Saturday, April 02, 2016

"Unfinished Project of Civil Rights in the Era of Mass Incarceration and the Movement for Black Lives"

The title of this post is the title of this newly published article authored by Nicole Porter. Here is the piece's introduction:

American criminal justice system has been dominated by relentless growth for the last forty years. The culture of punishment, in part driven by political interests leveraging “tough on crime” policies and practices marketed as the solution to the “fear of crime,” has been implemented at every stage of the criminal justice process: arresting, charging, sentencing, imprisonment, releasing, and post-incarceration experiences in the era of mass incarceration.

While it may not excuse criminal offending, the destructive effects of mass incarceration and excessive punishment are visited disproportionately upon individuals and communities of color and reinforce that the project of the civil rights revolution remains unfinished.  In recent years, there has been growing consensus across ideological lines to address mass incarceration.  Yet, policy changes are incremental in approach and do not achieve the substantial reforms needed to significantly reduce the rate of incarceration and its collateral impacts.  Incremental policy reforms include: reducing the quantity differential between crack and powder cocaine that results in racially disparate sentencing outcomes at the federal level and in certain states; reclassifying certain felony offenses to misdemeanors; expanding voting rights and access to public benefits for persons with felony convictions; and adopting fair chance hiring policies for persons with criminal records.

The Movement for Black Lives, or Black Lives Matter, offers a new public safety framework to finish the project of civil rights in the era of mass incarceration.  This movement has a sophisticated analysis that seeks to address the underlying structural issues that result in poor policy outcomes for communities of color, including high rates of incarceration.  The public safety framework does not excuse criminal offending, but offers a new approach of viewing justice-involved persons — a disproportionate number of whom are African American and Latino — as worthy recipients of public safety responses not dominated by arrests, admissions to prison, or collateral consequences.

Aligning a Black Lives Matter framework with public safety strategies expands policy responses beyond the criminal justice system to evidence-based interventions demonstrated to reduce criminal offending.  Research shows that early childhood education, quality healthcare, and targeted employment programs can help reduce recidivism and prevent justice involvement.  More importantly, the Black Lives Matter framework can help to shift norms away from the punitiveness that dominates U.S. criminal justice policy.

April 2, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

"Racial Disparities in Youth Commitments and Arrests"

The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:

Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half.  Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years.  Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.

Both white youth and youth of color attained substantially lower commitment rates over these 10 years.  For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000).  The combined effect was to increase the commitment disparity over the decade.  The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).

As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely.  Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.

Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent.  Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.

April 2, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, March 30, 2016

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, March 25, 2016

"Poor white kids are less likely to go to prison than rich black kids"

The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems.  Here is the post's discussion of the research:

It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.

In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.

He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.

The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.

About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.

The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.

Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....

It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....

In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.

The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.

March 25, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, March 23, 2016

"Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"

The title of this post is the title of this notable new article authored by Jesse Norris now available via SSRN. Here is the abstract:

After white supremacist Dylann Roof killed nine African-Americans at a Charleston, South Carolina church, authorities declined to refer to the attack as terrorism.  Many objected to the government’s apparent double standards in its treatment of Muslim versus non-Muslim extremists and called on the government to treat the massacre as terrorism. Yet the government has neither charged him with a terrorist offense nor labelled the attack as terrorism.

This Article argues that although the government was unable to charge him with terrorist crimes because of the lack of applicable statutes, the Charleston Massacre still qualifies as terrorism under federal law.  Roof’s attack clearly falls under the government’s prevailing definition of domestic terrorism.  It also qualifies for a terrorism sentencing enhancement, or at least an upward departure from the sentencing guidelines, as well as for the terrorism aggravating factor considered by juries in deciding whether to impose the death penalty.

Labelling Roof’s attack as terrorism could have several important implications, not only in terms of sentencing, but also in terms of government accountability, the prudent allocation of counterterrorism resources, balanced media coverage, and public cooperation in preventing terrorism.  For these reasons, the Article contends that the government should treat the Charleston Massacre, and similar ideologically-motivated killings, as terrorism.

The Article also makes two policy suggestions meant to facilitate a more consistent use of the term terrorism. First, the Article proposes a new federal terrorism statute mirroring hate crime statutes, which would enable every terrorist to be charged with a terrorist offense.  Second, simplifying the definition of terrorism to encompass any murder or attempted murder meant to advance an ideology would avoid the obfuscation invited by current definitions. However, even without such changes, the government still has the authority and responsibility to treat attacks such as Roof’s as terrorism for nearly all purposes.

A few prior related posts:

March 23, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Sunday, March 20, 2016

"Black Kids Less Likely To Use Hard Drugs Than Whites, Still Go To Jail More"

The title of this post is the headline of this recent posting at Medical Daily providing a summary this new research paper titled "Health Disparities in Drug-and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention" published in the American Journal of Public Health.  Here are excerpts from the summary:

The United States is plagued with many forms of substance abuse, and youth leaving juvenile detention are especially vulnerable. Many think African Americans in this group are especially prone to drug use, but a new study says this stereotype is unfounded. According to researchers at Northwestern, abuse of and dependence on cocaine, hallucinogens, amphetamines, and opioids is less common among African Americans than among non-Hispanic whites.

The thorough study is the first of its kind. Researchers followed the youths into their late 20s, for up to 12 years after release. At that point, non-Hispanic whites had 30 times the odds of becoming addicted to cocaine as African Americans did. “Those findings are striking, considering the widely accepted stereotype of African Americans as the most prevalent abusers of ‘hard drugs,’” said Linda A. Teplin, senior author of the study and professor of Psychiatry and Behavioral Sciences at Northwestern University Feinberg School of Medicine, in a press release.

Though whites were more likely to abuse or depend on hard drugs, their incarceration numbers didn’t follow the same pattern. According to an estimate by the U.S. Department of Justice, among males born in 2001, one in three African Americans and one in six Hispanics will be incarcerated at some point in their lives, compared with just one in 17 Caucasians. “We must address — as a health disparity — the disproportionate incarceration of African Americans,” Teplin said.

In terms of differences between the sexes, the study found that 91.3 percent of previously delinquent male youths and 78.5 percent of females had had a substance abuse disorder by their late 20s. However, males were more likely to abuse alcohol and marijuana, and females were more likely to exhibit opiate, cocaine, amphetamine, and sedative addiction.

March 20, 2016 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5)

Friday, March 18, 2016

Making the (Trumpian?) case for winning the drug war via full legalization

HarpersWeb-Cover-201604-302x410_black This cover story of the April 2016 issue of Harper's magazine is authored by Dan Baum and is headlined "Legalize It All: How to win the war on drugs."  And, as I mean to suggest via  the headline of this post, this article may be channeling what GOP Prez candidate front-runner Donald Trump really thinks about how to improve modern drug policy in the US.  (Recall that I had this post on my marijuana reform blog, way back when Trump first announced his serious run for the Oval Office last summer, which highlights that Trump not all that long ago had once suggested full legalization would be the only way to "win" the drug war.)  Here are is an except from the first part of the lengthy Harper's piece:

Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.

As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel.  The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers.  Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.

Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether.  Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.

Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs.  In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise.  Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants.  After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.”  The Supreme Court of Brazil is considering a similar argument.

Depending on how the issue is framed, legalization of all drugs can appeal to conservatives, who are instinctively suspicious of bloated budgets, excess government authority, and intrusions on individual liberty, as well as to liberals, who are horrified at police overreach, the brutalization of Latin America, and the criminalization of entire generations of black men.  It will take some courage to move the conversation beyond marijuana to ending all drug prohibitions, but it will take less, I suspect, than most politicians believe.  It’s already politically permissible to criticize mandatory minimums, mass marijuana-possession arrests, police militarization, and other excesses of the drug war; even former attorney general Eric Holder and Michael Botticelli, the new drug czar — a recovering alcoholic — do so. Few in public life appear eager to defend the status quo.

