Sentencing Law and Policy

"Racial Inequity and Drug Arrests"

The title of this post is the title of this editorial in today's New York Times.  Here are snippets:

The United States prison system keeps marking shameful milestones. In late February, the Pew Center on the States released a report showing that more than 1 in 100 American adults are presently behind bars — an astonishingly high rate of incarceration notably skewed along racial lines. One in nine black men aged 20 to 34 are serving time, as are 1 in 36 adult Hispanic men.

Now, two new reports, by The Sentencing Project and Human Rights Watch, have turned a critical spotlight on law enforcement’s overwhelming focus on drug use in low-income urban areas. These reports show large disparities in the rate at which blacks and whites are arrested and imprisoned for drug offenses, despite roughly equal rates of illegal drug use....

The looming challenge, says Jeremy Travis, the president of John Jay College of Criminal Justice, is to have arrest and incarceration policies that are both effective for fighting crime and promoting racial justice and respect for the law. As the new findings attest, the nation has a long road to travel to attain that goal.

Some recent related posts:

• Two potent new reports on race and the drug war
• Another strong piece about race and justice
• New JPI report on racial disparities in incarceration
• Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates

Two potent new reports on race and the drug war

As detailed in this news article, "two studies published today conclude that the battle has been pitched largely in African American communities and that African Americans bear a disproportionate brunt of its collateral damage."  The two new studies come from The Sentencing Project and from Human Rights Watch.

The Sentencing Project report, titled "Geography: The War on Drugs in America's Cities," is available at this link.  The Human Rights Watch report, titled "Targeting Blacks Drug Law Enforcement and Race in the United States," is available at this link.  These excerpts from the conclusion of the HRW report reminds me why I find it disappointing and shameful that these issues are overlooked in the media/political frenzy surrounding a presidential campaign that is supposedly all about race:

The racial disparities in incarceration generated by drug control strategies raise deeply troubling questions.  Why are white drug users and sellers comparatively free of arrest and incarceration for their illegal activity?  Why has the United States continued to address illicit drugs primarily with a punitive criminal justice approach, including harsh prison sentences?  Why has the country been willing to impose the burden of incarceration for drug offenses primarily on those who by virtue of race and poverty are already among the most marginalized in society and the most politically powerless?

We cannot answer those questions. But we do know that the racial disparities we have documented in this report violate fundamental principles of justice and equal protection of the law. They undermine faith among all races and ethnic groups in the fairness and efficacy of the US criminal justice system. They are particularly intolerable because incarceration has such grave implications for the offenders' lives and those of their families and communities.

It is difficult to overstate the harshness of a prison sentence and its enduring consequences. Prisons are tense, overcrowded, dangerous, and barren places in which it may be difficult to maintain one’s emotional equilibrium and self-respect, much less turn a life around....

The United States can and must devise ways to make its drug control policies less destructive to black communities in general, and black males in particular.  There is no justification for levying the burdens of incarceration and its aftermath disproportionately on black drug offenders.  The statistics presented in this report reflect the persistent failure of the United States to ensure that its efforts to reduce illicit drug use and sales are conducted within a framework of respect for human rights.

Some related posts:

• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• New JPI report on racial disparities in incarceration
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Politics and the war on drugs 
• Should criminal justice reform be the new civil rights movement?

UPDATE:  Here is coverage of the two reports from the New York Times and from Reuters.

More evidence that race infects the death penalty

The New York Times has this new piece from Adam Liptak titled "New Look at Race When Death Is Sought." Here is how it starts:

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions.  Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now.  A new study to be published in the Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.... [T]he author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications.  For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row.  In other words, Professor Phillips wrote, "five black defendants would be sentenced to the ultimate sanction because of race."

Wouldn't it be refreshing if the MSM and others would vigorously ask the presidential candidates what they think of this new study rather than what they think of whatever comes out of the mouth of Reverend Jeremiah Wright?

Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities?

In this on-line report, the Sentencing Project spotlights a very interesting legislative development from Iowa.  Here is part of the report:

Iowa Governor Signs Nation's First Racial Impact Sentencing Bill: Less than one year after a national report found Iowa prisons and jails maintain the highest rate of racial disparity in the nation, Governor Chet Culver today signed legislation requiring examination of the racial and ethnic impact of all new sentencing laws prior to passage.

