crack, typically bought and sold on city streets, have taken an undue toll on African-American communities, while black leaders have long viewed the disparity as little short of racist.

To Mr. Sessions’s critics, the issue doesn’t come close to compensating for his career-long opposition to expanding civil-rights protections and reducing mandatory sentences, and more broadly for what they see as a general indifference to issues important to minorities.

But to the Alabama senator’s supporters, it is an overlooked part of a résumé they say is sometimes caricatured. “This was a personal agenda item for him,” said Matt Miner, Mr. Sessions’s former chief counsel. “This law was not calibrated to target serious drug dealers and was disproportionately affecting African-Americans, and it offended him.”

In a rare bipartisan move, Mr. Sessions and Democratic Sen. Dick Durbin of Illinois ultimately struck a deal in 2010 to reduce, though not eliminate, the sentencing disparity. Mr. Sessions hung a copy of the resulting legislation, signed by President Barack Obama, in a prominent spot in his office next to his desk, Mr. Miner said....

In 1995, the U.S. Sentencing Commission tried to put the sentencing guidelines on par, but Congress rejected the proposal. Weeks later, riots broke out in the federal prison in Talladega, Ala., and spread to other federal facilities, an uprising the Bureau of Prisons attributed partly to Congress’s rejection of the cocaine measure. Mr. Sessions, then Alabama’s attorney general, was elected to Congress the following year. His first sentencing bill, in 2001, lowered the sentencing disparity to 20-to-1.

Mr. Sessions declined to comment for this article. But he told The Wall Street Journal at the time that the crack penalties were unfair and in many cases made cities less safe, not more so. On the Senate floor, he cited studies showing that African-Americans made up 84% of defendants sentenced for trafficking crack but only 31% of those sentenced for powder. “The five-gram trigger point for crack that was intended to protect African-Americans has resulted in heavy penalties for African-Americans, penalties that lack a rational basis,” Mr. Sessions said in 2002. He reintroduced the proposal in 2006 and 2007.

The Fair Sentencing Act, ultimately signed into law in 2010, raised the trigger for a five-year sentence to 28 grams of crack and the 10-year trigger to 280 grams of crack. The triggers for powder cocaine remained at 500 and 5,000 grams.

Advocates for criminal-justice changes aren’t expecting much support from Mr. Sessions on some of their other priorities. “It’s not entirely clear why he supported the Fair Sentencing Act,” said Marc Mauer, executive director of the Sentencing Project, which worked with Mr. Sessions on the issue for years. Mr. Sessions has opposed efforts to reduce sentences for nonviolent drug offenders and to investigate law-enforcement agencies accused of violating civil rights.

Others are even more downbeat.

“He has taken positions so diametrically opposed to civil and human rights that there is little hope he would bring the sense of hope and openness he brought to the Fair Sentencing Act to the job of attorney general,” said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. “I consider it a one-off where he could show he was more enlightened and less doctrinaire than some of his colleagues.”

Mr. Henderson’s group is one of 145 organizations that signed a letter opposing Mr. Session’s nomination. The letter cites racially insensitive remarks allegedly made by Mr. Sessions; his unsuccessful prosecution of three black voting-rights activists on fraud charges; his support for voter ID laws that many activists say are designed to tamp down minority voting; and his opposition to a 2009 law expanding federal prosecution of hate crimes....

Kevin Ring, vice president of Families Against Mandatory Minimums and himself a former offender, said he hopes Mr. Sessions will at least leave discretion to federal prosecutors rather than ordering them to seek maximum penalties. “I’m looking for a silver lining,” he said.

A few prior related posts on Senator Sessions and sentencing reform:

December 7, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, December 06, 2016

"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."

The title of this post is the full headline of this new Atlantic piece.  Here is how it gets started (with links from the original):

Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.

“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”

The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement.  In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater.  Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population.  Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.

The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.

By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.  

For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.

December 6, 2016 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, December 05, 2016

Shining spotlight on ugly dark racial realities of New York State's prison and parole systems

The New York Times has an important new series of articles examining biases in New York State's prison and parole systems. Here are links to and key passages from the first two articles:

"The Scourge of Racial Bias in New York State’s Prisons"

A review by The New York Times of tens of thousands of disciplinary cases against inmates in 2015, hundreds of pages of internal reports and three years of parole decisions found that racial disparities were embedded in the prison experience in New York.

