Wednesday, August 27, 2014
Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute. The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case. Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:
A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith). A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.
At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.
Here is how the dissent, per Judge Sargus sitting by designation, gets started:
This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent. In my view, the majority has adopted an unduly restrictive interpretation of the statute.
Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014). The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other. I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless. This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.
Related prior posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
Thursday, August 21, 2014
After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
The question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective." Here are excerpts from the commentary (with links from the original):
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
Additionally, business interests play a part in keeping cannabis illegal. Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.
A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- "The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- Is pot already really legal for middle-aged white folks?
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack
Tuesday, August 19, 2014
"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"
The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III. Here is the abstract:
This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.
There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.
Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’” For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.
Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.
Senator Whitehouse defends risk-assessment tools for some sentencing determinations
The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making. Here is the full text of the published letter:
In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism. But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.
The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.
States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend. That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing"
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Is an end to the modern drug war the only real way to prevent future Fergusons?
The question in the title of this post is prompted by this provocative new commentary by John McWhorter in The New Republic. The piece is headlined "There Is Only One Real Way to Prevent Future Fergusons: End the War on Drugs," and here are excerpts:
At times like this, with the raging protest in Ferguson, an implication hangs in the air that these events are leading somewhere, that things are about change. The saddest thing, however, is that this is, indeed, a “time like this” — one of many, before and certainly to come. It is impossible not to conclude that what happened to Michael Brown in Ferguson is now status quo, not a teaching lesson to move us forward....
We don’t know the details yet, but it’s apparent that, in spite of all we went through with [Trayvon] Martin so recently, in a clinch — the mean, messy place where these things always happen — the Ferguson cop Darren Wilson assumed that a big black guy was trouble, serious trouble, and shot him dead. It’s what happens in that clinch that matters, and we can now see that no amount of articulate protest can cut through such visceral human tendencies as bias and fear....
So, what will really make a difference? Really, only a continued pullback on the War on Drugs. Much of what creates the poisonous, vicious-cycle relationship between young black men and the police is that the War on Drugs brings cops into black neighborhoods to patrol for drug possession and sale. Without that policy — which would include that no one could make a living selling drugs — the entire structure supporting the notion of young black men as criminals would fall apart. White men with guns would encounter young black men much less often, and meanwhile society would offer young black men less opportunity to drift into embodying the stereotype in the first place.
But that’s the long game. In the here and now, we are stuck. Michael Brown was not “it.” The journalists assiduously documenting the events in Ferguson can serve as historians, but not as agents of change.
Recent related post:
Friday, August 15, 2014
Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
Senator Rand Paul, who has made notable efforts to push notable reforms of the federal criminal justice system, has penned this provocative Time op-ed about the sad and ugly situation that has unfolded in Ferguson, Missouri in the aftermath of the police shooting of teenager Michael Brown. Here are excerpts:
If I had been told to get out of the street as a teenager, there would have been a distinct possibility that I might have smarted off. But, I wouldn’t have expected to be shot. The outrage in Ferguson is understandable — though there is never an excuse for rioting or looting. There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response.
The images and scenes we continue to see in Ferguson resemble war more than traditional police action....
Most police officers are good cops and good people. It is an unquestionably difficult job, especially in the current circumstances.
There is a systemic problem with today’s law enforcement.
Not surprisingly, big government has been at the heart of the problem. Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies — where police departments compete to acquire military gear that goes far beyond what most of Americans think of as law enforcement.
This is usually done in the name of fighting the war on drugs or terrorism. The Heritage Foundation’s Evan Bernick wrote in 2013 that, “the Department of Homeland Security has handed out anti-terrorism grants to cities and towns across the country, enabling them to buy armored vehicles, guns, armor, aircraft, and other equipment.”...
When you couple this militarization of law enforcement with an erosion of civil liberties and due process that allows the police to become judge and jury — national security letters, no-knock searches, broad general warrants, pre-conviction forfeiture — we begin to have a very serious problem on our hands.
Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.
This is part of the anguish we are seeing in the tragic events outside of St. Louis, Missouri. It is what the citizens of Ferguson feel when there is an unfortunate and heartbreaking shooting like the incident with Michael Brown.
Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention. Our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences for non-violent mistakes in their youth.
The militarization of our law enforcement is due to an unprecedented expansion of government power in this realm. It is one thing for federal officials to work in conjunction with local authorities to reduce or solve crime. It is quite another for them to subsidize it.
Americans must never sacrifice their liberty for an illusive and dangerous, or false, security. This has been a cause I have championed for years, and one that is at a near-crisis point in our country.
