Friday, January 30, 2015
Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting
As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated. The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:
Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.
The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.
In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.
The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.
The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.
In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.
Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.
The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said. "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."
I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.
Friday, January 23, 2015
"Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights"
On the surface, crime and punishment appear to be unsophisticated matters. After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans. The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States. Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men. But there are solutions to rectify this problem.
To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.
What’s more, the history of racism, which is also linked to the history of perceptions of race and crime, has led society to choose to fight racial economic equality using the criminal justice system (i.e., incarceration) instead of choosing to reduce racial disparities through consistent investments in social programs (such as education, job training, and employment, which have greater public benefits), as King (1968) lobbied for before his assassination. In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.
At the same time, many communities attempted to benefit economically from mass incarceration by using prisons as a strategy for economic growth, making the incarceration system eerily similar to the system of slavery. Given all of the documented social and economic costs of mass incarceration (e.g., inferior labor market opportunities, increases in the racial disparity in HIV/AIDS, destruction of the family unit), it can be concluded that it has helped to maintain the economic hierarchy, predicated on race, in the United States. In order to undo the damage that has been done, and in order to move beyond our racial past, we must as a nation reeducate ourselves about race; and then, as a society, commit to investing in social programs targeted toward at-risk youth. We must also ensure diversity in criminal justice professionals in order to achieve the economic equality that King fought for prior to his death. Although mass incarceration policies have recently received a great deal of attention (due to incarceration becoming prohibitively costly), failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.
Thursday, January 22, 2015
"Heroin addiction sent me to prison. White privilege got me out and to the Ivy League."
The provocative title of this post is the headline of this provocative Washington Post piece authored by Keri Blakinger. Here is how it gets started (with links from the original):
I was a senior at Cornell University when I was arrested for heroin possession. As an addict — a condition that began during a deep depression — I was muddling my way through classes and doing many things I would come to regret, including selling drugs to pay for my own habit. I even began dating a man with big-time drug connections that put me around large amounts of heroin. When police arrested me in 2010, I was carrying six ounces, an amount they valued at $50,000 — enough to put me in prison for up to 10 years. Cornell suspended me indefinitely and banned me from campus. I had descended from a Dean’s List student to a felon.
But instead of a decade behind bars and a life grasping for the puny opportunities America affords some ex-convicts, I got a second chance. In a plea deal, I received a sentence of 2½ years. After leaving prison, I soon got a job as a reporter at a local newspaper. Then Cornell allowed me to start taking classes again, and I graduated last month. What made my quick rebound possible?
I am white.
Second chances don’t come easily to people of color in the United States. But when you are white, society offers routes to rebuild your life. When found guilty of a drug crime, white people receive shorter sentences than black people. And even after prison, white men fare better in the job market than black men with identical criminal records.
It was prison that clued me in to just how much I benefit from systemic racism in our society. Until then, I hadn’t thought much about white privilege, which is exactly how privilege works — as a white person, I could ignore it. But sitting behind bars, I saw how privilege touches almost everything, especially the penal system.
Thursday, January 15, 2015
Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation
I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author. Here is how the piece starts and some of my favorite excerpts:
Are liberals as responsible for the prison boom as conservatives?
That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America. It has begun to attract reviews and debate from across the political spectrum. Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment. She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone. Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP. These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias. But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.
Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....
Q: Your book aims to expose the liberal roots of the prison boom. But Democrats did not create the Willie Horton ad. It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors. Is it important to distinguish between the different motives of conservatives and liberals?
A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot. I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record. It doesn’t make the brutality of living in a cage any less violent.
Kennedy promulgated this idea of sentencing guidelines. It was his baby. He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral. They became guidelines that were rigid and more carceral. And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.” Not once did he introduce legislation to reform the guidelines. Not once did he apologize or try to change it. When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.
Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime. Can you talk about Biden’s history?
A: He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences. Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up. There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly. But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.
That 1994 act is overwhelmingly, incredibly punitive. One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone. It provided political coverage for everyone who wanted to vote for it. There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act. The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.
Prior related post:
January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, January 09, 2015
"How White Liberals Used Civil Rights to Create More Prisons"
The potent title of this post is the potent title of this new piece at The Nation by Willie Osterweil, which serves as a review of sorts of a book by historian Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Both the full Nation article and the book it discusses are worth attention, and here are excerpts from the article:
In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law. The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society. More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?
The common-sense answer is that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions. This isn’t wrong, or not exactly. Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (a k a sentencing “guidelines”) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders. It was one of the pivotal moments in the production of the prison-industrial complex (PIC) — the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit. But, as Murakawa painstakingly demonstrates, the Sentencing Reform Act has a “liberal core,” and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.
This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules. If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes. But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation....
Murakawa does not simply collapse liberal and conservative into each other. She makes an important distinction between postwar racial-liberalism and postwar racial-conservatism. Race conservatives are those who don’t believe that racism is real, but that race is: they believe that black people are innately inferior to whites, and attribute their place in society to a failure of black culture. This race-conservatism is what is broadly considered “real racism.”
Race-liberalism, on the other hand, remains the dominant — and usually unspoken — American framework for understanding race. Built on the premise that racism is real but manifests as the prejudice of white people, race-liberals argue that individuals’ racism can corrupt institutions and bias them against black people. That bias damages black psyches as well as black people’s economic and social prospects. Race-liberals believe that training, laws, stricter rules and oversight can eliminate prejudice and render institutions “colorblind.” Since it is biased treatment that damages black prospects, then this fix — civil rights — applied to all of society’s institutions, would eventually end racial disparity.
Both race-liberals and race-conservatives base their theories on one disastrous assumption: black people naturally produce crime. For race-conservatives, black people are innately, genetically criminal, full stop. For race-liberals, the psychological, economic and social damage of prejudice makes black people “lash out” violently and criminally–either in the form of individual criminal acts or, as the black freedom movement begins in earnest, as protests and rioting. Under both schema, however, the reason society must achieve racial equality is because equality will eliminate black crime.
Wednesday, January 07, 2015
"How to reduce poverty and improve race relations by rethinking our justice system"
The title of this post is the subheadline of this notable Politico commentary authored by Charles Koch and Mark Holden. Here are excerpts:
As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all, but most profoundly harms our disadvantaged citizens.
Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.
How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer — first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration....
We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986, remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.” African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues.
According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”...
Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society — especially for the disadvantaged.
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Big talk from Charles Koch about big (money) criminal justice reform efforts
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incerceration
Congressional Black Caucus saying it will focus on criminal justice reform
I expect the next few years to be dynamic with respect to federal criminal justice reform, and this inside-the-Beltway story provides another reason why:
The Congressional Black Caucus will focus on criminal justice reform, U.S. Rep. G.K. Butterfield of North Carolina said in a speech on Tuesday at a ceremony where he was sworn in as the group’s new chairman. “There is a well-founded mistrust between the African American community and law enforcement officers,” Butterfield said in a speech. “The statistics are clear. Video clips are clear.
“We recognize that the overwhelming majority of law enforcement officers put their lives on the line every day to protect our communities. Unfortunately, there are some officers who abuse the sacred responsibility to protect and serve by using excessive, and sometimes deadly force when a less severe response is warranted,” the North Carolina Democrat said. “The CBC will seek legislative action to reverse this terrible trend.”
The Congressional Black Caucus also would work to try to change sentencing laws, hold prosecutors to ethical standards, and ensure that defendants have competent lawyers, Butterfield added....
The Congressional Black Caucus welcomed five new members at the ceremony where Butterfield spoke, including one Republican, conservative Mia Love of Utah, and Democratic Reps. Alma Adams of North Carolina, Bonnie Watson Coleman of New Jersey, Brenda Lawrence of Michigan and Stacey Plaskett of the U.S. Virgin Islands.
As I noted in this prior post, Mia Love, the first black Republican woman ever elected to Congress, could be an especially important voice on these issues if she embraces the CBC's commitment to making these matters a priority for reforms.
A few prior related posts:
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- What does Rep-elect Mia Love, the new most-interesting person in Congress, think about sentencing reform and the federal drug war?
Tuesday, January 06, 2015
GOP apparently eager to have Eric Holder as AG for at least one more month
The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee." In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January at the earliest.
I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years. But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.
So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer.
Monday, January 05, 2015
"Is Obama Finally Ready To Dial Back The War On Drugs?"
The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:
Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term. Safely reelected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective. As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years. Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:
Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting statelicensed growers and retailers. Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...
Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.
Sentencing Reform. Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums. Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....
Clemency. After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions. Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations. Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....
A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division. A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration. The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.
If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence. He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress. And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....
If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization. Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.
This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.
On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.
On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.
January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, December 31, 2014
"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"
The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.
The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.
Monday, December 29, 2014
Big talk from Charles Koch about big (money) criminal justice reform efforts
This lengthy article from the Wichita Eagle is garnering attention because of its report on who is now paying a lot of attention to criminal justice reform. The piece is headlined "Charles Koch’s views on criminal justice system just may surprise you," and here are excerpts:
Of all the contentious history between Koch Industries and the U.S. government, the Corpus Christi, Texas, case from 1995 is the one that Charles Koch remembers most vividly. A federal grand jury indicted his company on 97 felonies involving alleged environmental crimes at an oil refinery.
Prosecutors dropped all but one of the charges six years later, after the company spent tens of millions of dollars defending itself. Ultimately, Koch Petroleum Group agreed to pay a $10 million settlement.
“It was a really, really torturous experience,” said Mark Holden, Koch’s chief counsel. “We learned first-hand what happens when anyone gets into the criminal justice system.” Holden said Charles Koch wondered afterward “how the little guy who doesn’t have Koch’s resources deals with prosecutions like that.”
No one at Koch wants to re-litigate the Corpus Christi case, Holden said. But it prompted Charles Koch to study the justice system — both federal and state — wondering whether it has been over-criminalized with too many laws and too many prosecutions of nonviolent offenders, not only for him but for everybody. His conclusion: Yes, it has.
Ten years ago, he began giving money to support efforts by the National Association of Criminal Defense Lawyers to help train defense lawyers and reverse what some see as a national trend to get tough on crime, which has resulted in the tripling of the incarceration rate since the 1980s and has stripped the poor of their rights to a legal defense. He’s going to give more to that effort, he said.
“Over the next year, we are going to be pushing the issues key to this, which need a lot of work in this country,” Koch said. “And that would be freedom of speech, cronyism and how that relates to opportunities for the disadvantaged.” The nation’s criminal justice system needs reform, “especially for the disadvantaged,” Koch said, “making it fair and making (criminal) sentences more appropriate to the crime that has been committed.”...
The Corpus Christi case led Charles Koch and his company to give money, starting about 10 years ago, to the National Association of Criminal Defense Lawyers. The company and the association would not say how much Koch has given, but the amount totals in the seven figures, Holden said.
Campaigning against overcriminalization has prompted Koch to form unofficial alliances with people and organizations that usually champion liberal causes, including political activist George Soros and the American Civil Liberties Union, who are also campaigning for a reduction in prison populations....
Holden, Koch’s counsel ... said laws allow many crimes to be expunged from someone’s record. But that’s a tricky legal process, and many poor people don’t have the money to hire lawyers, he said. It makes no sense to give a life sentence like that to nonviolent offenders after they’ve served time, Holden said. “If you have a nonviolent felony and you get out of prison, we as a country can’t forgive and forget?” he asked.
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incerceration
Sunday, December 07, 2014
Two astute commentaries about California's emerging Prop 47 issues
Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":
California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.
The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”
There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....
It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.
Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":
The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.
With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.
The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....
In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.
It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.
But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.
Tuesday, December 02, 2014
"Actually, Blacks Do Care About Black Crime"
The title of this post is the headline of this notable new Slate commentary by Jamelle Bouie. Here are excerpts:
In cities across the country, crowds are protesting police violence against unarmed black men. Demonstrators want justice, not just for Michael Brown, but for Eric Garner, John Crawford, and Tamir Rice, the 12-year-old boy killed by Cleveland police last month. To that end, they’ve stopped parades and blocked highways in an effort to show the value of a black life.
But to some critics, this outrage is misplaced. “Somebody has to tell me, something somebody needs to tell me why Michael Brown has been chosen as the face of black oppression,” said MSNBC’s Joe Scarborough on Monday morning, during his daily show. His co-panelist, Donny Deutsch, agreed. “It’s not a black-white situation. It’s a thug-police officer situation,” he said. “Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?” wonders Deroy Murdock in a column for National Review. “One can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter,” writes Murdock, who doesn’t note that — in those cases — perpetrators are usually caught and convicted. And then there’s former New York City mayor Rudy Giuliani, who—after President Obama spoke on Ferguson — told CNN that “[Obama] also should have spent 15 minutes on training the [black] community to stop killing each other.”
This basic question — “Where is all the outrage over black-on-black crime?” — is raised whenever black Americans protest a police shooting, or any other violence against unarmed black men. “Nationally, nearly half of all murder victims are black,” wrote conservative commentator Juan Williams after Trayvon Martin was killed in 2012, “And the overwhelming majority of those black people are killed by other black people. Where is the march for them?”...
[L]et’s look directly at the question raised by Murdock, Giuliani, and Williams — “Do black people care about crime in their neighborhoods?” They treat it as a rhetorical concern — a prelude to broad statements about black American concerns. But we should treat it as an empirical question — an issue we can resolve with some time and research.
This isn’t as easy as it sounds. While blacks are more likely to face criminal victimization than other groups, that doesn’t tell us how black Americans feel about crime and where it ranks as a problem for their communities. For that, we have to look to public opinion surveys and other research. And while it’s hard to draw a conclusive answer, all the available evidence points to one answer: Yes, black people are concerned with crime in their neighborhoods....
[W]hile black neighborhoods are far less dangerous than they were a generational ago, black people are still concerned with victimization. Take this 2014 report from the Sentencing Project on perceptions of crime and support for punitive policies. Using data from the University of Albany’s Sourcebook of Criminal Justice Statistics, the Sentencing Project found that — as a group — racial minorities are more likely than whites to report an “area within a mile of their home where they would be afraid to walk alone at night” (41 percent to 30 percent) and more likely to say there are certain neighborhoods they avoid, which they otherwise might want to go to (54 percent to 46 percent). And among black Americans in particular — circa 2003 — “43 percent said they were ‘very satisfied’ about their physical safety in contrast to 59 percent of Hispanics, and 63 percent of whites.”
More recent data shows a similar picture. In 2012, Gallup found that, compared to the general public, blacks were more worried about “being attacked” while driving their car, more worried about being the victim of a hate crime, and — most salient for our discussion — more worried about “being murdered.” Likewise, according to a 2013 survey for NPR, the Robert Wood Johnson Foundation, and the Harvard School of Public Health, 26 percent of black Americans rank crime as the most important issue facing the area they live. That’s higher than the ranking for the economy (16 percent), housing (4 percent), the environment (7 percent), social issues (4 percent), and infrastructure (7 percent). And in a recently published survey for Ebony magazine and the W.K. Kellogg Foundation, 13 percent rank violent crime as a top issue — which sits in the middle of the rankings — and 48 percent say that the black community is losing ground on the issue.
Finally, Atlantic Media’s “State of the City” poll — published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime. Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police. That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods. And while “urban minority” includes a range of different groups, there’s a good chance this is representative of black opinion in some areas of high crime and victimization, given the large black presence in many American cities.
It’s important to note that this concern with crime doesn’t translate to support for punitive policies. Despite high victimization rates, black Americans are consistently opposed to harsh punishments and greater incarceration. Instead, they support more education and job training.
Beyond the data, there’s the anecdotal evidence. And in short, it’s easy to find examples of marches and demonstrations against crime. In the last four years, blacks have held community protests against violence in Chicago; New York; Newark, New Jersey; Pittsburgh; Saginaw, Michigan; and Gary, Indiana. Indeed, there’s a whole catalog of movies, albums, and sermons from a generation of directors, musicians, and religious leaders, each urging peace and order. You may not have noticed black protests against crime and violence, but that doesn’t mean they haven’t happened. Black Americans — like everyone else — are concerned with what happens in their communities, and at a certain point, pundits who insist otherwise are either lying or willfully ignorant....
To that point, it’s worth noting the extent to which “what about black-on-black crime” is an evasion, an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law.
Wednesday, November 26, 2014
Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
Regular readers know I am always interested in Senator Rand Paul's distinctive perspective on criminal justice issues. This new Time op-ed, headlined "The Politicians Are To Blame in Ferguson," has Senator Paul touching on broader themes as he connects recent events in Ferguson with his belief in the need for systemic reforms to the US criminal justice system. Here are excerpts:
We are witnessing a tragedy in Ferguson. This city in Missouri has become a focal point for so much. The President and the late Michael Brown’s family have called for peace. I join their calls for peaceful protest, but also reiterate their call to action — “channel your frustration in ways that will make a positive change.”
In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America. The War on Drugs has created a culture of violence and put police in a nearly impossible situation.
In Ferguson, the precipitating crime was not drugs, but theft. But the War on Drugs has created a tension in some communities that too often results in tragedy. One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.
Three out of four people in jail for drugs are people of color. In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?
African Americans perceive as true that their kids are more likely to be killed. ProPublica examined 33 years of FBI data on police shootings, accounted for the racial make-up of the country, and determined that: “Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts — 21 times greater.”
Can some of the disparity be blamed on a higher rate of crime in the black community? Yes, but there is a gnawing feeling that simply being black in a high-crime area increases your risk for a deadly altercation with police.
Does bad behavior account for some of the interactions with law enforcement? Yes, but surely there must be ways that we can work to prevent the violence from escalating....
Reforming criminal justice to make it racially blind is imperative, but that won’t lift up these young men from poverty. In fact, I don’t believe any law will. For too long, we’ve attached some mythic notion to government solutions and yet, 40 years after we began the War on Poverty, poverty still abounds.,,,
This message is not a racial one. The link between poverty, lack of education, and children outside of marriage is staggering and cuts across all racial groups. Statistics uniformly show that waiting to have children in marriage and obtaining an education are an invaluable part of escaping poverty....
I will continue to fight to end the racial disparities in drug sentencing. I will continue to fight lengthy, mandatory sentences that prevent judges from using discretion. I will continue to fight to restore voting rights for non-violent felons who’ve served their sentences. But my hope is that out of tragedy, a preacher or teacher will arise — one who motivates and inspires all of us to discover traits, ambitions, and moral codes that have slowly eroded and left us empty with despair.
I will continue the fight to reform our nation’s criminal justice system, but in the meantime, the call should go out for a charismatic leader, not a politician, to preach a gospel of hope and prosperity. I have said often America is in need of a revival. Part of that is spiritual. Part of that is in civics, in our leaders, in our institutions. We must look at policies, ideas, and attitudes that have failed us and we must demand better.
Tuesday, November 25, 2014
"Did Marijuana Kill Michael Brown?"
The title of this post is the headline of this provocative and interesting new piece by Jacob Sullum now up at Reason. Here is how the piece starts and ends:
In a radio interview on August 18, a self-identified friend of Darren Wilson's reported that the police officer suspected Michael Brown was under the influence of drugs the day Wilson shot him to death in Ferguson, Missouri. "He really thinks he was on something," the friend said, "because he just kept coming." Wilson made no mention of that theory during his grand jury testimony on September 16, although he did liken Brown to a "demon" and Hulk Hogan, descriptions reminiscent of the evil and strength sometimes attributed to illegal drugs.
One challenge for anyone pushing a pharmacological explanation of Brown's alleged behavior: Despite speculation that he was on PCP, marijuana is the only drug that was detected in his blood. Kathi Alizadeh and Sheila Whirley, the assistant county prosecutors who presented evidence to the grand jury, did what they could with pot, raising the possibility that Brown had smoked enough to experience "paranoia," "hallucinations," and maybe even a "psychotic episode." They planted that idea in jurors' heads mainly by presenting a toxicologist's misleading testimony about the amount of THC in Brown's blood and the possible effects of large doses....
The prosecutors spent considerable time insinuating that Brown had consumed cannabis in the form of the concentrate known as "wax," even though there does not seem to be any evidence that he did and even though it would not matter if he had. If the issue is Brown's level of intoxication, the amount of material he burned to achieve it is irrelevant. The testimony about wax looks like an attempt to exoticize a familiar drug that people do not usually associate with demonic rage or Hulk-like strength.
Then again, marijuana my be exotic enough as far as the prosecutors are concerned. "You explained that the Delta-9-THC has a psychoanalytic effect?" Alizadeh said at one point. "Psychoactive," the toxicologist corrected her. Later Whirley asked, "Could this amount of THC that was found in the blood be — is it possible that someone [could be] ingesting that amount on a regular basis and not be dead?" The toxicologist explained that "marijuana really isn't lethal." Unless you smoke it before getting stopped by a cop, I guess.
Rounding up some blogsphere reactions to events in Ferguson
In part because it is not a sentencing story, I have not had much to say about all the high-profile events in Ferguson, Missouri in recent months. But, not surprisingly, a number of other notable criminal law bloggers have shared some thoughts on the no-indictment news and reactions thereto last night. Here are some of the posts I have seen from bloggers I check out regularly (listed in alphabetical order):
From Paul Cassell, "The Michael Brown grand jury process was fair
From Jeff Gamso, "Close Your Eyes and Pretend Really Hard"
From Scott Greenfield, "The Ferguson Lie"
From Richard Kopf, "Two questions for Jeff Gamso, Scott Greenfield and others with like experience
From Jeralyn Merritt, "Ferguson G. J. Decision : No Indictment, Violence Erupts"
From Bill Otis, "No Indictment in Ferguson, and the Reaction
From Kent Scheidegger, "Perceptions and Realities of Injustice
Thursday, November 20, 2014
"The Racist Origins of Felon Disenfranchisement"
The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:
The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate. Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign. But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.
This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally. At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole. One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....
Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies. Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.
Those who opposed the bill made several arguments: That the franchise is enshrined in the state Constitution and too important to withdraw on a whim; that voting rights keep inmates connected to civic life and make it easier for them to rejoin society; that the notion of restricting rights for people in prison was inconsistent with the values of the state.
A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”
The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.
Tuesday, November 11, 2014
Notable past remarks by AG-nominee Lynch on criminal justice reform to the Convention on the Elimination of Racial Discrimination
I just came across these remarks delivered by Attorney General nominee Loretta Lynch in August 2014 to the Convention on the Elimination of Racial Discrimination in Switzerland as part of the US delegation. These remarks were intended to share with the Convention "some of the highlights of the Department of Justice’s efforts to eliminate racial discrimination and uphold human rights in the area of criminal justice."
The remarks are largely just a summary of many of the criminal justice reforms championed by Attorney General Eric Holder, but it will be interesting to see if the remarks garner special scrutiny as part of the Senate's confirmation process. Here are excerpts:
[T]he department has made great progress in reforming America’s criminal justice system. Our focus is not just on the prosecution of crime, but on eradicating its root causes as well as providing support for those re-entering society after having paid their debt to it.
There is, of course, much work still to be done. Currently our country imprisons approximately 2.2 million people, disproportionately people of color. This situation is a drain on both precious resources and human capital. The Attorney General is committed to reform of this aspect of our criminal justice system.
Last August the Attorney General announced the “Smart on Crime” initiative. Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal drug crimes will now be reserved for the most serious criminals. This is not an abandonment of prison as a means to reduce crime, but rather a recognition that, quite often, less prison can also work to reduce crime. We’re advancing alternative programs in place of incarceration in appropriate cases. And we’re committed to providing formerly incarcerated people with fair opportunities to rejoin their communities and become productive, law-abiding citizens.
As part of this effort, the Attorney General has directed every component of the Justice Department to review proposed rules, regulations or guidance with an eye to whether they may impose collateral consequences that may prevent reintegration into society. He has called upon state leaders to do the same, with a particular focus on enacting reforms to restore voting rights to those who have served their debt to society, thus ending the chain of permanent disenfranchisement that visits many of them.
To further ensure that the elimination of discrimination is an ongoing priority, the Attorney General has created a Racial Disparities Working Group, led by the U.S. Attorney community, to identify policies that result in unwarranted disparities within criminal justice and to eliminate those disparities as quickly as possible.
From the reduction of the use of solitary confinement, to the expansion of the federal clemency program, to our support for the retroactive reduction of penalties for non-violent drug offenders to the reduction in the sentencing disparity between crack and powder cocaine, we have worked to improve our criminal justice system in furtherance of our human rights treaty obligations. We look forward to the future and the opportunity to do even more.
Obviously, if Loretta Lynch become the next US Attorney General, she will be in a great position to seize "the opportunity to do even more" with respect to criminal justice reform. I wonder what she might have in mind.
A few recent related posts:
- Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General
- Minnesota judges say we must admit "we have a problem with race" in the criminal justice system
Sunday, November 09, 2014
Minnesota judges say we must admit "we have a problem with race" in the criminal justice system
Kevin Burke, a Minnesota county district judge, has authored this provocative new commentary which was signed on to by a number of fellow judges. The piece is headlined "On race and justice system, we're still in denial," and here are excerpts:
Repeatedly, we have been confronted with compelling evidence that our community has a serious problem with racial disparity in its justice system. Repeatedly, we have either said, “We can stop,” or we get defensive and attack the messenger. The time has come for us to change our response.
The recent report by the American Civil Liberties Union of Minnesota (ACLU) on the racial disparities of arrests comes as no particular surprise (“ACLU: Blacks arrested more for minor crimes,” Oct. 29). Sure, you could write off the ACLU as some leftist organization — except that its report is based on hard data. The ACLU’s data and its analysis replicate numerous studies dating back decades about the problem of racial disparity in the justice system in our community....
[I]n 2007, the Minneapolis-based Council on Crime on Justice issued a report that found that “[t]he racial disparity in Minnesota’s justice system is exceptionally high compared to other states. From arrest to imprisonment, the disparity is over twice the national average.” Since 2000, the report said, the Council on Crime and Justice “has undertaken seventeen separate studies in a comprehensive effort to understand ‘why’ such a large disparity exists here, in Minnesota.”...
We need to accept we have a problem. All of us have a right to be safe, but protecting the public and being racially fair are not mutually exclusive. The ACLU report is interesting, in part, because it is not focused on “serious” or “violent” crime. There is no legitimate reason why there is a vastly disproportionate arrest rate for young black people for possession of small amounts of marijuana or for loitering.
The justice system desperately needs the trust of the public. Community policing is premised upon community support. But before you conclude that this is a problem with the Minneapolis police — stop. All of the police, prosecutors, defenders, corrections officials and the community at large own a piece of the mess. And yes, so do the elected officials — including judges. Every one of us in the justice system bears responsibility for this problem....
There is a connection between racial disparity in the justice system and what is happening in our community. Child protection failures, racial disparity in low-level offenses, achievement gaps in school, and yes, even violent crime and gang problems are all related. The beginning of an end to these issues starts with a collective admission that we have a problem with race.
The solutions to our problem of racial disparity in the justice system may be as intractable as our failure to acknowledge the existence of the problem, but we have no choice other than to act. At a minimum, we need to acknowledge the cumulative nature of racial disparities. Racial disparity often builds at each stage of the justice continuum, from arrest through release from prison. And even then it does not stop. Employment opportunities for ex-offenders are limited. Hennepin County has a history of very good dialogue among the justice system participants, but in order to combat racial disparity, everyone needs to commit to a systematic approach. Without a systemic approach to the problem, gains in one area may be offset by reversals in another....
Given the persistence of the problem of racial disparity in the justice system, however, a very good case can be made that reasoned experiments to find solutions are a better alternative than continually repeating what we are presently doing — and hoping for a different result.
Saturday, November 08, 2014
"We should stop putting women in jail. For anything."
The title of this post is the headline of this provocative commentary by Patricia O'Brien available via the Washington Post. Here are excerpts:
It sounds like a radical idea: Stop incarcerating women, and close down women’s prisons. But in Britain, there is a growing movement, sponsored by a peer in the House of Lords, to do just that.
The argument is actually quite straightforward: There are far fewer women in prison than men to start with — women make up just 7 percent of the prison population. This means that these women are disproportionately affected by a system designed for men.
But could women’s prisons actually be eliminated in the United States, where the rate of women’s incarceration has risen by 646 percent in the past 30 years? ... Essentially, the case for closing women’s prisons is the same as the case for imprisoning fewer men. It is the case against the prison industrial complex and for community-based treatment where it works better than incarceration. But there is evidence that prison harms women more than men, so why not start there?
Any examination of the women who are in U.S. prisons reveals that the majority are nonviolent offenders with poor education, little employment experience and multiple histories of abuse from childhood through adulthood. Women are also more likely than men to have children who rely on them for support — 147,000 American children have mothers in prison....
What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons? Efforts to make prison “work” for women have only perpetuated the growth of the prison industrial complex. These putative reforms have helped some individuals, and possibly brought the nature of mass warehousing of poor, black and brown bodies more into focus, but the number of incarcerated people still continues to rise.
So what is the alternative to jailing women at the rate we do? In Britain, advocates propose community sentences for nonviolent offenders and housing violent offenders in small custodial centers near their families. There is evidence that these approaches can work in the United States. Opportunities to test alternatives to prison are increasing across the states, and some have demonstrated beneficial results for the women who participated....
Oklahoma is currently ranked No. 1 for female incarceration per capita in the country. Nearly 80 percent of Oklahoma’s incarcerated women are nonviolent offenders, their presence in prison largely attributed to drug abuse, distribution of controlled substances, prostitution and property crimes.
A program that began five years ago, Women in Recovery, provides an alternative to prison for women who are sentenced for felony crimes linked to alcohol or drug addiction. The program includes comprehensive treatment and services such as employment services, housing assistance and family reunification. Women with small children are given the highest priority for admission to the program. Women who complete the program, averaging about 18 months, have a high degree of success after release. The program coordinator has told me that 68 percent of the women who completed the program had no further involvement with the criminal justice system....
The systemic production of mass incarceration cannot be solved simply by assisting troubled and troubling individual women. Another step to abolition requires taking the discussion beyond the individuals and communities most directly harmed, controlled and erased by the prison industrial complex to the public sphere that has passively accepted it. Put simply, we need to stop seeing prisons as an inevitable part of life....
The case for closing women’s prisons is built on the experiences of formerly incarcerated women and activists who recognize that women who are mothers and community builders can find their way forward when they respected and supported. It is possible to imagine a future without women’s prisons; whether it’s achievable will require a bigger shift in thinking.
Wednesday, October 22, 2014
Graphic representation of female prisoners around the world
I just tripped across this interesting piece and infographic published last month via Forbes. The piece is headlined "Nearly A Third Of All Female Prisoners Worldwide Are Incarcerated In The United States," and here is the text that goes along with the infographic:
According to the International Centre for Prison Studies, nearly a third of all female prisoners worldwide are incarcerated in the United States of America. There are 201,200 women in US prisons, representing 8.8 percent of the total American prison population.
China comes a very distant second to the United States with 84,600 female prisoners in total or 5.1% of the overall Chinese prison population. Russia is in third position -- 59,000 of its prisoners are women and this comes to 7.8 percent of the total.
Across the world, 625,000 women and children are being held in penal institutions with the female prison population growing on all five continents.
Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?
The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:
So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).
Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....
To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.
Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.
She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...
But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.
Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”
Sound public policy must be based on facts, not radical unsafe, and dangerous theories.
I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."
The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.
That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate. (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.) I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues. But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.
October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack
Sunday, October 19, 2014
Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed
Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school. The lengthy dismissal order is available here, and this AP article reviews the basics:
A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.
Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.
Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.
In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.
"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."
Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.
I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:
The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....
In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.
I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.
As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.
Prior related posts:
- Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
- "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"
UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."
Friday, October 17, 2014
ProPublica urges next AG to "Fix Presidential Pardons"
The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:
Dear Possible Attorney General Nominees (You Know Who You Are),...
More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.
Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.
We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....
If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.
Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....
Stephen Engelberg/Editor in Chief, ProPublica
Thursday, October 16, 2014
"Risk and Needs Assessment: Constitutional and Ethical Challenges"
The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.
Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.
The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.
October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack
Thursday, October 02, 2014
Notable new empirical research on citizenship's impact on federal sentencing
I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court?
Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
Intriguing new research on criminal justice impact of distinct marijuana reforms
The Center on Juvenile and Criminal Justice has produced this interesting new research report titled "Reforming Marijuana Laws: Which Approach Best Reduces The Harms Of Criminalization? A Five-State Analysis." Here is what the report's Introduction:
The War on Marijuana is losing steam. Policymakers, researchers, and law enforcement are beginning to recognize that arresting and incarcerating people for marijuana possession wastes billions of dollars, does not reduce the abuse of marijuana or other drugs, and results in grossly disproportionate harms to communities of color. Marijuana reforms are now gaining traction across the nation, generating debates over which strategies best reduce the harms of prohibition.
Should marijuana be decriminalized or legalized? Should it be restricted to people 21 and older? Advocates of the latter strategy often argue their efforts are intended to protect youth. However, if the consequences of arrest for marijuana possession — including fines, jail time, community service, a criminal record, loss of student loans, and court costs — are more harmful than use of the drug (Marijuana Arrest Research Project, 2012), it is difficult to see how continued criminalization of marijuana use by persons under 21 protects the young. Currently, people under 21 make up less than one-third of marijuana users, yet half of all marijuana possession arrests (ACLU, 2013; Males, 2009).
This analysis compares five states that implemented major marijuana reforms over the last five years, evaluating their effectiveness in reducing marijuana arrests and their impact on various health and safety outcomes. Two types of reforms are evaluated: all-ages decriminalization (California, Connecticut, and Massachusetts), and 21-and-older legalization (Colorado and Washington). The chief conclusions are:
• All five states experienced substantial declines in marijuana possession arrests. The four states with available data also showed unexpected drops in marijuana felony arrests.
• All-ages decriminalization more effectively reduced marijuana arrests and associated harms for people of all ages, particularly for young people.
• Marijuana decriminalization in California has not resulted in harmful consequences for teenagers, such as increased crime, drug overdose, driving under the influence, or school dropout. In fact, California teenagers showed improvements in all risk areas after reform.
• Staggering racial disparities remain— and in some cases are exacerbated — following marijuana reforms. African Americans are still more likely to be arrested for marijuana offenses after reform than all other races and ethnicities were before reform.
• Further reforms are needed in all five states to move toward full legalization and to address racial disparities
Cross-posted at Marijuana Law, Policy & Reform
Tuesday, September 23, 2014
Noting the dynamics and debate over risk-assessments at sentencing
This new Wall Street Journal article, headlined "Judges Turn to Risk-Evaluation Tools in Sentencing Decisions: Many Are Adopting More Systematic Approach to Assessing Likelihood of Reoffense," discusses the always interesting issue of using risk-assessment measures at sentencing. Here are excerpts:
Judges have always considered the risk of reoffending in meting out sentences, and they generally follow guidelines that dictate a range of punishment for a given offense. [More recently], however, [there is] a broad effort to bring a more scientific approach to decisions made by judges, parole officers and corrections officials working in a system that often relies on gut instinct. Risk-evaluation tools have emerged as a centerpiece of efforts to reduce the U.S. inmate population, which jumped from around 200,000 in the early 1970s to over 2 million today.
Many parole boards now weigh risk scores when considering early release, and prison officials use them to determine the level of security offenders need during their stay. But the adoption of such tools has sparked a debate over which factors are acceptable. Attributes such as age or sex, which employers are generally forbidden from including in hiring decisions, are considered by criminal-justice experts to be strong predictors of whether an offender is likely to commit a crime in the future.
The measures vary widely but generally are based on an offender's criminal history and, in addition to age and sex, may include marital status, employment and education, according to Sonja Starr, a law professor at the University of Michigan.
Pennsylvania, one of the latest states to turn to actuarial tools in sentencing, is building a test that weighs the nature of offense, criminal history, age, sex and county of residence. The last factor is the most controversial as it could be considered a proxy for socioeconomic status. Missouri takes into account current offense and criminal history, age, whether the offender has a history of substance abuse, education level and employment.
Judges aren't bound by the evaluations, but there is evidence they are taking them into account. Virginia officials attribute a more than 25% drop in the number of nonviolent offenders sent to prison annually to the assessments, used to score felons convicted of fraud, larceny and drug crimes since 2003. In the past decade, the percentage of offenders serving prison terms for violent crime has risen to 74% from 61%, said Chief Judge Bradley B. Cavedo of Richmond Circuit Court. "It doesn't really control the outcome, but it is useful information," he said of the measures.
The efforts have drawn skepticism from Attorney General Eric Holder, who told a group of defense lawyers in Philadelphia last month that basing sentencing on factors such as a defendant's education level "may exacerbate unwarranted and unjust disparities."
There is no research yet on whether the use of risk evaluations in sentencing has aggravated, for example, the gap between sentences for black and white men for similar crimes. Ms. Starr said the disparities created by risk measures are evident. "When it comes down to it, these assessments stand for the proposition that judges should sentence people longer because they were in foster care as children or had too many bouts of unemployment," she said.
Christopher Slobogin, a Vanderbilt University law professor, said the alternative was potentially worse. "At least these risk-assessment instruments don't explicitly focus on race or poverty, unlike what might occur in a sentencing regime where judges are making risk assessments based on seat-of-the-pants evaluations," he said.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing":
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
- Senator Whitehouse defends risk-assessment tools for some sentencing determinations
September 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack
Wednesday, September 17, 2014
Two folks working on criminal justice issues get MacArthur "genius" Fellowships
The MacArthur Foundation announced its 2014 Fellowships (which are often called “genius grants”), and two recipients work on criminal justice issues. Here is an overview of their work via the MacArthur announcement (with a link for more information):
Jennifer Eberhardt is a social psychologist investigating the subtle, complex, largely unconscious yet deeply ingrained ways that individuals racially code and categorize people, with a particular focus on associations between race and crime. Through collaborations with experts in criminology, law, and anthropology, as well as novel studies that engage law enforcement and jurors, Eberhardt is revealing new insights about the extent to which race imagery and judgments suffuse our culture and society.
Jonathan Rapping is a lawyer and legal defense advocate addressing failures of the U.S. criminal justice system to provide client-centered representation for indigent Americans. A large and growing number of those accused of felonies (by some estimates as high as 80 percent) cannot afford to pay for legal counsel. Though provided lawyers at no charge by the court system, often the accused are represented by public defenders burdened with too many cases and too few resources, resulting in over-incarceration or wrongful convictions that irreparably disrupt the lives of not only the indicted individuals but of their families and communities as well.
Tuesday, September 16, 2014
Texas poised to execute a second female murderer in one year
As reported in this local AP piece, headlined "Court Declines To Stop North Texas Woman’s Execution," it appears as though Texas is not facing any impediments to completing a notable execution on Wednesday. Here are the basics:
When paramedics responding to a 911 call arrived at a North Texas apartment, they found on the bathroom floor a dead boy clad only in bandages and a disposable diaper. He appeared to be 3 to 5 years old. Further investigation determined Davontae Williams actually was 9.
His emaciated body weighed only 36 pounds, about half of what a boy his age should weigh. Evidence showed he had been restrained repeatedly at his wrists and ankles. A pediatrician later would testify that he had more than 250 distinct injuries, including burns from cigarettes or cigars and scars from ligatures, and that a lack of food made him stop growing.
On Wednesday, Lisa Ann Coleman, the live-in girlfriend of Davontae’s mother, is set to be executed for the child’s July 2004 death in Arlington. Coleman’s trial lawyers said his death was an accident, that the boy had mental health issues, was difficult to handle and she and Marcella Williams, his mother, didn’t know how to deal with him in a positive manner.
Coleman, 38, would be the ninth Texas inmate to receive a lethal injection this year. She would be the sixth woman put to death in the nation’s busiest capital punishment state since executions resumed in Texas in 1982 and the second this year.
Nationally, she would be only the 15th woman executed since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, nearly 1,400 men have been executed.
After a Tarrant County jury in 2006 convicted Coleman and gave her a death sentence, Marcella Williams, facing similar charges, took a plea deal and accepted a life prison term. Now 33, she not eligible for parole until 2044.
Attorneys for Coleman argued in appeals that prosecutors improperly defined Davontae’s restraints and confinement in a closet as kidnapping to find an aggravating factor so Coleman could be eligible for the death penalty. They also argued that jurors who convicted her of capital murder did so because her trial lawyers were deficient. “It has never been Lisa Coleman’s position that she should not be punished for what she did,” attorney John Stickels said in an appeal the 5th U.S. Circuit Court of Appeals, which was rejected Tuesday....
Photos of Davontae shown to jurors were “horrendous” and illustrated his suffering, trial defense attorney Fred Cummings acknowledged, but he believed a life sentence also would have been appropriate for Coleman. “It just doesn’t seem that the system was fairly applied here,” Cummings said last week.
Evidence showed child welfare officials repeatedly investigated Marcella Williams but would lose track of her because she kept moving to evade them, fearing they would take away her son and two younger daughters.
The Death Penalty Information Center has this effective webpage that assembles information about the handful of women who have been executed in the modern death penalty era. That page reveals that it has been more than a decade since two female murderers were executed in the same calendar year. It also shows that Texas will still lag behind one other state for the most executions of women in a single year: in 2001, Oklahoma completed executions of three women.
Wednesday, September 10, 2014
The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.
But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.
The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.
September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Sunday, September 07, 2014
"Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies"
This report examines how racial perceptions of crime are a key cause of the severity of punishment in the United States. Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies, authored by Nazgol Ghandnoosh, Ph.D., research analyst at The Sentencing Project, synthesizes two decades of research revealing that white Americans’ strong associations of crime with blacks and Latinos are related to their support for punitive policies that disproportionately impact people of color.
Coming on the heels of the tragic events in Ferguson, Missouri, the report demonstrates that the consequences of white Americans’ strong associations of crime with blacks and Latinos extend far beyond policing.
Key findings of the report include:
White Americans overestimate the proportion of crime committed by people of color, and associate people of color with criminality. For example, white respondents in a 2010 survey overestimated the actual share of burglaries, illegal drug sales, and juvenile crime committed by African Americans by 20-30%.
Studies have shown that whites who associate crime with blacks and Latinos are more likely to support punitive policies – including capital punishment and mandatory minimum sentencing – than whites with weaker racial associations of crime.
These patterns help to explain why whites are more punitive than blacks and Latinos even though they are less likely to be victims of crime. In 2013, a majority of whites supported the death penalty for someone convicted of murder, while half of Hispanics and a majority of blacks opposed this punishment.
Racial perceptions of crime not only influence public opinion about criminal justice policies, they also directly influence the work of criminal justice practitioners and policymakers who operate with their own often-unintentional biases.
The report recommends proven interventions for the media, policymakers, and criminal justice professionals to reduce racial perceptions of crime and mitigate their effects on the justice system. These include addressing disparities in crime reporting, reducing the severity and disparate impact of criminal sentencing, and tackling racial bias in the formal policies and discretionary decisions of criminal justice practitioners.
Monday, September 01, 2014
Gendered perspective on Ohio's challenges with opioids and prison growth
As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population. And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:
A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.
Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.
Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.
At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....
Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.
Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”
Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.
September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Wednesday, August 27, 2014
Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters
Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute. The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case. Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:
A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith). A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.
At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.
Here is how the dissent, per Judge Sargus sitting by designation, gets started:
This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent. In my view, the majority has adopted an unduly restrictive interpretation of the statute.
Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014). The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other. I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless. This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.
Related prior posts:
- Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
- Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
- Interesting defense arguments for sentencing leniency in Amish beard-cutting case
- Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
- Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
- "Amish beard-cutting ringleader gets 15 years"
- Guest post on Amish sentencing: "A Travesty in Cleveland"
Thursday, August 21, 2014
After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
The question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective." Here are excerpts from the commentary (with links from the original):
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
Additionally, business interests play a part in keeping cannabis illegal. Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.
A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- "The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- Is pot already really legal for middle-aged white folks?
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack
Tuesday, August 19, 2014
"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"
The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III. Here is the abstract:
This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.
There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.
Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’” For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.
Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.
Senator Whitehouse defends risk-assessment tools for some sentencing determinations
The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making. Here is the full text of the published letter:
In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism. But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.
The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.
States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend. That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing"
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Is an end to the modern drug war the only real way to prevent future Fergusons?
The question in the title of this post is prompted by this provocative new commentary by John McWhorter in The New Republic. The piece is headlined "There Is Only One Real Way to Prevent Future Fergusons: End the War on Drugs," and here are excerpts:
At times like this, with the raging protest in Ferguson, an implication hangs in the air that these events are leading somewhere, that things are about change. The saddest thing, however, is that this is, indeed, a “time like this” — one of many, before and certainly to come. It is impossible not to conclude that what happened to Michael Brown in Ferguson is now status quo, not a teaching lesson to move us forward....
We don’t know the details yet, but it’s apparent that, in spite of all we went through with [Trayvon] Martin so recently, in a clinch — the mean, messy place where these things always happen — the Ferguson cop Darren Wilson assumed that a big black guy was trouble, serious trouble, and shot him dead. It’s what happens in that clinch that matters, and we can now see that no amount of articulate protest can cut through such visceral human tendencies as bias and fear....
So, what will really make a difference? Really, only a continued pullback on the War on Drugs. Much of what creates the poisonous, vicious-cycle relationship between young black men and the police is that the War on Drugs brings cops into black neighborhoods to patrol for drug possession and sale. Without that policy — which would include that no one could make a living selling drugs — the entire structure supporting the notion of young black men as criminals would fall apart. White men with guns would encounter young black men much less often, and meanwhile society would offer young black men less opportunity to drift into embodying the stereotype in the first place.
But that’s the long game. In the here and now, we are stuck. Michael Brown was not “it.” The journalists assiduously documenting the events in Ferguson can serve as historians, but not as agents of change.
Recent related post:
Friday, August 15, 2014
Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
Senator Rand Paul, who has made notable efforts to push notable reforms of the federal criminal justice system, has penned this provocative Time op-ed about the sad and ugly situation that has unfolded in Ferguson, Missouri in the aftermath of the police shooting of teenager Michael Brown. Here are excerpts:
If I had been told to get out of the street as a teenager, there would have been a distinct possibility that I might have smarted off. But, I wouldn’t have expected to be shot. The outrage in Ferguson is understandable — though there is never an excuse for rioting or looting. There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response.
The images and scenes we continue to see in Ferguson resemble war more than traditional police action....
Most police officers are good cops and good people. It is an unquestionably difficult job, especially in the current circumstances.
There is a systemic problem with today’s law enforcement.
Not surprisingly, big government has been at the heart of the problem. Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies — where police departments compete to acquire military gear that goes far beyond what most of Americans think of as law enforcement.
This is usually done in the name of fighting the war on drugs or terrorism. The Heritage Foundation’s Evan Bernick wrote in 2013 that, “the Department of Homeland Security has handed out anti-terrorism grants to cities and towns across the country, enabling them to buy armored vehicles, guns, armor, aircraft, and other equipment.”...
When you couple this militarization of law enforcement with an erosion of civil liberties and due process that allows the police to become judge and jury — national security letters, no-knock searches, broad general warrants, pre-conviction forfeiture — we begin to have a very serious problem on our hands.
Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.
This is part of the anguish we are seeing in the tragic events outside of St. Louis, Missouri. It is what the citizens of Ferguson feel when there is an unfortunate and heartbreaking shooting like the incident with Michael Brown.
Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention. Our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences for non-violent mistakes in their youth.
The militarization of our law enforcement is due to an unprecedented expansion of government power in this realm. It is one thing for federal officials to work in conjunction with local authorities to reduce or solve crime. It is quite another for them to subsidize it.
Americans must never sacrifice their liberty for an illusive and dangerous, or false, security. This has been a cause I have championed for years, and one that is at a near-crisis point in our country.
Monday, August 11, 2014
Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here). Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front.
In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say. For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way:
In a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.
Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....
Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.
In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:
Greenfield: "Numbers don’t lie (But People Do)"
All this is highly recommended reading!
Wednesday, June 18, 2014
Senator Rand Paul continues making the conservative case for criminal justice reform
Regular readers know of my respect and admiration for Senator Rand Paul's modern efforts to explain to lots of folks how is modern conservative values call for modern crimnal justice reforms. This Huffington Post article, headlined "Rand Paul Tackles Prisons 'Full Of Black And Brown Kids' Amid GOP Reach For Minority Votes," reports on how potent Senator Paul's points have become as he makes the case for criminal justice reforms:
In an ongoing effort to bridge the gap between the GOP and minority voters, Sen. Rand Paul (R-Ky.) deviated from traditional party lines during a speech at the Iowa State Republican Party Convention Saturday, criticizing racist drug policies in the United States and calling for the restoration of voting rights for ex-convicts.
After conceding that his position may not "bring everybody together" and establishing that "drugs are a scourge," Paul continued:
I also think it’s a problem to lock people up for 10 and 15 and 20 years for youthful mistakes. If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons.
The likely 2016 presidential contender, who previously compared federal drug laws to the racist policies of the Jim Crow era, also criticized the GOP for failing to live up to its platform emphasis on family values. “If we’re the party of family values, in 1980 there were 200,000 kids with a dad in prison. There’s now two million,” Paul said, calling on Judeo-Christian conservatives to set policies by the principle of redemption.
Some related posts:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Senator Rand Paul telling fellow conservatives to focus on criminal justice reform
- GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives
Monday, June 09, 2014
"Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis"
The title of this post is the title of this notable essay by Jonathan Rapping that I just came across on SSRN. Here is the abstract:
The Gideon Court recognized a truism: until we ensure that poor people have access to the same quality of counsel that people with means can pay for, we cannot have equal justice. But fifty years later, the promise of equal justice has not materialized. In so many ways, our criminal justice system is less fair; less equal; less humane. Since Gideon was decided, the U.S. imprisonment rate has nearly quadrupled, and the percentage of people charged with crimes who are poor has roughly doubled. As compared to 1963, poor people today are more likely to be arrested, convicted, and sentenced to lengthier prison terms than their wealthier counterparts.
Given these depressing developments, some have questioned whether the right to counsel has made much of a difference for indigent defendants and whether it is even worth defending as a force to end the injustices of the system. This Essay takes a different view of the problem and argues that a strong public defender system is necessary to achieve systemic reform. This is so both because of the role the public defender plays in interrupting a process that is increasingly designed to convict and punish poor people en masse, and because of the potential of a strong community of public defenders to galvanize the movement needed to push for important policy reform.
Saturday, June 07, 2014
Detailing how many more women have come to discover "Orange is the New Black"
To really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):
The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations. So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.
The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)
Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)
Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)
1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)
Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)
Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.
Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)
Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)
Wednesday, May 21, 2014
"Guilty and Charged": NPR investigation of charges and fees imposed on criminal defendants
As detailed in this series of new pieces, National Public Radio has conducted an in-depth investigation of how states charging criminal defendants and convicted offenders a range of fees. The start of this lead piece for the special series, headlined "As Court Fees Rise, The Poor Are Paying The Price," provides this description of the NPR efforts and findings:
In Augusta, Ga., a judge sentenced Tom Barrett to 12 months after he stole a can of beer worth less than $2. In Ionia, Mich., 19-year-old Kyle Dewitt caught a fish out of season; then a judge sentenced him to three days in jail.
In Grand Rapids, Mich., Stephen Papa, a homeless Iraq War veteran, spent 22 days in jail, not for what he calls his "embarrassing behavior" after he got drunk with friends and climbed into an abandoned building, but because he had only $25 the day he went to court.
The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system.
A yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders. It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far.
A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required. For example:
- In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
- In at least 41 states, inmates can be charged room and board for jail and prison stays.
- In at least 44 states, offenders can get billed for their own probation and parole supervision.
- And in all states except Hawaii, and the District of Columbia, there's a fee for the electronic monitoring devices defendants and offenders are ordered to wear.
These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers. In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.
There are already six stories assembled on this topic available here under the special series heading "Guilty and Charged." Particularly valuable for researchers may be this chart reporting the results of NPR's state-by-state survey of common fees charged to defendants.
Two new juve justice papers from The Sentencing Project
- Juvenile Life Without Parole: An Overview -- Recent Supreme Court rulings have banned the use of mandatory life without parole for juveniles, as well as in non-homicide cases. Still, the United States stands alone as the only nation that sentences people to life without parole for crimes committed before turning 18. This briefing paper documents the key legal cases in this area, as well as the impact on fiscal costs, racial disparities, and prospects for reform.
- Disproportionate Minority Contact in the Juvenile Justice System -- Despite declining numbers of juveniles held in confinement nationally, racial disparities in the juvenile justice system remain a persistent problem. This briefing paper provides an overview of disparity trends in recent decades, and an assessment of how policy and practice decisions contribute to racial disparities.
Thursday, May 08, 2014
Recognizing that mass incarceration has lately been a little less massive
The always astute commentator Charles Lane has this new astute commentary in the Washington Post under the headline "Reaching a verdict on the era of mass incarceration." Here are excerpts:
Though the U.S. prison population of 1.5 million in 2012 was far larger than that of any other country, both in absolute terms and as a percentage of population, the era of ever-increasing “mass incarceration” is ending.
The number of state and federal inmates peaked in 2009 and has shrunk consistently thereafter, according to the Justice Department. New prison admissions have fallen annually since 2005. The inmate population is still disproportionately African American — 38 percent vs. 13 percent for the general population — but the incarceration rate for black men fell 9.8 percent between 2000 and 2009, according to the Sentencing Project.
This is not, however, the impression one would get from a new 464-page report from the prestigious National Research Council, which, like other think-tank output and media coverage of late, downplays recent progress in favor of a scarier but outdated narrative. The report opens by observing that the prison population “more than quadrupled during the last four decades” and goes on to condemn this as a racially tainted episode that badly damaged, and continues to damage, minority communities but did little to reduce crime.
The study’s authors are right that the disproportionate presence of minorities in prison is a tragic reality, rooted at least partly in the post-1960s politics of white backlash. Today’s big prison population reflects the impact of mandatory minimums and longer sentences, which probably do yield diminishing returns in terms of crime reduction, especially for nonviolent drug offenses. Summarizing a relative handful of studies, the NRC report implies that we can have safe streets without the cost, financial and moral, of locking up so many criminals — since it’s “unlikely” that increased incarceration had a “large” positive impact on crime rates.
It would be nice if there were no trade-off between crime and punishment, but common sense says it’s not so. An analysis by the Brookings Institution’s Hamilton Project, similar in both tone and timing to the NRC report, acknowledges that increasing incarceration can reduce crime and that this effect is greatest when the overall rate of incarceration is low.
Ergo, increasing the incarceration rate now would do little to reduce crime, but the crime-fighting benefits were probably substantial back in the high-crime, low-incarceration days when tougher sentencing was initially imposed.
It’s easy to pass judgment on the policymakers of that violent era, when the homicide rate was double what it is today and crime regularly topped pollsters’ lists of voter concerns. That had a racial component, but minorities were, and are, disproportionately victims of crime, too. The NRC report extensively discusses the negative effect on communities of incarcerating criminals, but it has comparatively little to say about the social impact of unchecked victimization.
Buried within the report is the fact that, in 1981, the average time served for murder was just five years; by 2000, it had risen to 16.9 years. The numbers for rape were 3.4 and 6.6 years, respectively. Insofar as “mass incarceration” reflects those changes — and the majority of state prisoners are in for violent crimes — it’s a positive development....
Instead of ignoring recent positive trends, researchers should try to understand them. The decline in incarceration may represent the delayed effect of falling crime and the diminished flow of new offenders it necessarily entails.
Sentencing reform, too, is taking hold, based on changing public attitudes. The percentage of Americans who say criminals are not punished harshly enough has fallen nearly 23 points since 1994 — when the crime wave peaked — according to data compiled by Arizona State University professor Mark Ramirez.
After erring on the side of leniency in the 1960s, then swinging the opposite way in the 1980s and 1990s, the United States may be nearing a happy medium. But this probably would not be possible if 48 percent of Americans felt unsafe walking at night within a mile of their homes, as the Gallup poll found in 1982. To sustain moderate public opinion we must keep the streets safe, and to do that we must learn the right lessons from the recent past.
I largely concur with many of Lane's sentiments here, especially with respect to making sure we acknowledge that rates of violent crime have dropped dramatically in recent decades and trying our very best to identify and understand recent trends and to "learn the right lessons from the recent past." At the same time, though, I question the basis for asserting that we may "be nearing a happy medium" with respect to modern punishment policies and practices given that the vast majority of the most severe sentencing laws enacted in the the 1980s and 1990s are still on the books.
Some recent related posts:
- "The Growth of Incarceration in the United States: Exploring Causes and Consequences"
- Notable new data on crime, punishment and mass incarceration
- New Human Rights Watch report bemoans "Nation Behind Bars"
- Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
- Reviewing how US prisons now serve as huge warehouses for the mentally ill
- Lots of recent (and long-overdue) new concerns about solitary confinement
- "Fewer prisons — and yet, less crime"
Tuesday, May 06, 2014
"The Growth of Incarceration in the United States: Exploring Causes and Consequences"
The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering). The report runs more than 450 pages and can be accessed at this link.
I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way. Fortunately, the always help folks at The Crime Report have these two great postings about the report:
I hope to be able to provide more detailed coverage of this important report in the weeks to come.
Wednesday, April 23, 2014
"Are female sex offenders treated differently?"
The title of this post is the headline of of this new Salon article which carries this subheadline: "A light sentence for a teacher suggests courts still don't get it about women predators." Here is how the piece begins:
It’s an all too common story – a high school teacher facing sex abuse charges involving students admits to the wrongdoing and faces the criminal justice system. But was a sentence of just one month in custody at a Community Correction Center sufficient punishment for a 39-year-old educator who has sex abuse investigations dating back six years? And could the slap on the wrist sentence have anything to do with the fact that in this case, the teacher sentenced is a woman, and the victim is a boy?
In a case that involves charges of abuse from two male students, Oregon teacher Denise Keesee has acknowledged multiple sexual encounters in 2008 with a then 16-year-old student, and currently faces a $5.1 million lawsuit from another male student. According to Oregon Live, court documents show that “Keesee told detectives she kissed [the other student] several times in 2012 when they were alone in her classroom. She also reportedly admitted to sending him photos of herself, including one of her naked.” Because that student was 18, no criminal charges were filed.
The justice system doesn’t lack for stories of male abusers who get off with relatively light punishments. And it’s important to note that every story involving sex abuse is unique. But at the same time that Denise Keesee is facing just 30 days of confinement for what happened between her and a 16-year-old, a male teacher in her same state was last week sentenced to nearly three years in prison for “an inappropriate sexual relationship” with a 16-year-old female student. Last month in Idaho, a special education teacher was sentenced to five to 20 years in prison for sexually abusing two adolescent girls.
Friday, April 11, 2014
"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"
The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.
Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
Tuesday, April 08, 2014
NY Times debates "What It Means if the Death Penalty Is Dying"
Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty. If passed, the law would make New Hampshire the 19th state to abolish capital punishment. The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.
As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?
Here are the contributions, with links via the commentary titles:
"Rare and Decreasing" by Richard Dieter
"Punishment Needs to Be Punishment" by Robert Blecker
"No Justice for Victims of Color" by Khalilah Brown-Dean
"Of Course, It’s Cruel and Unusual" by Kirk Bloodsworth
"Claims of Racial Disparity Are Misleading" by John McAdams
"The Most ‘Unusual’ It’s Ever Been" by Paul Butler