In most prisons, blacks and Latinos were disciplined at higher rates than whites — in some cases twice as often, the analysis found.  They were also sent to solitary confinement more frequently and for longer durations.  At Clinton, a prison near the Canadian border where only one of the 998 guards is African-American, black inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.

A greater share of black inmates are in prison for violent offenses, and minority inmates are disproportionately younger, factors that could explain why an inmate would be more likely to break prison rules, state officials said. But even after accounting for these elements, the disparities in discipline persisted, The Times found.

The disparities were often greatest for infractions that gave discretion to officers, like disobeying a direct order.  In these cases, the officer has a high degree of latitude to determine whether a rule is broken and does not need to produce physical evidence.  The disparities were often smaller, according to the Times analysis, for violations that required physical evidence, like possession of contraband.

"For Blacks Facing Parole in New York State, Signs of a Broken System"

An analysis by The New York Times of thousands of parole decisions from the past several years found that fewer than one in six black or Hispanic men was released at his first hearing, compared with one in four white men.

It is a disparity that is particularly striking not for the most violent criminals, like rapists and murderers, but for small-time offenders who commit property crimes like stealing a television from a house or shoplifting from Duane Reade — precisely the people many states are now working to keep out of prison in the first place.

Since 2006, white inmates serving two to four years for a single count of third-degree burglary have been released after an average of 803 days, while black inmates served an average of 883 days for the same crime.

December 5, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, December 01, 2016

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

Download (5)I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform.  But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late.  Here are the substantive highlights:

Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.

“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”

“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."

Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.

The department announced additional details regarding these efforts:

Building a school district within the federal prison system....

Reforming federal halfway houses....

Covering the cost of state-issued IDs prior to inmates’ release....

Enhancing programs for female inmates....

These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.  

I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons.  And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration.  in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.  

Sigh and Grrr.

December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)

Tuesday, November 15, 2016

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Sunday, November 13, 2016

"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"

11_HardBargainsThe title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:

The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways.  In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration.  Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.

As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980.  Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases.  Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights.  For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.

Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment.  Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts.  For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack.  In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.

Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted.  Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.

November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Monday, November 07, 2016

"Public Attitudes toward Punishment, Rehabilitation, and Reform: Lessons from the Marquette Law School Poll"

The title of this post is the title of this new article now available via SSRN authored by Michael O'Hear and Darren Wheelock. Here is the abstract:

Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration.  In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin.

Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety.  However, we also found significant divisions in public opinion.  For instance, while black and white respondents largely shared the same priorities for the criminal justice system, black respondents tended to see the system as less successful in achieving those priorities.  Additionally, we found significant differences in the views of Democrats and Republicans, with Republicans more likely to favor punishment as a top priority and Democrats more likely to support rehabilitation.  Finally, we found that survey respondents that hold negative views of African Americans are significantly less likely to support rehabilitation, even after statistically controlling for the other variables in the model.

November 7, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, November 06, 2016

Another big NYC white-collar sentencing produces another way-below-guideline sentence

This USA Today article, headlined "Wall Street fraud sentencing prompts tears and debate," provides the highlights of a high-profile federal fraud sentencing that took place in Manhattan on this past Friday. Here are some of the details:

It was an emotional federal court sentencing, with the future of an Ivy League-educated former private equity executive hanging in the scales of justice.  

The prosecution said Andrew Caspersen, a scion of a wealthy business family, should get as much as a 15-year-plus prison sentence for executing a Ponzi-like scam that collectively bilked about a dozen of his clients, family members, and his investment company out of roughly $46 million.  The defense said Caspersen never intended to steal and betray. Asking for leniency, his attorney, Paul Shechtman presented evidence to show the 40-year-old father of two had been gripped by a pathological gambling addiction.

On the bench in the 14th-floor Manhattan courtroom sat U.S. District Judge Jed Rakoff, a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding.  "Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free," Rakoff wrote in The New York Review of Books in his examination of neuroscience and the law.  What ensued was a nearly three-hour debate over whether and how much gambling addiction should factor in the sentence — complete with references to "The Gambler," a short novel by Fyodor Dostoyevsky.

By the end, Caspersen and his wife, Christina, wept as they held one another in the courtroom.  Shechtman brushed away tears of his own.  And Manhattan U.S. Attorney Preet Bharara issued a statement that noted Caspersen had been sentenced — but made no comment on the punishment.