More details about this development can be found at this official report from the Iowa Governor's website.  Here is how it starts:

Today, at the John R. Grubb YMCA in Des Moines, Governor Chet Culver signed into law HF 2393, a bill requiring a “Minority Impact Statement” for any legislation related to a public offense, sentencing, or parole and probation procedures.  The legislation also requires that any application for a grant from a state agency must also include a minority impact statement.

According to Governor Culver, “This means when members of the General Assembly and Executive branch are considering legislation of this nature, we will now be able to do so, with a clearer understanding of its potential effects — positive and negative — on Iowa’s minority communities.   Just as Fiscal Impact Statements must follow any proposed legislation related to state expenditures, with my signature, Minority Impact Statements will serve as an essential tool for those in government — and the public — as we propose, develop, and debate policies for the future of our state.”

This bipartisan legislation passed the Iowa House of Representatives unanimously and passed the Senate overwhelmingly with a vote of 47-2.

I find this news VERY exciting, largely because I am eager to see (1) just what these Iowa Minority Impact Statements end up looking like, and (2) whether these statements have a real impact on crime and justice legislation. 

Also, since the laboratory of the states has a tendency to replicate effective experiments, I am hopeful that a number of other states will start seriously considering following Iowa's lead here.  Moreover, I would be very interested for members of the media to ask the Presidential candidates whether they might support similar legislation at the federal level.

Some related posts on racial disparities in incarceration:

• The Sentencing Project's new report on prison disparities
• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• New JPI report on racial disparities in incarceration
• Reflecting on race and criminal justice realities to honor MLK's legacy
• How the media can do better: ask the candidates tough crime and punishment questions

Should the NAACP and others really be concerned about the sentencing of the Barbie bandits?

A new sentencing story out of Atlanta, covered today by the AP and the Atlanta Journal-Constitution, seems very likely to become a topic of water-cooler dialogue.  Here are the basics from the AP:

The head of the Georgia NAACP called for the state to investigate the sentences given in the so-called "Barbie bandits" bank theft case, saying the two white defendants got less prison time than two black men.  Edward DuBose said Monday he will ask state Attorney General Thurbert Baker to look into the case. Baker's office did not immediately respond to a call seeking comment Tuesday.

Last month, Cobb County Superior Court Judge Mary Staley sentenced 20-year-old Heather Johnston to 10 years probation after she pleaded guilty to a charge of theft by taking in the 2007 heist. The judge gave 19-year-old Ashley Miller two years in jail and eight years probation. Both women are white.

Michael Chastang, 28, was sentenced to 10 years for being the mastermind of the robbery, and bank teller Bennie Allen III, 23, who pleaded guilty, was sentenced to five years.  Both men are black. Chastang also is serving 15 years on unrelated drug-trafficking charges and Allen was on probation for a drug conviction.

Johnston and Miller — both former exotic dancers who went by the stage names "Charlie" and "Adrienne" — were nicknamed the "Barbie bandits" after they were videotaped wearing sunglasses and laughing as they appeared to rob a Bank of America branch in Acworth of $11,000.

Because this case seems to me to be more about gender than about race, I cannot help but wonder if the NAACP is the right group to be calling for an investigation.  Then, again, I doubt that the National Organization for Women is generally too troubled when Barbies getting softer sentences than Kens, so maybe I should not be too surprised that this case is being racialized rather than gendered.  I suppose if we really wanted to get this story buzzing, we might speculate about whether a President McCain or a President Clinton or a President Obama would be most likely to encourage the US Civil Rights division to take a close look at Georgia state sentencing practices.

Feds agree to probation for tax cheat billionaire!?!?!

After seeing this story at Forbes, headlined "U.S. Agrees Guilty Billionaire Shouldn't Go to Jail," I may have to rethink my assumption that federal prosecutors never are willing to go soft on any white-collar criminals.  Here are the details:

[T]he sentencing of billionaire Orange County real estate developer Igor M. Olenicoff, scheduled to take place in a federal court in California April 14, might not make for good scared-straight headlines. In a new court filing, government prosecutors agree that Olenicoff, who pleaded guilty in December to one felony count of filing a false 2002 U.S. individual income tax return, should get off on probation.

In his plea agreement, Olenicoff, 65, admitted he lied on his 1998 through 2004 tax returns when he answered "no" to a question asking if he had ownership or authority over any financial accounts in foreign countries.  In fact, he had accounts in the Bahamas, Switzerland, Liechtenstein and Britain. As part of the plea deal, Olenicoff paid $52 million in back federal taxes, interest and civil fraud penalties and agreed to bring all the money in his foreign accounts (believed to total in the hundreds of millions) back to the U.S.

Forbes estimates the self-made, Russian-born Olenicoff, who came to the U.S. at age 15, is now worth $1.6 billion.  While the false-tax-return charge is punishable by up to three years in jail, Olenicoff's deal with prosecutors, together with federal sentencing guidelines, made it unlikely he would get more than six months.  Then last month, a U.S. probation officer filed a pre-sentencing report recommending Olenicoff get off with just one year of probation and a $3,500 criminal fine.  While that report is not a public document, prosecutors' response to it is.

In a filing this week, prosecutors said they didn't object to probation, but urged that the probation last three years--to ensure Olenicoff's "future compliance with Internal Revenue laws. " The prosecutors noted that while Olenicoff has fully complied with the terms of his plea deal, his "use of off-shore bank accounts and the transferring of assets to these accounts dates back to at least 1992."

Edward M. Robbins Jr., Olenicoff's attorney, said the prosecutors' position makes it "highly unlikely" that the judge will sentence Olenicoff to any prison time, although he still might order home detention. But Robbins, a former federal tax prosecutor who is now a partner with Hochman, Salkin, Rettig, Toscher & Perez, in Beverly Hills, rejected any suggestion that Olenicoff is getting off lightly and insisted the felony conviction alone would indeed have a strong deterrent effect.

I think what irks me about this story is the idea that a defendant apparently worth $1.6 billion is going to only face a fine of a few thousand dollar.  Especially if he is to avoid all prison time, how about a fine of, say, .1% of his worth.  Even letting this fellow keep 99.9% of his fortune could still produce a more fitting fine of $1.6 million.  Also, how about some community service requiring him to help low and middle income tax payers set up lawful tax shelters?

Native Americans and the criminal justice system

This new webpage at DPIC, which is titled "Native Americans and the Death Penalty," includes these interesting (and depressing) statistics about some broader criminal justice realities:

The American native crime victimization rate is twice that of non-Indians.  National crime victimization surveys reveal that whites perpetrate 57% of the violent crimes committed against American Indians. 80% of sexual assaults against Native Americans are perpetrated by whites.

The incarceration rate of Native Americans is 19% higher than the national rate.  The U.S. Commission on Civil Rights attributes this higher rate to differential treatment by the criminal justice system, lack of access to adequate counsel and racial profiling. Law enforcement agents arrest American Indians and Alaskan Natives at twice the rate of the greater U.S. population for violent and property crimes.  On average, American Indians receive longer sentences than non-Indians for crimes.  They also tend to serve longer time in prison for their sentences than non-Native Americans.

More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns

This new Bloomberg news piece, which quotes many former federal prosecutors, has me thinking again about racial disparities if Roger Clemens is not very soon subject to the same kind of criminal charges that are now facing Barry Bonds.  Here are snippets:

Roger Clemens may have risked a perjury prosecution with his sworn denials to a U.S. congressional committee investigating performance-enhancing drugs, lawyers following the case said....

Clemens may find that his denials of drug use play well with his fans, said Sam Buell, a former federal prosecutor who now teaches law at Washington University in St. Louis. They may also expose him to a criminal prosecution that could have been avoided, he said. "He's the one who's created venue for possible charges of lying,'' Buell said.  "He's the one who's offered himself up as a witness.  If it is then established that he's lying, it's going to be hard for the government to look the other way.'' 

"If you lie under oath to Congress, you are subject to prosecution,'' said Columbia Law School professor Daniel Richman, a former federal prosecutor.  "The sad fact is that all too many people lie to Congress and don't get prosecuted.  This is the beginning of an interesting prosecutorial decision-making process.'' 

The U.S. Attorney's Office in San Francisco brought perjury and obstruction charges against baseball All-Star outfielder Barry Bonds in November for telling a grand jury he didn't knowingly use steroids.  Bonds denied the charges and will seek at a Feb. 29 hearing to dismiss the perjury count.  Olympic sprinter Marion Jones was accused of obstruction and lying to U.S. investigators about taking steroids.  Jones pleaded guilty to the charges and was sentenced to six months in prison.