Monday, August 11, 2014
Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here). Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front.
In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say. For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way:
In a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.
Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....
Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.
In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:
Greenfield: "Numbers don’t lie (But People Do)"
All this is highly recommended reading!
Wednesday, June 18, 2014
Senator Rand Paul continues making the conservative case for criminal justice reform
Regular readers know of my respect and admiration for Senator Rand Paul's modern efforts to explain to lots of folks how is modern conservative values call for modern crimnal justice reforms. This Huffington Post article, headlined "Rand Paul Tackles Prisons 'Full Of Black And Brown Kids' Amid GOP Reach For Minority Votes," reports on how potent Senator Paul's points have become as he makes the case for criminal justice reforms:
In an ongoing effort to bridge the gap between the GOP and minority voters, Sen. Rand Paul (R-Ky.) deviated from traditional party lines during a speech at the Iowa State Republican Party Convention Saturday, criticizing racist drug policies in the United States and calling for the restoration of voting rights for ex-convicts.
After conceding that his position may not "bring everybody together" and establishing that "drugs are a scourge," Paul continued:
I also think it’s a problem to lock people up for 10 and 15 and 20 years for youthful mistakes. If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons.
The likely 2016 presidential contender, who previously compared federal drug laws to the racist policies of the Jim Crow era, also criticized the GOP for failing to live up to its platform emphasis on family values. “If we’re the party of family values, in 1980 there were 200,000 kids with a dad in prison. There’s now two million,” Paul said, calling on Judeo-Christian conservatives to set policies by the principle of redemption.
Some related posts:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Senator Rand Paul telling fellow conservatives to focus on criminal justice reform
- GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives
Monday, June 09, 2014
"Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis"
The title of this post is the title of this notable essay by Jonathan Rapping that I just came across on SSRN. Here is the abstract:
The Gideon Court recognized a truism: until we ensure that poor people have access to the same quality of counsel that people with means can pay for, we cannot have equal justice. But fifty years later, the promise of equal justice has not materialized. In so many ways, our criminal justice system is less fair; less equal; less humane. Since Gideon was decided, the U.S. imprisonment rate has nearly quadrupled, and the percentage of people charged with crimes who are poor has roughly doubled. As compared to 1963, poor people today are more likely to be arrested, convicted, and sentenced to lengthier prison terms than their wealthier counterparts.
Given these depressing developments, some have questioned whether the right to counsel has made much of a difference for indigent defendants and whether it is even worth defending as a force to end the injustices of the system. This Essay takes a different view of the problem and argues that a strong public defender system is necessary to achieve systemic reform. This is so both because of the role the public defender plays in interrupting a process that is increasingly designed to convict and punish poor people en masse, and because of the potential of a strong community of public defenders to galvanize the movement needed to push for important policy reform.
Saturday, June 07, 2014
Detailing how many more women have come to discover "Orange is the New Black"
To really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):
The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations. So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.
The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)
Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)
Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)
1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)
Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)
Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.
Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)
Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)
Wednesday, May 21, 2014
"Guilty and Charged": NPR investigation of charges and fees imposed on criminal defendants
As detailed in this series of new pieces, National Public Radio has conducted an in-depth investigation of how states charging criminal defendants and convicted offenders a range of fees. The start of this lead piece for the special series, headlined "As Court Fees Rise, The Poor Are Paying The Price," provides this description of the NPR efforts and findings:
In Augusta, Ga., a judge sentenced Tom Barrett to 12 months after he stole a can of beer worth less than $2. In Ionia, Mich., 19-year-old Kyle Dewitt caught a fish out of season; then a judge sentenced him to three days in jail.
In Grand Rapids, Mich., Stephen Papa, a homeless Iraq War veteran, spent 22 days in jail, not for what he calls his "embarrassing behavior" after he got drunk with friends and climbed into an abandoned building, but because he had only $25 the day he went to court.
The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system.
A yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders. It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far.
A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required. For example:
- In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
- In at least 41 states, inmates can be charged room and board for jail and prison stays.
- In at least 44 states, offenders can get billed for their own probation and parole supervision.
- And in all states except Hawaii, and the District of Columbia, there's a fee for the electronic monitoring devices defendants and offenders are ordered to wear.
These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers. In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.
There are already six stories assembled on this topic available here under the special series heading "Guilty and Charged." Particularly valuable for researchers may be this chart reporting the results of NPR's state-by-state survey of common fees charged to defendants.