The prosecution attacked the gambling addiction defense from the start. Assistant U.S. Attorney Christine Magdo argued that 2014-2016 scam run by the Princeton University and Harvard Law School graduate had been carefully calculated. In a sentencing memo to the court, she noted that Caspersen fooled his roughly dozen victims by incorporating sham entities with names similar to real private equity firms.

The victims lost millions.  Some, investment professionals themselves, declined to present victim statements by name, fearing the reputational loss of being fooled.  Magdo added that Caspersen used much of the scam proceeds to pay the mortgage and two home equity credit lines on a Manhattan apartment, as well as a $3 million home in Bronxville, a wealthy suburb of New York City....

Shechtman submitted dozens of support letters to the court, including pleas for leniency from Caspersen's wife, friends, and even the doorman of his Manhattan co-op. The defense also turned to scientific and financial trading experts.  Dr. Marc Potenza, a Yale University School of Medicine psychiatry professor and mental health expert on addiction, examined Caspersen and reviewed his health records in preparation for testifying at the sentencing hearing. "Mr. Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path," Potenza wrote in a letter to the court....

Citing the experts' conclusions, Shechtman urged Rakoff to weigh the "tragic dimension" of Caspersen's gambling addiction.... Caspersen fought back tears as he addressed the court before being sentenced. "I have committed serious crimes of fraud, and have no one to blame but myself," he said. "I stand before you asking for mercy."...

After more than an hour of testimony and questioning of Potenza, Rakoff said he deemed it "more likely than not" that gambling addiction existed and could be a mitigating factor. Still, he stressed it must be weighed with other factors in the case. "It was a substantial fraud," said the judge. "It was a fraud that involved the deception of people who had a lot of faith in the defendant."

Ultimately, Rakoff sentenced Caspersen to four years in prison, followed by three years of supervised release, and nearly $28 million in restitution. "No purpose would be served by having him rot in prison for years on end," said the judge. He characterized federal sentencing guidelines that would allow the far longer sentence sought by prosecutors as "absurd." And, referring to the likelihood that some might question the leniency, Rakoff said outsiders didn't know all the facts of the case.

I cannot find any indication that Judge Rakoff has or plans to write up his sentencing conclusions in a formal opinion, but I sincerely hope he does.  For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 USC 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.

November 6, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Friday, November 04, 2016

"The lock-’em-up mentality for white-collar crime is misguided"

The title of this post is the subheadline of this recent Economist piece, which reviews a couple notable new books about white-collar crimes and punishments. Here are excerpts:

One thing right-wing populists and left-wing progressives can agree on is that society is too soft on white-collar crime. Conservatives abandon their admiration for business when it comes to “crooked bankers”.  Left-wingers forget their qualms if locking up “corporate evil-doers”.  Hillary Clinton’s line that “there should be no bank too big to fail but no individual too big to jail” would go down equally well at a Donald Trump rally.

But is society really soft on corporate wrongdoing? And would locking up bankers and businessmen and throwing away the key really solve any problems?  Two new books try to inject reason and evidence into a discussion more commonly driven by emotion and hearsay: “Why They Do It: Inside the Mind of the White Collar Criminal” by Eugene Soltes, of Harvard Business School, and “Capital Offenses: Business Crime and Punishment in America’s Corporate Age” by Samuel Buell, the lead prosecutor in the Enron case, who now teaches at Duke University.

Messrs Soltes and Buell both demonstrate that America is getting tougher on business crime. Between 2002 and 2007 federal prosecutors convicted more than 200 chief executives, 50 chief financial officers and 120 vice-presidents. Those at the heart of two big corporate scandals in 2001 and 2002 received harsh treatment: Bernard Ebbers, WorldCom’s chief executive was sentenced to more than 20 years without the possibility of parole — the equivalent of a sentence for murder in many states — and Kenneth Lay, Enron’s former boss, died awaiting sentence.  Between 1996 and 2011 the mean fraud sentence in federal courts nearly doubled, from just over a year to almost two years, as the average sentence for all federal crimes dropped from 50 months to 43.

America is constantly giving way to the temptation to punish white-collar criminals more severely: the Sarbanes-Oxley act (2002) and the Dodd-Frank bill (2010) both include measures designed to punish corporate types more severely. Other countries are moving in the same direction.... The global war on white-collar crime is giving rise to a new global industry: advisers such as Wall Street Prison Consultants and Executive Prison Consultants specialise in helping white-collar criminals adjust to life behind bars.

Prosecutorial zeal does not always result in convictions, but that is because prosecutors face some difficult trade-offs — including respecting the rights of some of the world’s most unpopular people.... The DoJ could bring far more individual prosecutions. But most corporate crime is the result of collective action rather than individual wrongdoing — long chains of command that send (often half-understood) instructions, or corporate cultures that encourage individuals to take risky actions. The authorities have rightly adjusted to this reality by increasingly prosecuting companies rather than going after individual miscreants.

Prosecuting firms may not have the smack of justice that populists crave: you can’t imprison a company, let alone force it to do a humiliating “perp walk” — being paraded in handcuffs in public. And the people who end up paying the fines are shareholders rather than the executives or employees who actually engaged in the misconduct. But it saves the taxpayer a great deal of money: the DoJ routinely asks firms to investigate themselves on pain of more serious punishment if they fail to do so.  It also advances the cause of reform, if not retribution: companies are routinely required to fix their cultures and adjust their incentive systems.

Populists like to think that there is a bright line between right and wrong: overstep it and you should go directly to jail.  But a great deal of wealth-creation takes place in the grey area between what is legal and questionable.  Some of the world’s greatest business people have overstepped the mark. Bill Gates was hauled up before the authorities at Harvard University when he was a student for using computers without permission. Steve Jobs participated in backdating stock option-based compensation at Apple, including his own, in order to inflate the options’ value....

The strongest populist argument is about double standards: it is wrong to let the rich get away with a slap on the wrist while poor youths are put in prison for possessing an ounce of cocaine. Messrs Soltes and Buell have clearly demonstrated that the rich aren’t getting away with a slap.  But even if they were, this would argue for reforming criminal law for the poor rather than extending the lock-’em-up mentality to the rich.  Society should by all means punish white-collar criminals if they have obviously committed crimes and imposed harm.  But it should resist the temptation to criminalise new businesses testing the rules.  And it should certainly resist the temptation to single people out for harsh punishment simply because they are rich and successful.

A few recent related posts:

November 4, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (2)

Thursday, November 03, 2016

"Black Studies and the Fight Against Mass Incarceration"

The title of this post is title of this great public event talking placing in a few weeks on my own campus, which is to begins with a showing of Ava DuVernay’s documentary 13th  (previously promoted here) and then includes a terrific-looking panel discussion.  Here is the official description: 

Join professor and civil rights lawyer Michelle Alexander for a screening of Ava DuVernay’s new documentary 13th, which explores the historical foundations and present-day structures of mass incarceration in the United States. After the film, Alexander will lead a panel discussion addressing the importance of Black Studies both for understanding the origins of systems of racial oppression and acquiring the tools needed to effectively combat them. The panel will feature faculty from the Department of African American and African Studies and the Moritz College of Law as well as student activists and community organizers.

A reception with complimentary food and drink will start at 5 PM in Heirloom Café, and the screening will begin at 6 PM.

A few of many, many prior related posts:

November 3, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 26, 2016

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

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

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

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

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

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

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

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

2) Repeal Mandatory Minimums...

3) Use Alternatives to Incarceration...

4) Prohibit Incarceration for Failure to Appear...

5) Revise Sentencing Guidelines...

6) Commit to Cutting Incarceration in Half...

7) Collect Data...

8) Train Judges on Implicit Bias...

9) Appoint Judges from Diverse Backgrounds...

10) Evaluate Ability to Pay

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

Tuesday, October 25, 2016

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

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

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

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

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

PART 3: CRIME

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

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

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

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

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

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

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

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

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

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

Saturday, October 22, 2016

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

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

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

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

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

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

Monday, October 17, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, October 16, 2016

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

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

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

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

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

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

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

Thursday, October 13, 2016

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, October 12, 2016

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

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

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

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

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

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

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

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

Tuesday, October 11, 2016

"Slave Narratives and the Sentencing Court"

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

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

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

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

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

Friday, October 07, 2016

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

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

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

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

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

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

Thursday, October 06, 2016

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

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

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

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

Our key findings include the following:

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

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

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

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

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

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

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

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

October 6, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Wednesday, October 05, 2016

Making an election-season case to end felon disenfranchisement

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

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

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

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

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

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

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