Some recent related posts:

• Should Roger Clemens now be indicted for perjury?
• "McNamee's Lawyer Predicts Clemens Pardon"
• Barry Bonds indicted, what would be his guideline range?
• Marion Jones gets six-month federal prison term

Seeing the (inevitable) light on faith-based prisons and re-entry programs

I have long been intrigued by — and an agnostic supporter of — faith-based prison and re-entry programs, largely because these programs emphasize the rehabilitative needs and potential of criminal offenders when politicians only want to posture about being the toughest on criminals.  Consequently, I found heartening and telling this op-ed in today's New York Times, headlined "The Faith to Outlast Politics."  Here are a few excerpts:

In his State of the Union address Monday evening, President Bush asked Congress to permanently extend the federal laws permitting religious nonprofit organizations to compete for federal grants.  Seven years ago this week, Mr. Bush started his faith-based initiative. He promised to build on these “charitable choice” laws, which were begat by bipartisan compromises between President Bill Clinton and Senator John Ashcroft. “Government cannot be replaced by charities,” Mr. Bush declared, “but it should welcome them as partners, instead of resenting them as rivals.”...

[But over] the past six years, federal grants to faith-based programs have shifted away from the local “armies of compassion” praised by Mr. Bush and toward large, national organizations with religious affiliations.  Every nonpartisan study has concluded that the initiative has not delivered the grants, vouchers, tax incentives and other support for faith-based organizations that the president originally promised.... President Bush has promised much. It will be left to the next president to deliver on those promises.

The good news is that every major presidential candidate seems open to doing just that.  Hillary Clinton has declared that there is no contradiction between “support for faith-based initiatives and upholding our constitutional principles.”  John McCain has supported the idea especially as it relates to improving educational programs for disadvantaged children.  Barack Obama describes faith-based programs as a “uniquely powerful way of solving problems” especially where former prisoners and substance abusers are concerned.  When he was governor of Massachusetts, Mitt Romney created his own faith-based office.

Politicians from both parties have come to realize that faith-based programs are indispensable even if they are not miraculous.  America’s churches, synagogues, mosques and other congregations supply dozens of major social services — like day care, homeless shelters and anti-violence programs — worth billions of dollars each year, as Ram Cnaan, a professor of social work at the University of Pennsylvania, has proved in several studies. Dr. Cnaan is not even counting the work done by inner-city religious schools and other local faith-based programs.  From coast to coast, the primary beneficiaries of these services are low-income children and families who are not otherwise affiliated with the religious nonprofit organizations that serve them....

Increasingly, governors and mayors, with or without Washington’s help, are on the case.  Since 2001, governors by the dozens and over a hundred mayors have started faith-based initiatives on their own. In numerous places, the initiatives have persisted through changes in administrations and party control — further evidence for the emerging political consensus in favor of using public dollars to support faith-based organizations.  The ideological disputes that infect inside-the-Beltway debates over the separation of church and state have little life in cities where what gets accomplished (or not) in juvenile justice, health care and other social services is a visible, life-and-death drama.

Though not focused specifically on faith-based prison and re-entry programs, this op-ed sheds light on all the different forces that make such programs inevitable in the years ahead.  As this story from NPR spotlights, states from coast-to-coast are facing "looming budget shortfalls" and prison/corrections costs are among the largest budget items for so many states.  Governors and mayors will surely turn to faith-based ports during this economic storm, particularly to provide services to offender populations that won't be able to preserve public funds through the usual political process.  Thus, the faith-based realities here will likely become another manifestation of my new slogan, "It's the prison economy, stupid."

Some related posts on faith-based prison programs:

• Is faith the best thing to happen to prisons since ... the faithful started prisons?
• Interesting Ohio report on correctional faith-based initiatives
• Another report tentatively praising faith-based prisons
• The virtues of faith-based prisons
• Interesting examination of faith-based prison movement
• A thoughtful, but disappointing, attack on a faith-based prison program
• Religion, sentencing and corrections
• Having faith in prisons
• How the media can do better: ask the candidates tough crime and punishment questions

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

Prisoner rights meet abortion rights

I often tell my students that one of the many joys of obsessing over sentencing and corrections is that every other area of law finds its way to this arena.  Thus, fittingly, on the 35th anniversary of Roe v. Wade, the Eighth Circuit today in Roe v. Crawford (available here) strikes down a Missouri rule essentially prohibiting elective abortions for female prisoners.  Here is how the opinion starts:

The Missouri Department of Corrections (MDC) instituted a policy of prohibiting transportation for elective, non-therapeutic abortions (MDC policy). Plaintiff Jane Roe (Roe) requested transportation for an elective abortion, and was denied.  The district court granted Roe’s request for emergency preliminary injunctive relief, and ordered the MDC to provide Roe with transportation outside of the MDC facility (referred to by the parties as an “outcount”).  Roe amended her complaint and sought injunctive relief on behalf of a class consisting of all women in the custody of the MDC who seek elective, non-therapeutic abortions.  The district court certified the class (Plaintiffs).  Both parties moved for summary judgment, which the district court granted in favor of the Plaintiffs.  The district court reasoned the MDC policy is unreasonable under the Fourteenth Amendment using the four-part test established by Turner v. Safley, 482 U.S. 78, 89-91 (1987) for reviewing the reasonableness of prison regulations impacting constitutional rights.  The district court also found the Plaintiffs’ Eighth Amendment rights were violated, determining that the desire for an elective abortion constitutes a serious medical need to which the MDC officials were deliberately indifferent.  On appeal, the MDC contests both findings.  Although we conclude the district court erred in its Eighth Amendment analysis, and on one aspect of the Turner analysis, we affirm the ultimate judgment.

Reflecting on race and criminal justice realities to honor MLK's legacy

To honor MLK's legacy, I encourage everyone to take 15 minutes to watch all of Dr. King's amazing "I Have a Dream" speech (available here).  Notably, in this post on MLK day two years ago, I asked whether criminal justice reform should be the new civil rights movement and made this observation:

From my sentencing-centric perspective, reflecting on a day honoring Martin Luther King leads me to the view that Dr. King, were he still alive, would be focused on criminal justice reforms.  So many aspects of the criminal justice system — from racial profiling to jury selection, from drug sentencing to the administration of the death penalty — highlight that our system is not color-blind (or at least not color-neutral). And, because of felon disenfranchisement and other collateral consequences, the enduring impact of a racially skewed criminal justice system cannot be overstated.

Listening to the speech with a concentrated criminal justice focus is an interesting exercise — especially when one reflects on Dr. King's emphasis on freedom and the massive number of people of color subject to criminal justice control in the United States. 

With this context, I also recommend reviewing this recent congressional testimony of Dr. Bruce Western, Director of the Inequality and Social Policy Program at Harvard University, which includes this distressing data:

The fraction of the population in state and Federal prison has increased in every single year for the last 34 years. The rate of imprisonment today is now five times higher than in 1972.... Today's novel rates of incarceration are most remarkable for their concentration among young African American men with little schooling.... Young black men are now more likely to go to prison than to graduate college with a four-year degree, or to serve in the military.  These extraordinary rates of incarceration are new.  We need only go back twenty years to find a time when the penal system was not pervasive in the lives of young African American men.

In the period of mass incarceration, blacks have remained 7 to 8 times more likely to be incarcerated than whites.  The large black-white disparity in incarceration is unmatched by most other social indicators.  Racial disparities in unemployment (2 to 1), nonmarital childbearing (3 to 1), infant mortality (2 to 1), and wealth (1 to 5) are all significantly lower than the 7 to 1 black-white ratio in incarceration rates.

Feds get another conviction in steriod investigations

As detailed in this New York Times article, "Dana Stubblefield, a former defensive lineman in the NFL, pleaded guilty in federal court here Friday to charges that he made false statements to a federal agent about his use of performance-enhancing drugs."  According to the article, here's the latest head-count in the federal prosecutions:

Stubblefield’s plea is the latest victory for the United States attorney’s office since the investigation into Balco began.  Six other people have pleaded guilty, including the Balco founder, Victor Conte, and none of the cases has gone to trial.  Barry Bonds, baseball’s career home run leader, and the former cyclist Tammi Thomas have pleaded not guilty.

As I mentioned in this recent post about the Marion Jones sentencing, I remain troubled that the highest profile athletes to be prosecuted in federal court for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and now Stubblefield).  Of course, Roger Clemens and other prominent white athletes are getting caught up in all the steroid ugliness, but these folks have not yet been subject to federal prosecution.  Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern of outcomes to be worthy of commentary and critical reflection.

UPDATE:  Over at TalkLeft here, T. Chris adds these comments:

Since President Bush doesn't believe that lying to federal investigators or grand jurors really deserves punishment (at least in the case of his friend and fellow rascal Scooter Libby), do you suppose he'll commute the sentences of Pro Bowl defensive lineman Dana Stubblefield or Olympic medalist sprinter Marion Jones?  Oh, and to all the disgruntled Republicans who complained that nobody gets charged or convicted or punished for what Scooter Libby did -- tell that to Stubblefield and Jones.

Of course, there is an important distinction between Scooter Libby and Stubblefield and Jones:  the later two ultimately admitted to their crimes, whereas Libby never has and was found guilty by a jury after forcing a special prosecutor to go through a high-profile (and high-cost) trial.  But, unlike those without connections, Libby did not end up paying a trial penalty.

Examining race and gender in certain violent politics crime

In part because I am finding the interaction of racial and gender issues in the 2008 campaign to be fascinating, I read with interest this new piece available through SSRN titled "Blind Justice: Seeing Race and Gender in Cases of Violent Crime."  Here is the abstract:

Racial disparities in the justice system, particularly as they relate to the death penalty, have received increasing scholarly and public-policy scrutiny recently. Comparatively little attention has been paid to the role of the defendant's sex in cases of violent crime, though research has been conducted on how the victim's sex affects court decisions.  This article seeks to extend this line of inquiry by asking how women accused of killing their spouses or non-spousal intimate partners are treated by the judicial system.  I present a theoretical framework that elucidates the impact of intersectionality and sexual stratification on structuring outcomes for women defendants in cases of violent crimes.  To test implications derived from this framework, I utilize an original data set of homicide cases from Oakland County, Michigan, from 1986 to 1988.  I find that female defendants were convicted more frequently than were male defendants, and that there is an interactive effect with race.  Further, I find that the conviction rate was higher if the victim was an alleged batterer of the defendant.  Finally, my data indicate that sentencing decisions have a clear racial aspect to them. I conclude with suggestions for future research.

Though the abstract suggests broad insights, the article's conclusion acknowledges that the data set used here is quite limited in time, location, numbers and focus.  Indeed, as the author explains, one of the article's main contributions is focus particularly on the particular violent crime of "intimate partner killing" rather than on the broader category of "stranger homicide."  (Of course, many homicides involve neither "intimate partners" or true "strangers," but that a concern for a different data coding conversation.)

Because of the narrow focus and numbers used in this data analysis, I am not sure how far the authori's findings can be extended.  To the author's credit, she emphasizes at the end that the presented data "suffer from two linked limitations: small sample size and problems of generalizability."

Finally, to the extent this author and others are giving more attention to important intersectionality issues in the criminal justice context, I hope class concerns will be brought more fully and forcefully into the analysis.  Though both race and gender can play large roles in the actual administration of justice in this country, I strongly believe that socioeconomic realities will often eclipse (and dynamically interact with) these other factors in profound ways.

Is gender bias in capital punishment a serious problem?

Though many justifiably express concerns about racial bias in the application of the death penalty, the potential gender bias in capital punishment systems get far less attention.  But new horrific killings in Washington state bring up these interesting gendered issues, as this new article from the Seattle Times spotlights.  Here are excerpts:

If precedent is an indication, prosecutors may face an additional challenge should they opt to seek the death penalty against Michele Kristen Anderson, 29, charged in the killing of six of her relatives near Carnation Christmas Eve: No woman has been sentenced to die in Washington state.

Of the 3,300 inmates on death row in the U.S. in the last complete count, only 49 were women — less than 1.5 percent.  "I think jurors, in general, would have a tougher time imposing the death penalty on a woman," said Snohomish County Deputy Prosecutor Chris Dickinson, who in 2003 unsuccessfully sought the death penalty against a woman convicted of hiring a group of teens to kill her boss.... Since 1977, nearly 1,100 inmates have been executed in the U.S.; only 11 were women....

Washington state has executed 77 inmates — all men — since 1904.  Officials Friday could find only two instances in more than a quarter-century in which Washington prosecutors even asked jurors to sentence a woman to death....

Death-penalty experts disagree over whether the small number of women sentenced to die in the U.S. indicates a bias favoring women. In a 2001 interview, Victor Streib, a law professor at Ohio Northern University who tracks death-penalty cases against women, said, "It's like there's something more valuable about women's lives ... Women are also treated differently when they're victims."  But Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said, "It could be a bias operating or it could just be there are so few cases of women committing crimes like this. It's a hard thing to prove one way or another."

Fascinating review of recent white-collar sentencing realities

I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime.  The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:

Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....

A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....

Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....

The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list.  Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....

Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...

At least 129 defendants cooperated with prosecutors, court records show.  The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government.....  Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial. 

Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud.  Of 193 defendants convicted at trial, 38 got 10 years or more....  "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace.  The going-to-trial penalty should be an embarrassment to judges everywhere.''...

Local follow-ups to new JPI report on racial disparities

As detailed here, Justice Policy Institute today released a new report that "documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities."  This report seems likely to get more local media attention than most similar reports because this webpage also provides links to an Interactive Map with associated county fact sheets.  Indeed, I already see these headlines and stories thanks to Google news:

• Bay Area counties toughest on black drug offenders from the San Francisco Chronicle

• Dane County 3rd nationally in racial disparity from the Wisconsin State Journal

• Forsyth comes up high in rating from the Winston-Salem Journal

I suspect there will be more of these types of stories in local papers int he days ahead.

New JPI report on racial disparities in incarceration

At a time when race and sentencing policy are entering the national political debate (details here and here), the Justice Policy Institute has produced an important new report showing the pervasiveness of racial disparities in imprisonment.  The new report, which is entitled "The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties," can be accessed at this webpage.  That webpage also provides links to an Interactive Map with associated county fact sheets, and it also has this official press release concerning the report.  Here are excerpts from the press release:

A new report released today by the Justice Policy Institute (JPI) finds that 97 percent of the nation's large-population counties imprisoned African Americans at a higher rate than whites. The report documents racial disparities in the use of prison for drug offenses in 193 of the 198 counties that reported to government entities.

“The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties,” found that counties with higher poverty rates, larger African-American populations and larger police or judicial budgets imprison people for drug offenses at higher rates than counties without these characteristics. These relationships were found to be independent of whether the county actually had a higher rate of crime. (The findings for the 198 counties.)...

“The exponential removal of people of color who have substance abuse problems from their communities and into prisons undermines and destabilizes neighborhoods-- it does not make them safer,” says Ethan Nadelmann, executive director of the Drug Policy Alliance. “Drug addiction doesn’t discriminate but our drug policies do.”   The report is being released just days before the Drug Policy Alliance hosts its 2007 International Drug Policy Reform Conference in New Orleans, Louisiana.

I hope that this interesting and important report gets all the attention it deserves.  I also hope that all the presidential candidates get asked hard questions based on this report.  Notably, as detailed in prior posts here and here, earlier reports indicate that the state with the highest black-to-white incarceration ratio for all crimes is Iowa, so this is a very important issue in the state that gets to vote first during the early political season.

Some related posts on racial disparities in incarceration:

• The Sentencing Project's new report on prison disparities
• Examining the disconcerting realities of racial disparities
• Another strong piece about race and justice
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• The latest BJS stats on incarceration nation
• New (depressing) report on race and increased incarceration
• In the SL&P mailbag: " Unequal under Law"
• Latest FSR issue covers crack sentencing

Some related on sentencing politics:

• A retroactive litmus test on leading Democratic candidates
• Politics and the war on drugs
• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Obama talking about serious sentencing reform

A retroactive litmus test on leading Democratic candidates

anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president.  The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."

So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.

As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues.  But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband.  Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy.  Now who should be accused of taking a page out of the Republican play book?

Some recent posts on crack guideline retroactivity issues:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Inside the Beltway views on crack amendment retroactivity
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

Some recent posts on sentencing politics in the 2008 campaign:

• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Politics and the war on drugs
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Obama talking about serious sentencing reform

UPDATE:  I now see that this item at Politico has more on this story.  Here are some telling details:

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.  "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." 

In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.

Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same.  (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)

MORE:  I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment."  I also see MyDD has this post saying that "Hillary's position is really astonishing."  I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.

More examination of juves serving LWOP terms

This article in today's Los Angeles Times spotlights a new report on offenders serving life terms for crimes committed as juveniles.  The article is entitled, "California a leader in number of youths in prison for life," and here is how it starts:

California has sentenced more juveniles to life in prison without possibility of parole than any state in the nation except Pennsylvania, according to a new study by the University of San Francisco's Center for Law and Global Justice. California currently has 227 inmates serving such sentences for crimes committed before they turned 18; Pennsylvania has 433.

The study, titled "Sentencing Our Children to Die in Prison," also found that the United States has far more juveniles serving life terms than any other country — 2,387 at present — with Israel running a distant second at 7. Israel, the only other country that imprisons juveniles for life, according to the study, has not issued such a sentence since 2004.

In the United States, life terms have fallen disproportionately on youths of color, with black juveniles 10 times more likely than white juveniles to be given a life without parole sentence, the report found. In California, black juveniles are 20 times more likely to receive such sentences.

This new report can be found at this link.  Here is the first paragraph from its executive summary:

This report focuses on the sentencing of child offenders — those convicted of crimes committed when younger than 18 years of age — to a term of life imprisonment without the possibility of release or parole (“LWOP”).  The sentence condemns a child to die in prison. It is the harshest sentence an individual can receive short of death and violates international human rights standards of juvenile justice.

Some related posts:

• Exploring our harsh approach to juve punishment
• Does Roper suggest young juve LWOP is unconstitutional?
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• Teen crime, adult time in Colorado
• The next issue in sentencing of juveniles?
• Using Roper's focus on age in post-Booker sentencings
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"

NPR segment on race and sentencing issues

I just had the honor and pleasure of doing a live segment on NPR's Talk of the Nation program to discuss race and sentencing issues.  The segment should be available on-line here soon, and this is NPR's teaser:

Recent high-profile cases, such as the case of the 'Jena Six' in Louisiana and Genarlow Wilson's case in Georgia, have brought attention to issues of equality in sentencing.  Guests and callers discuss racial and ethnic disparities in the criminal justice system.

Comments from callers during the program were very informative and insightful, and many rightly stressed that class may be an even more potent factor than race in criminal justices realities.  When I had the mic, I mentioned a number of statistics and recent reports , most of which can be found in these prior posts:

• NYT commentary on race and justice
• Another strong piece about race and justice
• Race, Inequality and Incarceration
• The Sentencing Project's new report on prison disparities
• Should criminal justice reform be the new civil rights movement?
• Examining the disconcerting realities of racial disparities
• New (depressing) report on race and increased incarceration

A few reflections on the Genarlow Wilson case and the Georgia Supreme Court

The Georgia Supreme Court's ruling in the Genarlow Wilson case (discussed here) has restored my faith in the willingness of at least some judges to let reality and common-sense enter into their analysis of the cruel and unusual punishment clause.  That said, I remain saddened that prosecutorial tunnel-vision prevented Genarlow from receiving justice much sooner. 

Though a lot could and surely will be said about the Georgia Supreme Court's ruling and its broader significance, I find interesting to note the racial and gender breakdown of ruling in a case that has had lots of racial and gender dynamics in play throughout. 

The majority opinion was authored by Chief Justice Leah Ward Sears, who according to the Court's website, "was the first African-American woman to serve as Superior Court Judge in Georgia [and upon appointment in 1992 became] the first woman and the youngest person ever to serve on Georgia's Supreme Court."  Joining her opinion was Justice Carol Hunstein (the only other woman on the Court), Justice Robert Benham (one of two African-American men on this Court) and Justice Hugh Thompson (who may now seem to Wilson supporters to be pretty fly for a white guy).  Justice George Carley authored the dissent, and he was joined by Justices Harris Hines and Harold Melton.  Justice Melton is the other African-American man on the Court and its newest member.

Lots of observations could be made based on these demographics and the voting pattern they produced in the Wilson case.  However, I find most striking simply how much more diverse the Georgia Supreme Court is than the U.S. Supreme Court.  Despite having nine members, SCOTUS has never had more than one active African-American justice, has never had an African-American female justice, and now only has a single female justice.  But, in the deep south state of Georgia, Genarlow Wilson's fate was in the hands of a seven-member court with three African-American jurists, two female jurists, and an African-American woman as the Chief.

Some (dated) Wilson posts discussing race, gender and related issues:

• Two (feminist?) perspectives on the Wilson case
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Why isn't the severe Georgia sentence constitutionally problematic? 
• ESPN effectively covers Genarlow Wilson's sad saga

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?