Two new juve justice papers from The Sentencing Project
- Juvenile Life Without Parole: An Overview -- Recent Supreme Court rulings have banned the use of mandatory life without parole for juveniles, as well as in non-homicide cases. Still, the United States stands alone as the only nation that sentences people to life without parole for crimes committed before turning 18. This briefing paper documents the key legal cases in this area, as well as the impact on fiscal costs, racial disparities, and prospects for reform.
- Disproportionate Minority Contact in the Juvenile Justice System -- Despite declining numbers of juveniles held in confinement nationally, racial disparities in the juvenile justice system remain a persistent problem. This briefing paper provides an overview of disparity trends in recent decades, and an assessment of how policy and practice decisions contribute to racial disparities.
Thursday, May 08, 2014
Recognizing that mass incarceration has lately been a little less massive
The always astute commentator Charles Lane has this new astute commentary in the Washington Post under the headline "Reaching a verdict on the era of mass incarceration." Here are excerpts:
Though the U.S. prison population of 1.5 million in 2012 was far larger than that of any other country, both in absolute terms and as a percentage of population, the era of ever-increasing “mass incarceration” is ending.
The number of state and federal inmates peaked in 2009 and has shrunk consistently thereafter, according to the Justice Department. New prison admissions have fallen annually since 2005. The inmate population is still disproportionately African American — 38 percent vs. 13 percent for the general population — but the incarceration rate for black men fell 9.8 percent between 2000 and 2009, according to the Sentencing Project.
This is not, however, the impression one would get from a new 464-page report from the prestigious National Research Council, which, like other think-tank output and media coverage of late, downplays recent progress in favor of a scarier but outdated narrative. The report opens by observing that the prison population “more than quadrupled during the last four decades” and goes on to condemn this as a racially tainted episode that badly damaged, and continues to damage, minority communities but did little to reduce crime.
The study’s authors are right that the disproportionate presence of minorities in prison is a tragic reality, rooted at least partly in the post-1960s politics of white backlash. Today’s big prison population reflects the impact of mandatory minimums and longer sentences, which probably do yield diminishing returns in terms of crime reduction, especially for nonviolent drug offenses. Summarizing a relative handful of studies, the NRC report implies that we can have safe streets without the cost, financial and moral, of locking up so many criminals — since it’s “unlikely” that increased incarceration had a “large” positive impact on crime rates.
It would be nice if there were no trade-off between crime and punishment, but common sense says it’s not so. An analysis by the Brookings Institution’s Hamilton Project, similar in both tone and timing to the NRC report, acknowledges that increasing incarceration can reduce crime and that this effect is greatest when the overall rate of incarceration is low.
Ergo, increasing the incarceration rate now would do little to reduce crime, but the crime-fighting benefits were probably substantial back in the high-crime, low-incarceration days when tougher sentencing was initially imposed.
It’s easy to pass judgment on the policymakers of that violent era, when the homicide rate was double what it is today and crime regularly topped pollsters’ lists of voter concerns. That had a racial component, but minorities were, and are, disproportionately victims of crime, too. The NRC report extensively discusses the negative effect on communities of incarcerating criminals, but it has comparatively little to say about the social impact of unchecked victimization.
Buried within the report is the fact that, in 1981, the average time served for murder was just five years; by 2000, it had risen to 16.9 years. The numbers for rape were 3.4 and 6.6 years, respectively. Insofar as “mass incarceration” reflects those changes — and the majority of state prisoners are in for violent crimes — it’s a positive development....
Instead of ignoring recent positive trends, researchers should try to understand them. The decline in incarceration may represent the delayed effect of falling crime and the diminished flow of new offenders it necessarily entails.
Sentencing reform, too, is taking hold, based on changing public attitudes. The percentage of Americans who say criminals are not punished harshly enough has fallen nearly 23 points since 1994 — when the crime wave peaked — according to data compiled by Arizona State University professor Mark Ramirez.
After erring on the side of leniency in the 1960s, then swinging the opposite way in the 1980s and 1990s, the United States may be nearing a happy medium. But this probably would not be possible if 48 percent of Americans felt unsafe walking at night within a mile of their homes, as the Gallup poll found in 1982. To sustain moderate public opinion we must keep the streets safe, and to do that we must learn the right lessons from the recent past.
I largely concur with many of Lane's sentiments here, especially with respect to making sure we acknowledge that rates of violent crime have dropped dramatically in recent decades and trying our very best to identify and understand recent trends and to "learn the right lessons from the recent past." At the same time, though, I question the basis for asserting that we may "be nearing a happy medium" with respect to modern punishment policies and practices given that the vast majority of the most severe sentencing laws enacted in the the 1980s and 1990s are still on the books.