A few prior related posts:

March 18, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

Wednesday, March 16, 2016

"Why many black voters don't blame Hillary for tough-on-crime laws"

The title of this post is the headline of this notable Christian Science Monitor article from earlier this week which strikes me as especially timely given that Hillary Clinton's success in the most recent state primaries would seem to put her on a near-certain path to a Prez candidate nomination. Here are excerpts from the lengthy piece:

In the late 1980s and early 1990s, [gang violence and open-air drug dealing] was the everyday reality in African-American neighborhoods around the country. It was in this context that black political leaders, under pressure from their communities, pleaded for the federal government to address the drug problem. The now infamous response from the federal government was a series of bipartisan “tough on crime” laws that, instead of just cracking down on drugs and violent crime as intended, filled the country’s prisons to a breaking point, disproportionately with young black men.

Now amid bipartisan efforts to undo many of these laws, and the rise of a new generation of civil rights activists, this history has created a strange dissonance. Black Lives Matter activists have criticized Hillary Clinton, the front-runner for the Democratic nomination, for supporting these tough-on-crime policies as first lady in the ’90s. But Mrs. Clinton has ridden overwhelming support from black voters to a commanding lead in the Democratic primaries. Earlier this month, the urban black vote helped her edge out a victory in the Massachusetts primary over challenger Sen. Bernie Sanders.

“If you read some intellectuals on the left, they’d suggest there should be a grudge against the Clintons, but I think the primary results show there isn’t a grudge at all,” says Michael Fortner, a professor of urban studies at the City University of New York and author of the book “Black Silent Majority.”

Part of the reason, he notes, is that black communities are aware that for decades they were some of the loudest advocates for tough drug laws. Tough-on-crime policies, he adds, “weren’t something that just happened to black people, that were imposed on the black community…. Political leaders, mayors, and pastors played an important role in pushing for these policies.”

Another reason, he says, is that most black voters aren’t just concerned about criminal justice policy, past or present. “They’re also, like everybody else, concerned about paying their bills, they’re concerned about good schools, concerned about achieving the American dream,” he says....

“I think the African-American community, like Hillary Clinton, they’ve had to rethink their approach,” says Thomas Whalen, an associate professor of social sciences at Boston University. “And you have to. In a so-called drug war, you can’t be rigid in your position and hope to be ultimately successful — you have to be as flexible as possible based on the conditions on the ground.”...

For many decades, however, drugs were a priority.  As early as June 1970, for example, Ebony magazine published an article titled: “Blacks declare war on dope.”  In 1986, 16 of 19 African-American members of the House co-sponsored President Reagan’s Anti-Drug Abuse Act.  And eight years later, 22 members of the Congressional Black Caucus voted for Bill Clinton’s 1994 crime bill that boosted funding to police, expanded the death penalty, and created the “three strikes” sentencing law.

March 16, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, March 14, 2016

"The Tyranny of Small Things" observed during local sentencing proceedings

I have long told my student that you can learn a lot by just watching, and this new paper on SSRN authored by Yxta Maya Murray reinforces this point in an interesting sentencing setting. The paper is just titled "The Tyranny of Small Things," and here is the abstract:

This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings.  I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement.  My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people.  In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.

March 14, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Wednesday, March 09, 2016

"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"

The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:

Why can’t most people in prison vote?  Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin.  But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.

The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery.  This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement.  Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....

A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment.  However, that reasoning falls doubly short.  Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal.  Why is the right to vote excluded?  Also, the social contract may not need civil death to defend it.  The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.

Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country.  They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere.  In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths.  Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.

International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico.  Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.

The sky hasn’t fallen in Vermont or Maine either.  Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else.  Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout.  At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States.  The death of civil death doesn’t kill democracy.

As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":

Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief.  "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."

Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.

March 9, 2016 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (5)

Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?

JudgeKJacksonNewProfileThe question in the title of this post is my genuine and sincere effort to try to feel better about comments over at Crime & Consequences and other commentary from conservative pundits about my favorite SCOTUS short-lister, US District Judge Ketanji Brown Jackson.  For the record, as I have previously noted, my affinity for Judge Brown Jackson is surely influenced by her prior service as a federal public defender and as a Vice-Chair of the US Sentencing Commission (during which time I had the opportunity to once dine with her at a sentencing conference).  That personal bias notwithstanding, everything I can find "on paper" about Judge Brown Jackson suggests to me she is an intellectual super-star, not an "intellectual lightweight" or a dim light as she has been described by some conservative commentators.

The "on paper" credentials to which I refer are detailed here, and here is my own brief summary:  Judge Brown Jackson graduated magna cum laude from Harvard College and cum laude (and was on the law review) at Harvard Law School.  She clerked for two highly regarded federal judges at the district (Judge Saris) and circuit (Judge Selya) courts in Boston and then for Supreme Court Justice Breyer. She thereafter worked in prominent and challenging positions in public practice (as a federal public defender), in private practice (at the firm Morrison & Foerster) and in the most important judicial-branch government agency (as Vice-Chair of USSC).  She has now been a federal district judge for three years after a unanimous confirmation vote at which, quite notably, she was supported by the current GOP Speaker of the House of Representatives who stated expressly that his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

Now, given that Judge Brown Jackson is only 45 years old and has been a district judge for just three years, I can certainly see an objective basis for asserting that she is too young and/or does not yet have enough judicial experience to be an ideal SCOTUS nominee.  (That said, she is older, has been a federal judge twice as long, and has a more impressive paper record than Clarence Thomas circa 1991 when Prez GHW Bush nominated him to replace Justice Thurgood Marshall.)  But give her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light.  And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson.

Ergo the question in the title of this post: I would really like to hear (anonymously if needed) from folks who know more about Judge Brown Jackson's talents, preferably as a result of working directly with her professionally in the last few decades.  Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C."  Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement.  Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

March 9, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (34)

Sunday, February 14, 2016

Prognosticating SCOTUS possibilities in light of existing politics

One of many reasons last night I first thought of Loretta Lynch as a SCOTUS nominee was because I think that, for both legacy and political reasons, Prez Obama may be very interested in nominating someone who is (1) an African American, and/or (2) a woman, and/or (3) someone who has been already confirmed to a significant federal position by the current GOP-controlled Senate.  The only person who came to mine filling all three of these criteria is current Attorney General Loretta Lynch.

In this lengthy post at SCOTUSblog, Tom Goldstein talks through his thinking on this front and seems to share my view of the key factors political and practical likely to motivate Prez Obama here.  But, seeing some practical problems with nominating AG Lynch, Tom concludes his post stating that "at this point I think that Judge Paul Watford is the most likely candidate."  Especially because I recall Tom being spot-on in a lot of prior SCOTUS nominee predictions in recent years, I am now inclined to view Judge Watford as something of a front-runner now.

Of course, there are any number of other possibilities, and here are some helpful "short-list" articles from various thoughtful court-watchers worth checking out: from Josh Gerstein at Politico; from Dahlia Lithwick at Slate; from Dylann Mathews at Vox.  After reviewing these lists, I see two additional candidates who (like Judge Watford) satisfy two of the three criteria I have listed at the outset of this post and who, in my view, have some other possible political/diversity benefits.  Here are their names and backgrounds via the Vox piece:

Jane Kelly — US Court of Appeals for the Eighth Circuit

Any nominee is going to have to go through the Judiciary Committee, chaired by Sen. Chuck Grassley (R-IA). And no nominee is going to make Grassley happier than Jane Kelly, a career public defender from Iowa whose nomination for the federal bench Grassley championed, leading to a unanimous confirmation in 2013. She was also, coincidentally, a Harvard Law School classmate of Barack Obama's, graduating with him in 1991.

Her record as a defense attorney might spark some objections from law-and-order-oriented conservatives in the Senate, but it's hard to argue she lacks empathy for victims of crime. In 2004, while jogging, she was tackled and beaten by a male stranger, requiring months of recovery before returning to her practice.

None of this guarantees she will be confirmed. But if Kelly is not confirmable, it's hard to imagine anyone is.

Jacqueline Nguyen — US Court of Appeals for the Ninth Circuit

By contrast, Watford's colleague Nguyen — who was born in Vietnam and would be the first Asian-American justice — was confirmed the same month as him in 2012, by a whopping 91-to-3 margin. She's also a UCLA Law alum, and is only 50, meaning she'd have a nice long tenure.  She got some criticism from liberals for filing a lone dissent defending a police officer who tased an innocent bystander, but if anything that should help her win over Republican votes.  She also is far better versed in hovercraft moose-hunting jurisprudence than any other SCOTUS contender.

But Nguyen is also, for better or worse, a bit of a blank slate without that many major decisions on her record (with a possible exception being a First Amendment case where she and two Republican colleagues found a school uniform policy unconstitutional). That makes it hard to judge what kind of justice she'd be, which could make both Obama and the Senate more hesitant.

The fact that both of these women were confirmed without any significant opposition from the Senate makes them both, I think, look like more moderate picks than folks likely Lynch and Watford. In addition, for practical reasons, I think it is very significant that Judge Kelly is from Iowa and has Senator Grassley as a backer. For political reasons, the fact that Judge Nguyen is an immigrant (and did not go to any Ivy League schools) makes her a uniquely interesting possible nominee.

Prior related post:

UPDATE: I am intrigued to now see Tom Goldstein has this new post up at SCOTUSblog on this front which get tarted this way:

This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee.  On reflection, I think that Attorney General Loretta Lynch is more likely.  I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.

February 14, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (17)

Saturday, February 13, 2016

Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?

Download (3)The question in the title of this post is prompted by this press report headlined "With death penalty decision uncertain, judge delays Dylann Roof’s federal trial."  Here are the details:

A federal judge on Thursday delayed Dylann Roof’s trial in the deadly attack on Emanuel AME Church because prosecutors still have not decided whether to seek execution. Roof could face the death penalty on nine of his 33 charges in federal court, but Assistant U.S. Attorney Jay Richardson said the decision by Washington-based Justice Department officials could take another two months.

Such delays in high-profile federal cases are typical.  After the Boston Marathon bombings in April 2013, it took then-Attorney General Eric Holder more than nine months to announce he would seek the death penalty against Dzhokhar Tsarnaev.  Nearly eight months have passed since Roof’s arrest.  Attorneys for the 21-year-old Eastover resident already have said he would plead guilty if the government opts against capital punishment.

U.S. District Judge Richard Gergel urged prosecutors during a hearing Thursday in downtown Charleston to inform him promptly of any development so a trial date can be set.  “There are obviously important and alternate paths to go here based on that decision,” the judge said.

Roof’s federal charges in the June 17 shooting of nine black parishioners at the Calhoun Street church include civil rights violations. Officials have called the shooting a hate crime.  Because of the delays in the federal case, Roof is likely to be tried first in state court in July.  State prosecutors already have said they would pursue the death penalty. Thursday’s hearing in federal court served as a chance for Roof’s defense team and prosecutors to update Gergel on the status of the case. Roof, who remains at Charleston County’s jail, was not there....

Evidence in the cases continues to flow at a steady clip.  Roof’s defense team, led by attorney David Bruck, last month got a hard drive full of data, and the FBI has since authored more reports, Richardson said.

While Richardson said the government would be ready for a trial soon, Bruck said his ability to defend his client depends on the death penalty decision.  A trial could be avoided, he said, if Roof pleads guilty and gets life in prison.

Roof already had waived his right to a speedy trial because his lawyers need time to review “vast amounts” of evidence to defend him in a death penalty trial, Bruck said. “He has offered to plead guilty,” said Bruck, who also represented Tsarnaev in the Boston trial. “Everybody knows that. That has been the position since the first day of this case. The only issue is the government’s decision to accept that plea.”

Federal prosecutors have said that they planned to send their case to U.S. Attorney General Loretta Lynch’s office in December. The Justice Department’s Review Committee on Capital Cases typically makes a recommendation to Lynch within 90 days.  Though two representatives of the department’s Civil Rights Division, which typically leads such prosecutions, attended Thursday’s hearing, Richardson answered the judge’s questions. The prosecutor said that many people must give input and express opinions before a decision is made. “We feel like we are much closer,” he said.

I am generally disinclined to urge a prosecutorial charging decision should be rushed.  But I am mystified why and ultimately troubled by the feds needing a year to decide whether to seek a capital charge in a case where there seems to be little doubt about essential offense facts.  Especially with guilt not in question, with a large number of sympathetic victims, and with the offender's ugly motive making the indisputably a hate crime conparable to a form of domestic terrorism, I do not really understand why more than eight weeks, let alone eight months, are needed to decide whether to pursue a capital charge here.  

Of particular significance, if a capital charge was justified against against Dzhokhar Tsarnaev, whose crime slaughtered many fewer individuals and whose was arguably less culpabale than co-conspirator older brother, I have a had time figuring out why a capital charge against Dylann Roof would not be justified.  Indeed, at a time when so many are understandably concerned with whether modern criminal justice systems understand that "black lives matter ," I fear that any decision not to seek a capital charge in this case would create the impression that the nine black lives extinguished in Charleston do not matter as much as just three non-black lives extinguished in Boston.

February 13, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7)

Thursday, February 11, 2016

Notable data on racial and gender dynamics of recent changes in incarceration rates

This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:

After decades of growth, the U.S. imprisonment rate has been declining for the past six years.  Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.

The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent.  These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.

A similar pattern emerges for men, who compose a much larger share of the prison population.  The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000.  As a result, the racial disparity has shrunk by nearly one quarter.

In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.”  Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."

Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.”  Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.

Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.”  Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....

Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.

February 11, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Monday, February 08, 2016

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

February 8, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, January 28, 2016

"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"

The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:

Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.

Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism.  For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women.  Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women.  With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.

January 28, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Thursday, January 21, 2016

"Why hasn’t President Obama granted clemency to a single Latina inmate?"

The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:

Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation.  Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....

On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime.  In total, I spent 17 years behind bars for a crime committed at age 21.  I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.

But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina.  Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population.  They are three times more likely to go to prison than white women.  And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007.  There’s no shortage of worthy Latina candidates for a presidential clemency.

Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston.  Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.

Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing.  Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years.  And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.

President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing.  One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well.  To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.

The War on Drugs should be called the War on Minorities.  Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children.  Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color.  Brown lives matter, too.

January 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4)

Monday, January 18, 2016

Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms

King-Jrs-speech-I-Have-A-Dream-7Long-time readers likely know that I have long stated in this space that I think Martin Luther King, whom we all should take time to honor today, would have been concerned with criminal justice and especially sentencing issues if he had lived into the modern era of mass incarceration.  I also have a tradition of spending MLK Day listening to the full legendary "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. And as I was listening to the speech this year, more than a few lines had a timely resonance in light of on-going efforts to move forward with modern criminal justice reforms. Here are some of the lines catching my ear today:

We have also come to this hallowed spot to remind America of the fierce urgency of now.  This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.  Now is the time to make real the promises of democracy....  Now is the time to make justice a reality for all of God's children.

It would be fatal for the nation to overlook the urgency of the moment.  This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality....

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice.  In the process of gaining our rightful place we must not be guilty of wrongful deeds.  Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline.  We must not allow our creative protest to degenerate into physical violence.  Again and again we must rise to the majestic heights of meeting physical force with soul force.  The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny.  They have come to realize that their freedom is inextricably bound to our freedom.

One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American's freedom.  These beliefs keep me ever engaged in the struggle for an ever-sounder criminal justice system, keep me ever committed to the "fierce urgency of now," and keep me ever eager to encourage all to seek to satisfy the thirst for freedom without "drinking from the cup of bitterness and hatred."  

With the echoes of this remarkable speech still in my head, let me conclude this honoring of Dr. King by providing links to some prior MLK Day posts (from both of my main blogs).  As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).

January 18, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (20)

Thursday, January 14, 2016

Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?

The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development.  Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment.  The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:

Race. Guns. The Death Penalty.

If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South.  The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?

Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses.  In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds.  But questions of race, guns and the death penalty have only intensified nationally since then.  Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.

January 14, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Gun policy and sentencing, Race, Class, and Gender, Second Amendment issues, Who Sentences? | Permalink | Comments (25)

Wednesday, January 06, 2016

Making the case for a "20-Year Maximum for Prison Sentences"

Marc Mauer has this essay in Democracy: A Journal of Ideas which makes the case for a heavy presumption that no prison sentence should be longer than two decades.  Here are excerpts from the piece:

The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane.  To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer.  The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns.  Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around.  Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age.  As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives.  Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population.  Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.

This impact comes at great cost as well.  Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.

Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration.  Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.

Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection.  That’s certainly correct.  But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.

For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term.  A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety.  And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.

While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary.  Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term.  Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.

January 6, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Monday, January 04, 2016

Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity

As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities.  The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?".  Here are a couple of paragraphs setting the table for the case-specific tale:

Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....

Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults.  Some states removed consideration of youth altogether, replacing discretion with compulsory triggers.  By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.

One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless.  Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14.  If convicted, he would automatically be sentenced to life without parole.

By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states.  In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14.  One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.

The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences.  But Louisiana has a higher number of such inmates per capita than any other state.  Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.

These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:

January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, December 29, 2015

Interesting Texas state sentencing realities surrounding the future sentencing of 'Affluenza' teen and his fugitive mother

I tend not to blog too much about sentencing stories that are already seemingly getting too much attention in the traditional media. Ergo, I have not recently posted about the fugitive status of Ethan Couch. Couch is the Texas teen who had 15-minutes of infamy in early 2014 when, after having killed four people in a drunken-driving crash, received a 10-year probation sentence from a juvenile judge who may have been influenced by a defense psychologist's statement that Couch suffered from "affluenza" as a rich kid whose parents did not set any limits on him. But now Couch has been caught while on the run in Mexico with his mother, and this new CNN article highlights some interesting sentence aspects concerning what he and his mother are facing under Texas law.

The CNN piece is headlined "'Affluenza' teen caught, but will he get off easy?", and here are excerpts that spotlight some Texas state sentencing details that strike me as now quite interesting:

Will Ethan Couch, the "affluenza" teen, get off lightly again?, Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years probation for a 2013 drunk driving crash that killed four people.

Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy.

As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday. The district attorney explained the dilemma she faces at a news conference Tuesday:

• Ethan Couch was sentenced as a juvenile and violated his probation as ordered by juvenile court system.

• Under Texas law, Couch, now 18, would be punished for his violation in the juvenile system.

• The maximum sentence that a juvenile judge can dish out for a violation of his juvenile probation is imprisonment in a juvenile facility until Couch turns 19, which is April 11, 2016.

• The DA wants to transfer Couch's sentence to adult court. But since this violation happened in the juvenile system, Couch effectively would start with a clean slate in the adult probation system. That is, the adult court judge could not punish Couch for violations he committed as a juvenile.

• At the time a judge reassesses Couch's probation in the adult system, he has the power to put Couch in adult jail for a maximum of 120 days.

The 120 days in jail won't please those who think Couch deserves worse, but as the facts stand now, it is what the law allows. If Couch ends up on adult probation, Wilson said, and violates it as an adult, he could face up to 40 years in jail. Couch could also find himself behind bars for longer if he is found to have committed any new crimes and is charged and convicted as an adult for those crimes.

Ethan Couch's mother, Tonya Couch, has been charged with hindering the apprehension of a juvenile, and if convicted, faces between 2 and 10 years in jail, Wilson said. It's tough to explain the legal maze that stands to benefit Ethan Couch in the form of a light punishment for violating his probation.

The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."...

Couch is wanted by authorities in Tarrant County, Texas, for allegedly violating his probation. His mother, Tonya, was listed by Texas authorities as a missing person after her son's disappearance, and the authorities said they believed she was assisting him.

A warrant was issued in mid-December for Couch to be taken into custody after his probation officer couldn't reach him. He appears to have dropped off the radar after a video emerged that allegedly showed him at a party where alcohol was being consumed, according to authorities. Couch had been ordered to stay away from drugs and alcohol for the duration of his sentence probation.

His sudden disappearance reignited controversy over his case, which attracted widespread attention after a psychologist testified that Couch, who was 16 at the time of the crash, suffered from "affluenza," describing him as a rich kid whose parents didn't set limits for him. His lawyers argued that his parents should share some of the blame for the crash.

Prosecutors had requested that Couch be sentenced to 20 years behind bars. The juvenile court judge's decision to put him on probation for 10 years instead of sending him to prison outraged victims' families It also prompted many observers to question the term "affluenza," which isn't recognized as a medical condition in any formal sense. G. Dick Miller, the psychologist who said the word at the trial, later said he wished he hadn't used it.  And Couch's lawyers have criticized what they say is the news media's narrow focus on the term in relation to his case.

As some regular readers know, I have long been troubled by and long complained about what I perceive as unduly lenient sentences too often handed out for serious and repeat drunk driving offenses. For that reason (and others), this high-profile sentencing case has always annoyed me because it seemed to me it was more reflective of our society's general tendency to treat drunk driving offenders too leniently than reflective of a tendency to give special breaks to serious crimes committed by rich white kids with lenient parents (though I certainly believe the general impact and import of rich white privilege at sentencing also merits attention).

Prior related posts around Couch's initial sentencing:

December 29, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7)

Wednesday, December 23, 2015

"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"

The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:

In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.  In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty.  Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled.  Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.

Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty.  This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race.  The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.

Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform.  Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.

Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes.  This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation.  Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death.  Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.

December 23, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Thursday, December 10, 2015

The Sentencing Project spotlights major criminal justice reform stories of 2015

The Sentencing Project is an extraordinary public policy group that does some of the most effective and important criminal justice reform research and advocacy.  I received via e-mail this letter from The Sentencing Project about its latest publication and its impressive recent:

This year, we have seen an emerging national consensus for criminal justice reform.  At The Sentencing Project, we’ve been proud to have contributed to this shift, as we have for more than a quarter century. Our 2015 annual newsletter contains highlights of criminal justice reform activities this year, including:
  • A look at the major reform developments in Washington, including the bipartisan Sentencing Reform and Corrections Act, introduced in the Senate this fall
  • Successful reform efforts at the state level, including scaled back bans on public assistance for people with felony drug convictions in Alabama and Texas
We have had a wonderful year, and we look forward to continued success in the year ahead. 

December 10, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Shouldn't the Black Lives Matter movement focus a lot more on ensuring black voters are able to matter?

The question in the title of this post reflects my reaction to two stories I came across this morning.  First, as reported here, readers of The Crime Report in the site's "fifth annual survey of the most significant criminal justice news stories and developments ... [chose] the growing political profile of Black Lives Matter and related organizations as the major development of 2015."  Second, this new Intercept article reports that within "Florida’s black population, the rate of disenfranchisement is high, with nearly a quarter of African-Americans prohibited from voting."  This second piece is headlined "Thanks to Republicans, Nearly a Quarter of Florida's Black Citizens Can't Vote," and here is an excerpt:

Nationwide, nearly 6 million Americans are barred from voting due to felony convictions. Although most states restrict the voting rights of imprisoned felons, Iowa currently is the only one that joins Florida in imposing a lifelong disenfranchisement on ex-felons.  Until three weeks ago, Kentucky also had such a ban, but on the Tuesday before Thanksgiving the state’s outgoing Democratic governor issued an executive order restoring the voting rights of 140,000 nonviolent ex-felons in the state.  The incoming Republican governor has signaled that he may uphold the order.

Meanwhile, the scale of the problem in Florida appears to be growing. The 1.5 million figure dates from 2010; when Republican Gov. Rick Scott took office in 2011, he immediately rolled back a policy of his predecessor, Charlie Crist, who automatically restored the rights of many felony offenders who had completed their sentences.  Scott introduced new rules requiring that people convicted of nonviolent felonies wait five years before they can apply to have their civil rights restored; those convicted of violent and certain more serious felonies must wait seven years to apply.  Under Crist, tens of thousands of felons, on average, won back their right to vote each year. So far, Gov. Scott has restored the rights of just 1,866 ex-felons, while tens of thousands of former inmates are released each year, stripped of their voting rights. As the Scott administration has choked off the one existing channel for former felons seeking suffrage, anecdotal evidence suggests that wait times are getting longer for those petitioning the governor to restore their civil rights. ...

More than 50 years after Congress passed the Voting Rights Act of 1965, Florida is still a place where in a typical public setting — a grocery store or a city block — a sizable portion of the citizens you walk among are likely to be quietly enduring the state’s lifelong disenfranchisement. In neighborhoods like heavily black Parramore, an even larger number of residents will be unable to vote. And Walker says that in his congregation, those who can vote are outnumbered by those who cannot.

“We’ve had older clients call us and say I want to be able to vote again before I die,” said Mathew Higbee, the founding partner of Higbee & Associates, a law firm that helps ex-felons restore their civil rights. “And we say, ‘Right now it’s going to be a six- to 10-year wait before they’ll even look at it,’ and the person says: ‘I’m not sure I’m going to live that long so I’m not even going to try.’”

The Scott administration has asserted that the governor uses the right to vote as an incentive to encourage former offenders to stay out of trouble. “Gov. Scott feels that convicted felons need to have an opportunity to show they can be law-abiding members of society before those rights are restored,” a spokesperson said during the 2012 election season. Yet ex-felons who have stayed clear of the law for more than a decade told me that their petitions to Florida’s clemency board have gone unanswered or have become stalled in a bewildering bureaucracy plagued with a backlog of nearly 11,000 pending applications for civil rights restoration. So far this year, the state has approved only 315 applications. The former felons I spoke with hold little faith in the clemency process. And, perhaps more than anything else, they express a feeling of having been being forgotten by virtually every element of political life in America. (Gov. Scott’s office did not respond to a list of emailed questions.)

I view the 2008 and 2012 election results as dramatic proof that minority populations garner significant political power and can have maximum political and social impact when they turn out in large numbers to vote.  As the title of this post suggests, I think the BLM movemen could and would have the most long-term political and social impact if it were to aggressively challenge felon disenfranchisement laws and other formal and informal barriers to people of color voting in very large numbers in every election.

December 10, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13)

Wednesday, December 02, 2015

Two very different (and very depressing) stories that are distinct imprints of drug war carnage

31-moma_cotc_7.01.02schneiderwarisnothealthyThe famous image uploaded with this post has a message that has stuck with me since I first saw it many decades ago.  And that message, highlighting the unhealthy carnage that always results from war, quickly came to mind as I notices these two distinct must-read stories this morning.  Here are the headlines/links and key paragraphs from both stories:

"Leaked Documents Reveal Dothan Police Department Planted Drugs on Young Black Men For Years, District Attorney Doug Valeska Complicit":

The Alabama Justice Project has obtained documents that reveal a Dothan Police Department’s Internal Affairs investigation was covered up by the district attorney. A group of up to a dozen police officers on a specialized narcotics team were found to have planted drugs and weapons on young black men for years.  They were supervised at the time by Lt. Steve Parrish, current Dothan Police Chief, and Sgt. Andy Hughes, current Asst. Director of Homeland Security for the State of Alabama.  All of the officers reportedly were members of a Neoconfederate organization that the Southern Poverty Law Center labels “racial extremists.”  The group has advocated for blacks to return to Africa, published that the civil rights movement is really a Jewish conspiracy, and that blacks have lower IQ’s.  Both Parrish and Hughes held leadership positions in the group and are pictured above holding a confederate battle flag at one of the club’s secret meetings.

The documents shared reveal that the internal affairs investigation was covered up to protect the aforementioned officers’ law enforcement careers and keep them from being criminally prosecuted.  Several long term Dothan law enforcement officers, all part of an original group that initiated the investigation, believe the public has a right to know that the Dothan Police Department, and District Attorney Doug Valeska, targeted young black men by planting drugs and weapons on them over a decade.  Most of the young men were prosecuted, many sentenced to prison, and some are still in prison. Many of the officers involved were subsequently promoted and are in leadership positions in law enforcement. They hope the mood of the country is one that demands action and that the US Department of Justice will intervene.

"How Big Pharma Gave America Its Heroin Problem: OxyContin, designed for cancer pain relief, became the drug prescribed for back and tooth aches":

As addiction specialists look back on the current heroin addiction crisis — which the U.S. Center for Disease Control and Prevention calls the "worst drug overdose epidemic in [US] history" — most agree that the whole operation started out as the sort of marketing scheme Don Draper might have dreamed up. "[The marketing effort for opioid sales] was a promotional campaign unlike we have ever really seen," says Dr. Andrew Kolodny, the chief medical officer for the Phoenix House treatment centers and co-founder of Physicians for Responsible Opioid Prescribing. "Drug reps were going to family care doctors, and insisting that OxyContin had no real risks — only benefits. What they were selling was the idea that pain was a disease, and not a symptom."...

What followed was not all that surprising. Many grew addicted to the opioids, and when the prescriptions ran out, they turned to heroin because of its availability and relatively low cost. The Mexican drug cartels saw this trend and promptly began growing their opium plants, which they consciously made purer and less expensive.  And those cartels targeted the suburbs, where those introductory OxyContin prescriptions were being filled — and where the money was.

According to the National Institute on Drug Abuse, some 2,000 people died in 2001 from heroin overdose in the U.S. By 2013, that number had climbed to about 8,000. Coinciding with that rise: the number of opioid deaths caused by prescription drugs like OxyContin.  About 6,000 deaths from opioid prescription drug overdose in 2001 spiked to roughly 15,000 by 2013.  Over two million Americans are currently addicted to opioids, according to the National Survey on Drug Use and Health, and 467,000 are addicted to heroin.  What makes those numbers even more startling: Four out of five heroin users reportedly started out on opioids.

The issues and problems discussed in both theses stories are, obviously, about a whole lot more than just the impact of criminal prohibition and intense criminal prosecutions of persons involved with certain controlled substances. Nevertheless, stories like these remind me that the long-run "war on drugs," like so many other wars, has produced an array of unexpected consequences and collateral damages that must should not be overlooked whether we consider whether and how to continue to use massive criminal justice systems to deal with drug use and abuse.

December 2, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, November 27, 2015

"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"

The title of this post is the title of this notable new paper by John Major Eason available via SSRN.  Here is the abstract:

The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color.  Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.

Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods.  For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting.  Furthermore, later in the boom, prison building protected towns against additional economic decline.  Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation.  Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.

November 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, November 25, 2015

Intriguing findings on race and criminal justice issues from 2015 American Values Survey

Screen-Shot-2015-11-11-at-1.18.33-PM-640x826I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015."  The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System."  Here are just a few highlights from this discussion:

Most Americans do not believe that police officers treat blacks and other minorities the same as whites.  Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....  

White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree.  In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....

Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same.  The views of political independents closely mirror the general public....

Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police.  Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally.  In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).

There are stark racial and ethnic divisions in views about the fairness of the criminal justice system.  White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree.  In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.

White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class.  White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree.  In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.

Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree.  The views of independents are identical to the views of Americans overall....

When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty.  Views about the death penalty have held roughly steady since 2012 when the public was closely divided.

Partisan attitudes on this question are mirror opposites.  Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.

Americans are also closely divided over whether there are racial disparities in death penalty sentencing.  A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree.  American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.

American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines.  More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime.  A majority (53%) of white Americans disagree.  White Americans’ views on this question differ significantly by social class.  A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans.  A majority (58%) of white working-class Americans say that this is not the case.

Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty.  Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree.  Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty.  Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).

There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder.  A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.

November 25, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Thursday, November 19, 2015

"States of Women's Incarceration: The Global Context"

The title of this post is the title of this effective new on-line report by the Prison Policy Initiative.  Here is how it gets started:

We already know that when it comes to incarceration, the United States is truly exceptional.  As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men.  As a result, women's incarceration rates are overshadowed and often lost in the data.  As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.

Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states.  Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself.  The next 17 jurisdictions are also American states.

Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.  Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.

Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages.  New Hampshire is on par with Russia, and New York with Rwanda.

Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country.  In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.

November 19, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, November 18, 2015

Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect"

As reported in this Washington Post piece, in the course of testifying before Congress yesterday, Attorney General Loretta Lynch indicated there was no data to support the notion that an increase in crime can and should be attributed to police officers pulling back from their duties in the wake of conversies over excessive use of police force.  Here are the details:

Attorney General Loretta Lynch said Tuesday that there is “no data” to support the idea that the police are not aggressively protecting communities since the increased use of videos and the focus on police tactics after the death of Michael Brown, something referred to as “the Ferguson effect.”

In testimony during her first appearance before the House Judiciary Committee since her confirmation, Lynch agreed with President Obama and her predecessor Eric H. Holder Jr. and pushed back against comments made by FBI Director James B. Comey and Chuck Rosenberg, the acting administrator of the Drug Enforcement Administration, both of whom report to her.

“While certainly there might be anecdotal evidence there, as all have noted, there’s no data to support it, and what I have seen in my travels across this country is the dedication, the commitment and the resolve of our brave men and women in law enforcement to improving policing, to embracing the 21st Century Task Force recommendations, and to continuing to have a dialogue that makes our country safer for all,” Lynch said.

In two recent speeches, at the University of Chicago Law School on Oct. 23 and at a speech to the International Association of Chiefs of Police three days later, Comey said that “viral videos” of police activity had sent a “chill wind” through law enforcement and he suggested a link between this year’s spike in crime in some major U.S. cities and the growing protests alleging excessive use of force by police. Rosenberg said he agreed with Comey and that he had “heard the same thing” from law enforcement officials....

Lynch’s comments on the “Ferguson effect” came after Rep. John Conyers Jr. (D-Mich.) alluded to Comey and Rosenberg by saying that “some from within your department” have suggested that dialogue on police and community relations “have somehow reduced the willingness of some police officers to perform their duties.”

“Does our conversations about civil rights and the appropriate use of force by police somehow make us less safe?” Conyers asked Lynch. “Our discussion about civil rights, and the appropriate use of force and all police tactics can only serve to make all of us, community members and police officers, safer,” Lynch replied. “In my discussions with police officers around the country, I have found a positive engagement on these issues.”

In addition to being pleased to hear AG Lynch suggest hard data rather than anecdote should inform discussions about a "Ferguson Effect" impact police activities, the focus on data in this context got me thinking about the important research done by Tom Tyler and Jeffrey Fagan and others about the connections between the perceived legitimacy and fairness of the law and its enforcers and the willingness of persons to comply with the law. This short piece from DOJ's Office of Justice Programs, titled "Procedural Justice: Increasing Trust to Decrease Crime," spotlights and summarizes some of this research:

A wealth of empirical evidence shows that when police are at their best — when they are neutral and unbiased; treat those with whom they interact with respect and dignity; and give folks a chance to explain their side of the story — they can actually bring out the qualities they want to see in their communities. People who are policed in this way are more likely to view the police as legitimate. And people who view the police as legitimate are more likely to obey the law, cooperate with authorities and engage positively in their communities.... [N]umerous empirical studies persuasively demonstrate that perceptions of legitimacy have a greater impact on people’s compliance with the law than their fear of formal sanctions.

The bad news is, if people experience an interaction with a police officer that suggests to them the police are untrustworthy, their ties with law and their sense of its legitimacy weaken, which may lead to a lack of cooperation with the police and more law breaking in the future. Put another way, unnecessarily aggressive policing brings out the worst in the people toward whom it is directed.

The factors that contribute most to people viewing a police stop as negative are whether the police threaten or use force arbitrarily, inconsistently or in ways that suggest a lack of professionalism or the existence of prejudice, or if police are humiliating or disrespectful. Notably, whether the stop results in an arrest is less important for purposes of perceived legitimacy than how that stop is carried out....

And it’s not just the stops of particular individuals that matter. People also develop their sense of police legitimacy from what they hear and see from their neighbors, family members and friends. Picking out some individuals and treating them fairly won’t be sufficient, if those same people witness and hear about unfairness directed toward others in their community. Every interaction the police have communicates information about the legal system. Moreover, this message resonates beyond the person who is dealing with the police, because others in the neighborhood hear about it, as do that person’s friends and family.

Notably, right around the time of all the unrest in Feguson, Tom Tyler authored this Huffington Post piece discussing his research which ends this way (with link from source and my emphsasis added):

Jeffrey Fagan and I recently studied young men in New York City and found that those who mistrusted the police were twice as likely to be engaged in criminal activity. Second they increase hostility and lead to a greater likelihood of conflict when the police deal with community members on the street and when the community reacts to police actions such as the Brown shooting. Such anger produces precisely the type of unrest so visible in Ferguson. As so many of the marchers in that community have suggested, if people do not experience justice when they deal with the police, there will be no peace.

This research has me thinking and fearing that the increase in crime being experienced in many American cities in 2015 may be a result not of decreased police activity as a result of Feguson, but of increased mistrust of police among those already likely to have deep concerns about the legitimacy of our criminal laws.

November 18, 2015 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Monday, November 16, 2015

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"

The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.”  One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP).  The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP.  Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses.  There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences.  The author conducted a detailed study of every inmate sentenced to LWOP in eight states.  In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes.  Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment.  Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

November 15, 2015 in Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6)

Wednesday, November 11, 2015

"What Mass Incarceration Looks Like for Juveniles"

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

After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City.  It was a rude awakening.

The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time.  In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells.  Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.

My staff and I quickly uncovered more abuses.  Staff members were sexually harassing the kids and one another.  One of my corrections officers married a youth shortly after the boy was released from custody.  A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later.  The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.

These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites.  In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....

In New York, where I ran the probation department, I didn’t witness the same hair­raising institutional abuse, mostly because we didn’t run any facilities.  But probation officers reported that they routinely re­incarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account.  As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington.  When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.

Two things surprised me about my experiences on the inside.  First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....

The second major surprise was how much I liked many of my staff members.  I charged into my job with an air of moral superiority.  Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves.  But it was far more complicated.  Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs.  After all, our facility housed only about 200 young people, roughly the size of a small middle school.

Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety.  They attended our football games and plays and cheered the youths on, sitting in the stands with their parents.  They were the good guys, rendered complicit by years in a corrupt system....

From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime­-control efforts.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Sunday, November 01, 2015

"In Heroin Crisis, White Families Seek Gentler War on Drugs"

The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought.  Here are excerpts from the piece:

The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.

“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.

Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.

The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.

Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.

And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.

“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African­-Americans for a more empathetic approach were largely ignored.  “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools.  “But,” she added, “one cannot help notice that had this compassion existed for African­-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

November 1, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Friday, October 30, 2015

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Flip-flop-Hillary-Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Thursday, October 22, 2015

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

Tuesday, October 20, 2015

"Dismantling the School-to-Prison Pipeline: Tools for Change"

The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.

This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color.  But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement.  Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline.  The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, October 17, 2015

Remarkable Fusion series on "Prison Kids"

Pk_bannerThe multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:  

October 17, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, October 13, 2015

"Can Architecture Cure Crime?"

The question in the title of this post is the headline of this interesting Ozy article discussing a novel prison design for a women's prison in southern California.

The campus is spacious and green, with a grassy amphitheater and palm trees, volleyball nets, even a yoga studio.  Inside, the earthy tones continue: abundant natural light, murals of waves crashing into the cliffside.  From his second-floor office, Edwin Schroeder reflects on his view: “You don’t get that gut-dropping feeling anymore.”

Schroeder isn’t a professor and the vista isn’t of a liberal arts college.  He runs a women’s jail, but one that emphasizes the avant-garde over security guards.  “We’re not here to punish,” says Schroeder, which isn’t exactly a line you’d expect from a gatekeeper.  But this San Diego County jail, which houses everyone from petty criminals to accused murderers and was once known for its sickening decrepitude, is at the forefront of a new and, of course, controversial movement in prison design, one that manifests a counterintuitive idea: You could build a lockup so pleasant and thoughtfully devised that inmates would never come back....

It’s a lofty goal. And while it remains to be seen whether administrators will succeed at rebuilding lives, few would doubt that they’ve built a one-of-a-kind facility.  This will surely raise hackles among tough-on-crime folks, but this isn’t one of those pay-to-stay country club prisons for stock brokers.  It’s more of a social experiment.  In an era when more women than ever are imprisoned — the female incarcerated population in the U.S. shot up nearly tenfold between 1980 and 2010, to 205,000 — Las Colinas is testing a new theory: by treating inmates as autonomous, responsible human beings, they might actually behave like autonomous, responsible human beings.  Some would say it’s taking a woman’s touch.  There’s not a barbed wire in sight (they’re there, just not visible), and long outdoor walkways provide a feeling of freedom.  Thus, when a woman needs medical attention, she walks across that green campus to a waiting room that looks like one in any other doctor’s office.  Even booking looks less like a holding room and more like a health clinic, with separate walk-up windows for arrestees to take care of various intake procedures.

Critics will argue that comfy prisons have little deterrent effect. But the design, proponents say, is gender responsive.  For decades, conventional wisdom was that the only difference between a men’s prison and a women’s is that one has urinals.  But there are countless differences between the sexes, including, for instance, that women prefer communal spaces whereas guys value solitude.  The Bureau of Justice Statistics has found that 75 percent of women in the corrections system have suffered abuse over their lifetimes, and the dorms at Las Colinas are sensitive to that: The lowest-level offenders sleep in open-concept rooms with shoulder-height dividers, instead of individual cells. Recent research reveals that building designs, floor plans and overall ambiance affect prisoner interactions and their relationships with staff.  And as it turns out, one year in, the sheriff’s department already reports a decline in incidents of inmate-on-inmate and inmate-on-staff violence.  “Almost every sense of well-being is affected by environment,” says Barb Toews, a justice professor at the University of Washington Tacoma who studies incarcerated women....

Even if this little social experiment is successful, it will be difficult to replicate. Although there wasn’t much political bickering within San Diego over the cushy living quarters for its criminals, there likely would be elsewhere.  Las Colinas, which cost $221 million to build, is expensive, and the staffing intensive; the programmatic efforts require even more hands on deck.  And, to be clear, less than half the population gets to take advantage of the open campus; violent and other serious offenders are still housed in more traditional cell blocks — though they, too, are painted in calming colors.  Meanwhile, plenty of architects believe they shouldn’t be putting resources toward locking people away at all, on the grounds that doing so strengthens the prison-industrial complex....

Sure enough, an unholy number of variables would have to align for Las Colinas to succeed in changing its prisoners’ lives.  But officials believe failing at something different beats failing at the same thing, over and over.  “If it doesn’t work, we haven’t lost anything,” Schroeder says. “Why wouldn’t we go for it?”

October 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Friday, October 02, 2015

"What happens when Americans in prison come home?"

The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:

We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester.  We asked them: what did prison do, or undo, in you?  What do you see now that you didn’t see then?  And what don’t we know about you?

It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s.  Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison.  Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too.  As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?

Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

"How to Fight Modern-Day Debtors’ Prisons? Sue the Courts."

EJUL-slide-3The title of this post is the headline of this Marshall Project report on recent litigation brought by Alex Karakatsanis and his Equal Justice Under Law non-profit. Here is the start of the report (with links from original):

A young civil-rights attorney in Washington, D.C., is suing courts across the country for jailing defendants unable to afford their bail, court fines, and probation fees.  As a result, cities in Alabama, Missouri, Mississippi, and Louisiana have recently done away with bail for misdemeanors and traffic violations.

The lawyer, 31-year-old Alec Karakatsanis, has now filed a federal lawsuit against Rutherford County, Tenn. and the private company it contracts with to collect court debts. According to the lawsuit, that company, Providence Community Corrections, ran “an extortion scheme” that “conspired to extract as much money as possible” from people who were threatened with jail time if they couldn’t pay court fees and fines.

PCC is “user funded,” which means the company does not charge the county for its services but depends solely on fees paid for by people on probation.  Some of those fees include “supervision fees,” costs for drug tests and classes, and even a $25 fee for those applying for fee reductions. Before Rutherford County outsourced its probation services to PCC in 1996, the county was only collecting a fraction of fees, PCC State Director Sean Hollis told the Daily News Journal in 2014.

PCC collected over $17 million from probationers in Rutherford County between 2009 and 2014, according to the Daily News Journal. Rutherford County Judge Ben Hall McFarlin told the paper at that time: “The county didn't pay for anyone to get that money," adding that he had never sentenced anyone to jail if their only violation was a failure to pay. "I don't see where the taxpayers would disagree with that.”

The lawsuit was filed on behalf of seven plaintiffs and alleges that indigent defendants in Rutherford County have lost their jobs, houses, cars, and even sold their own blood plasma to make payments and avoid jail time.

“Everything about this scheme is in flagrant violation of U.S. constitutional law, federal law, and even specific Tennessee law,” Karakatsanis told The Marshall Project. In Tennessee, it’s illegal to imprison a person over court debt.  

The suit was brought under a federal anti-corruption law accusing PCC and Rutherford County of operating a “racketeering enterprise” that misuses “the probation supervision process for profit.” A spokesman for PCC, Jeff Hahn, wrote in a statement that PCC's "mission is to encourage people to complete their probation successfully per the terms set by the courts." He added that "in each of the states we serve, we steadfastly comply with the laws governing the probation system."

It’s just the latest salvo from Karakatsanis, who helped start Equal Justice Under Law, a nonprofit civil-rights organization. Karakatsanis and co-founder Phil Telfeyan, 32, started their organization in 2014 with a grant from their alma mater, Harvard Law School, in order to challenge inequalities in the criminal justice system. The organization often works in partnership with local attorneys and nonprofits.

In November 2014, the city of Montgomery, Ala., agreed to terminate its contract with a private probation company as part of a settlement with Equal Justice Under Law.  The lawsuit alleged that indigent people in Montgomery were being jailed over their inability to pay their court debts.  Similar lawsuits were filed in 2015 against municipal courts in Ferguson, Mo., Jennings, Mo. and New Orleans, La., although those cities do not rely on private probation companies to collect debts.

Equal Justice Under Law has also sued six jurisdictions over their bail systems, and all six no longer require defendants to pay bail as a condition of their release. The organization filed a seventh lawsuit, in Calhoun, Ga., in early September.

October 2, 2015 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, September 30, 2015

Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"

Secretary of Education Arne Duncan today gave this notable speech at the National Press Club.  The lengthy speech covers a lot of ground, but it is especially focused on the "linkage between education, or a lack thereof, and incarceration" and calls upon government to reorient funding to prioritized education over criminalization. Here are excerpts from the speech, which merits a read in full:

I want to lay out an idea today that will strike some as improbable or impractical, but which I think is essential.  It's about setting a different direction as a society, a different priority — one that says we believe in great teaching early in our kids' lives, rather than courts, jails and prisons later....

The bet we're making now is clear.  In the last three decades, state and local correctional spending in this country has increased almost twice as fast as spending on elementary and secondary education.  Ask yourself, "What does that say about what we believe?"

Leaders at the state and local levels have the power to change that — to place a bet on getting it right with kids from the start, and on the power of great teaching in particular.

I'm not pretending for a second that schools can do this alone — that they can replace efforts to deal with poverty, hunger, homelessness, or other ills that affect our young people.  But the facts about the impact of great teaching are too powerful to ignore....

The linkage between education, or a lack thereof, and incarceration is powerful.  More than two-thirds of state prison inmates are high school dropouts.  And an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed.

Today, our schools suspend roughly three and a half million kids a year, and refer a quarter of a million children to the police each year.  And the patterns are even more troubling for children of color — particularly boys — and for students with disabilities.

We cannot lay our incarceration crisis at the door of our schools.  But we have to do our part to end the school to prison pipeline.  That's going to force us to have difficult conversations about race, which I'll get to in a moment.

But I want to start by talking about bold new steps our states and cities can take to get great teachers in front of our neediest kids.  It's hardly a secret that it's challenging to recruit and keep fantastic teachers in the schools where the needs are greatest.  The rewards of that work are extraordinary — but it's an incredibly hard job.

So here's an idea for how you put a new emphasis on schools rather than jails.  If our states and localities took just half the people convicted of nonviolent crimes and found paths for them other than incarceration, they would save upwards of $15 billion a year.

If they reinvested that money into paying the teachers who are working in our highest-need schools and communities — they could provide a 50 percent average salary increase to every single one of them.  Specifically, if you focused on the 20 percent of schools with the highest poverty rates in each state, that would give you 17,640 schools — and the money would go far enough to increase salaries by at least 50 percent.

I've long said great teachers deserve to be paid far more.  With a move like this, we'd not just make a bet on education over incarceration, we'd signal the beginning of a long-range effort to pay our nation's teachers what they are worth.  That sort of investment wouldn't just make teachers and struggling communities feel more valued.  It would have ripple effects on our economy and our civic life. ...

There are lots of ways to go about this, and ultimately, local leaders and educators will know what's best for their community.  But the bottom line is that we must do more to ensure that more strong teachers go to our toughest schools.

Right now, in far too many places, glaring and unconscionable funding gaps create all the wrong incentives.  To take just one example — and there are many — the Ferguson-Florissant school district in Missouri spends about $9,000 per student. Eleven miles away, in Clayton, funding is about double, at $18,000 per student. How is that a plan to give kids a fair start?...

Let's invest more in the adults who have dedicated their professional careers to helping young people reach their full potential.  And let's place a new emphasis on our young people as contributors to a stronger society, not inmates to pay for and warehouse.

I'm not naïve about doing all of this overnight.  And for those already in the system, we can't just walk away from them — we also have to invest in education, career training, treatment, and support programs that help young people who are already involved in the criminal justice system become contributing members of our society.  That's why we are starting the Second Chance Pell program, to give those who are incarcerated a better chance at going to college.

To be totally clear, I'll repeat that we are talking about savings that come from alternative paths that involve only nonviolent offenders.  This is not about being soft on dangerous criminals — this is about finding ways, consistent with wise criminal justice policies, to reapportion our resources so we prevent crime in the first place....

 I'm convinced that making a historic bet on getting it right from the start would pay massive returns for our families, our communities, our society and our nation's economy. According to a 2009 McKinsey report, the achievement gap between us and other top-performing nations is depriving the U.S. economy of more than $2 trillion in economic output every year.

A separate study found that a 10 percent increase in high school graduation rates would reduce murder and assault arrest rates by approximately 20 percent.  And a one percent increase in male graduation rates would save up to $1.4 billion in the social costs of incarceration.  So you don't have to be a liberal romantic to like the idea of investing up front in our kids.  A hard-nosed look at the bottom line will take you to the same place.

I recognize that what I've just laid before you is ambitious.  But, if we're serious about eliminating the "school to prison pipeline," a shift in funding is only part of what we need to do. In truth, there's a lot more we need to get right....

Taking the essential steps to expand what we know works in education should be a no-brainer.  But there's more to it than just budgets and policies.  Perhaps the hardest step of all is taking an unsparing look at our own attitudes and decisions, and the ways they are tied to race and class. In the wake of Ferguson, Baltimore and elsewhere, this has become a central discussion for many in America, and rightly so — if belatedly.  Those of us in education cannot afford to sit back.

Let's recognize, up front, that this is among the hardest conversations we can have in education.  People enter this field out of love for students and the genuine desire to see them excel and thrive.  Yet we also know that suspension, expulsion and expectations for learning track too closely with race and class.

As the author Ta-Nehisi Coates recently pointed out, our high rates of incarceration, our high numbers of high school dropouts, and our high rates of child poverty are not unrelated problems....

It's difficult work, challenging centuries of institutionalized racism and class inequality. But I firmly believe a hard look at ourselves is an essential part of becoming the nation we strive to be — one of liberty and opportunity, regardless of the circumstances of your birth.

September 30, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Georgia finally completes execution of female murderer

As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.

The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.

In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.

Shortly thereafter, the board announced that it would not stop the execution.

The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.

"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....

Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."

September 30, 2015 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 29, 2015

New papers looking closely (and differently) at offender-based sentencing considerations

I just noticed via SSRN these two new papers that take very different approaches to considering offender-based factors at sentencing:

September 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Monday, September 28, 2015

"The Real Roots of ’70s Drug Laws"

The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner.  Here are excerpts:

The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice.  But many more still die at the hands of black neighbors instead of the police.  Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.

That’s because some consider talk of black­-on-­black violence a distraction.  This is a natural outgrowth of the view that the over­-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white­-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement.  But this is too convenient a narrative.  It erases the crucial role that African-­Americans themselves played in the development of the current criminal justice system.

Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities.  It is, in part, the unintended consequence of African-­Americans’ own hard­fought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.

The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives.  During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods.  After the Harlem riots of 1964 (which erupted following the shooting of a 15-­year-­old black male by a white cop), polls showed that many African­-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....

In 1969, the Manhattan branch of the N.A.A.C.P. issued an anti­crime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.

Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three­-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people.  Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...

Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change.  But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects.  Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half­-century of social and economic decline.  But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.

But long­term strategies can’t provide immediate relief from the daily horrors of urban crime.  In the short run, we need the police.  We need aggressive law enforcement methods that do not harass or brutalize the innocent.  Ultimately, though, we can’t eliminate the propensity to over­police and over­imprison unless we curb the disorder and chaos that threaten and destroy urban black lives.  As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, September 25, 2015

Duchess of Cambridge creates surprising Princess prison diaries in UK

Kate-Middleton-Prison-VisitAs reported in this article from across the pond, headlined "Kate Middleton meets killers on secret visit to high security women's jail," the world's most famous princess made a notable field trip today. Here are the details:

The Duchess of Cambridge has been behind bars today meeting inmates in a women's prison. Kate visited HMP Send in Woking, Surrey to learn how it is helping some of its 282 inmates overcome drug and alcohol addiction to rebuild their lives.

Arriving this morning the royal mum spent 90 minutes inside the high security prison where many are serving life sentences for murder. HMP Send's notable prisoners have included road rage killer Tracie Andrews who served 14 years for murdering her fiancee in December 1996 and the Duchess of York's former dresser Jane Andrews who also spent 14 years in prison for murdering her boyfriend in 2000.

Dressed smartly and showing off her new-look fringe, Kate, 33, was greeted by the governor before meeting prisoners hearing their stories of addiction and crime.  She also met ex-inmates and heard how the programme helped them turn their lives around.

Kensington Palace said in a statement:  “The visit reflects the Duchess's interest in learning how organisations support people living with substance misuse issues, and the impact of addiction within the wider family network.  “As Patron of addiction charity, Action on Addiction, she is aware that addictions lie at the heart of so many social issues and the destructive role that substance misuse plays in vulnerable people's and communities' lives.”

Kate was viewing the work carried out by the Rehabilitation of Addicted Prisoners Trust (RAPt) which operates in HMP Send and 25 other prisons across the country.  Their treatment programme at HMP Send is the only one of its kind for women in Britain.  It is tailored to support female prisoners with addiction who have often experienced deep trauma, focusing on building healthy relationships with partners, children and other family members after the often traumatic and damaging impact of addiction and crime.

September 25, 2015 in Prisons and prisoners, Race, Class, and Gender, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, September 24, 2015

Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing

This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:

Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.

Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.

Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.

Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.

The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”

The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.

The referenced appellate court certification opinion is available at this link, and it begins this way:

We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.

September 24, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections | Permalink | Comments (3)

Monday, September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Sunday, September 20, 2015

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)