Some recent related posts:
- "The Growth of Incarceration in the United States: Exploring Causes and Consequences"
- Notable new data on crime, punishment and mass incarceration
- New Human Rights Watch report bemoans "Nation Behind Bars"
- Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
- Reviewing how US prisons now serve as huge warehouses for the mentally ill
- Lots of recent (and long-overdue) new concerns about solitary confinement
- "Fewer prisons — and yet, less crime"
Tuesday, May 06, 2014
"The Growth of Incarceration in the United States: Exploring Causes and Consequences"
The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering). The report runs more than 450 pages and can be accessed at this link.
I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way. Fortunately, the always help folks at The Crime Report have these two great postings about the report:
I hope to be able to provide more detailed coverage of this important report in the weeks to come.
Wednesday, April 23, 2014
"Are female sex offenders treated differently?"
The title of this post is the headline of of this new Salon article which carries this subheadline: "A light sentence for a teacher suggests courts still don't get it about women predators." Here is how the piece begins:
It’s an all too common story – a high school teacher facing sex abuse charges involving students admits to the wrongdoing and faces the criminal justice system. But was a sentence of just one month in custody at a Community Correction Center sufficient punishment for a 39-year-old educator who has sex abuse investigations dating back six years? And could the slap on the wrist sentence have anything to do with the fact that in this case, the teacher sentenced is a woman, and the victim is a boy?
In a case that involves charges of abuse from two male students, Oregon teacher Denise Keesee has acknowledged multiple sexual encounters in 2008 with a then 16-year-old student, and currently faces a $5.1 million lawsuit from another male student. According to Oregon Live, court documents show that “Keesee told detectives she kissed [the other student] several times in 2012 when they were alone in her classroom. She also reportedly admitted to sending him photos of herself, including one of her naked.” Because that student was 18, no criminal charges were filed.
The justice system doesn’t lack for stories of male abusers who get off with relatively light punishments. And it’s important to note that every story involving sex abuse is unique. But at the same time that Denise Keesee is facing just 30 days of confinement for what happened between her and a 16-year-old, a male teacher in her same state was last week sentenced to nearly three years in prison for “an inappropriate sexual relationship” with a 16-year-old female student. Last month in Idaho, a special education teacher was sentenced to five to 20 years in prison for sexually abusing two adolescent girls.
Friday, April 11, 2014
"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"
The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.
Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
Tuesday, April 08, 2014
NY Times debates "What It Means if the Death Penalty Is Dying"
Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty. If passed, the law would make New Hampshire the 19th state to abolish capital punishment. The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.
As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?
Here are the contributions, with links via the commentary titles:
"Rare and Decreasing" by Richard Dieter
"Punishment Needs to Be Punishment" by Robert Blecker
"No Justice for Victims of Color" by Khalilah Brown-Dean
"Of Course, It’s Cruel and Unusual" by Kirk Bloodsworth
"Claims of Racial Disparity Are Misleading" by John McAdams
"The Most ‘Unusual’ It’s Ever Been" by Paul Butler
Monday, April 07, 2014
"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"
The title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release. Here are excerpts from the press release:
As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.
According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....
According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.
"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...
The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:
- Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest. JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
- More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits. The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses. Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses. There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....
Does an imprisoned white supremacist have a right to an anti-Kosher diet?
The question in the title of this post is prompted by this local article from Illinois headlined "White Supremacist Hale Sues Bureau Of Prisons For Violating His Rights." Here are the basics:
It was nine years ago today that Matt Hale of East Peoria was sentenced to 40 years in prison – convicted of soliciting the murder of a federal judge. Now, without a lawyer, Hale is suing the federal Bureau of Prisons because he says his rights are being denied.
Matt Hale, a minister in the religion of Creativity, is suing because he says the federal prison system has been taking away his mail privileges.
“They just come in and announce to him that his mail is being taken away from him,” said Evelyn Hutcheson, Hale’s 75-year-old mother. Hutcheson is his staunchest defenders. She says her son is moral, never plotted against a judge – and she says his trial was dirty and tainted. “I would like to see him freed before I die. I really would. But I just know how dirty it is. I’m sorry. I know how dirty it actually is. And who am I? I’m just a little peon. I’m nothing.”
Besides wanting to get his mail regularly, Hale is suing the prison system to be served the diet he says his anti-Jewish religion requires: uncooked food like raw fruits, vegetables and nuts.
Tuesday, March 25, 2014
"Victim Gender and the Death Penalty"
The title of this post is the title of this notable new empirical paper authored by a whole bunch of folks at Cornell Law School and now available via SSRN. Here is the abstract:
Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.
March 25, 2014 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack