Monday, December 05, 2016
"No Bars: Unlocking the Economic Power of the Formerly Incarcerated"
The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:
One in three Americans has a criminal record. Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility. But formerly incarcerated individuals face substantial obstacles to employment when they leave prison, from discrimination in hiring to occupational licensing requirements that exclude those with criminal records from specific professions.
This paper summarizes recent research on the employment of formerly incarcerated individuals, focusing in particular on the disproportionate effect of occupational licensing requirements. The paper concludes with suggestions for policy changes that would reduce the friction this population experiences in the labor market. These policies would help these individuals become more economically independent and have a positive impact on the economy as a whole.
Thursday, December 01, 2016
Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons
I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform. But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late. Here are the substantive highlights:
Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.
“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”
“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."
Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.
The department announced additional details regarding these efforts:
Building a school district within the federal prison system....
Reforming federal halfway houses....
Covering the cost of state-issued IDs prior to inmates’ release....
Enhancing programs for female inmates....
These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.
I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons. And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration. in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.
Sigh and Grrr.
December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)
Wednesday, November 30, 2016
"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"
Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting. For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."
Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing. Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.
Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers. I recommend the piece in full, and here are excerpts:
Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.” One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.
Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses. The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups. Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....
On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs. This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies. The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....
Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...
Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.
Sunday, November 13, 2016
"Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?"
The title of this post is the title of this notable new essay authored by Nora Demleitner. Here is the abstract:
Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.
These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.
Wednesday, October 26, 2016
The Opportunity Agenda produces huge report on "Transforming the System: Criminal Justice Policy Solutions"
The Opportunity Agenda, which is a project of Tides Center and calls itself a "social justice communication lab," has just released this huge new on-line report (which is also available as a pdf here) under the title "Transforming the System: Criminal Justice Policy Solutions." Here is the main introduction and the headings for links to different sections of this report:
Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.
People of color, particularly Native American, black, and Latino people, have felt the impact of discrimination within the criminal justice system. Many immigrants experience mandatory detention, racial profiling, and due process violations because of laws and policies that violate their human rights—and the principles of equal justice, fair treatment, and proportionality under our criminal justice system. The good news is that we as a nation are at a unique moment in which there is strong public, bipartisan support for criminal justice reform; we see positive policy developments in many parts of the country; and mass action and social movements for change are growing, including the Movement for Black Lives. More is needed, however, to move from positive trends to transformative, lasting change.Criminal Justice Policy Solutions
- Promote Community Safety through Alternatives to Incarceration: Our criminal justice system should ensure that all individuals feel safe and secure in their communities.
- Create Fair and Effective Policing Practices: To work for all of us, policing practices should ensure equal justice and be supported by evidence.
- Promote Justice in Pre-Trial Services & Practices: The right to due process is a cornerstone of our commitment to freedom and fairness.
- Enhance Prosecutorial Integrity: Prosecutors represent the government, and therefore must reflect the highest levels of integrity and ethics in their work.
- Ensure Fair Trials and Quality Indigent Defense: Every accused person is entitled to a fair trial. Indigent defendants have a constitutional right to competent representation at trial.
- Encourage Equitable Sentencing: People convicted of crimes should receive fair sentences. These sentences should reflect the severity of the crime and be administered in a fair manner.
- Ensure Decent Detention Conditions: Decent, rehabilitative prisons are a basic human right and crucial to the successful reintegration of formally incarcerated people.
- Require Equitable Parole and Probation: Parole and probation practices should be fair and consistent. They should be used as a tool to allow accused persons to safely remain in their communities.
- Foster Successful Reintegration: Most Americans agree that after completing a criminal sentence, released people should be given an opportunity to successfully reintegrate into their communities.
- Foster an Environment for Respecting Children's Rights: We must adopt policies that ensure children reach their full potential and are not placed off track for childhood mistakes.
- Eradicate the Criminalization of Sex, Gender, & Sexuality: We all should have freedom to live without fear of criminalization because of our expressed sex, gender or sexuality.
- Eliminate the Criminalization of Poverty: Instead of increasing opportunities to succeed, our law too often funnels low-income people into the criminal justice system.
- Eliminate the Criminalization of Public Health Issues: The criminal justice system is too often used as a cure-all for social problems that are better suited to social services and public health responses.
- Promote Fairness at the Intersection of Immigration and Criminal Justice: Everyone is entitled to have their human rights respected regardless of immigration status.
- Public Opinion Report: A New Sensibility: This report is based on a review of about fifty public opinion surveys and polls, most of them conducted between 2014 and June 2016.
I suspect most, if not all, of this report's various sections will be of interest to readers. And I hope it is useful for all to see what is listed as 10 action items under the "Encourage Equitable Sentencing" section. That section starts this way and they has these 10 "Solutions and Actions to Encourage Fair Sentences":
We all want a criminal justice system that treats people fairly, takes a pragmatic and responsible approach, and ultimately, keeps us safe. When we’ve reached the point of deciding to deprive someone of their liberty, we have to be particularly fair and responsible and consider all options. Sentences should consider a range of factors and reflect the severity of the crime. We owe it to ourselves, our justice system, and to those being imprisoned to ensure that our sentencing practices are thoughtful and fair. Nonetheless, the explosion of the American prison population is largely due to sentences that are disproportionate to the severity of crimes. Prisons and jails are filled by many people who pose no threat to their communities. Laws that impose mandatory minimums contribute to mass imprisonment. Sentencing laws should be reformed to require transparency and mandate equitable practices that ensure that sentences are appropriate to the particular circumstances of an offense.
1) Repeal “Truth-in-Sentencing” and “Three-Strikes” Law...
2) Repeal Mandatory Minimums...
3) Use Alternatives to Incarceration...
4) Prohibit Incarceration for Failure to Appear...
5) Revise Sentencing Guidelines...
6) Commit to Cutting Incarceration in Half...
7) Collect Data...
8) Train Judges on Implicit Bias...
9) Appoint Judges from Diverse Backgrounds...
10) Evaluate Ability to Pay
October 26, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)
Sunday, August 21, 2016
Detailing the inefficacy of sex offender residency restrictions in Milwaukee
The Milwaukee Journal Sentinel has this lengthy new article about the problems created by a residency restriction for sex offenders in place in Wisconsin's largest city. The article is headlined "Sex offender ordinance hasn’t worked as planned, putting public at greater risk," and here are excerpts:
In the two years since Milwaukee leaders enacted the residency ordinance as a way to push sex offenders out of the city, little has gone as planned. Rather than reducing the number of sex offenders, the ordinance has put more than 200 of them in the street and failed to keep new offenders from moving into the city, a Journal Sentinel analysis has found.
Experts say the increase in homeless sex offenders could put the public at greater risk. Studies show that without a permanent home, the lives of offenders become more unstable, increasing the chance they will re-offend. “Somebody might feel safer today because this one person doesn’t live on their block. But as a community, we are not safer, and this is not sustainable,” said Holly Patzer, executive director of Wisconsin Community Services, a nonprofit advocacy group focused on criminal justice and public safety.
The ordinance bans many sex offenders from living within 2,000 feet of areas where children are commonly found, such as schools, parks and day care centers. In Milwaukee, that means hundreds of sex offenders are limited to 117 possible housing units. And even those 117 units might not be available to rent or buy.
When the Milwaukee Common Council voted 8-6 to approve the ordinance in 2014, supporters said it would protect the public by pushing more offenders out of the city and into the suburbs, where a disproportionately low number of the county’s offenders lived. Supporters also argued the extremely restrictive rules would send a message to lawmakers in Madison: that Wisconsin needs a statewide sex offender residency law, rather than a patchwork of local ordinances.
But an analysis of state and Milwaukee sex offender registries shows those goals haven’t been achieved since the vote:
■ The number of homeless sex offenders in Milwaukee County has spiked, rising from about 15 in early 2014 to 230 this summer. Milwaukee police officials warned in 2014 that homelessness would increase, but a lead sponsor of the ordinance, Ald. Tony Zielinski, said he didn’t believe them.
■ Milwaukee County suburbs continue to house a disproportionately low share of the region’s sex offenders. In fact, their proportion — about 10% of county offenders — is virtually unchanged since the ordinance was passed.
■ Hundreds of offenders deemed “affected” by the ordinance — and thus, effectively banned from living in Milwaukee — continue to reside in the city, flouting the ordinance and accepting periodic fines.
■ The ordinance hasn’t prodded the Legislature to enact a statewide sex offender residency law, though there is renewed optimism it could happen soon.
Ald. Michael Murphy, who sympathized with supporters of the 2014 ordinance but voted against it, voiced concern at the time that the measure would increase homelessness among sex offenders and cause a greater threat to public safety. Murphy said he’s “still very fearful” about the number of homeless offenders. “My concern is that these offenders will re-offend, and everybody will be pointing fingers,” he said.
Although the data suggests the ordinance hasn’t worked as expected, some local leaders said they have no plans to make any changes. Zielinski said the ordinance has protected residents and stopped some sex offenders from moving into local communities. However, he could not provide specific examples to support his view.
Zielinski also accused the Wisconsin Department of Corrections of “fudging the numbers” of homeless Milwaukee offenders. Likewise, he didn’t provide evidence to prove the allegation, saying only that the department has been slow to provide him with accurate data in the past. “I’d have to check those numbers, but I know we have prevented a number of serious sex offenders from moving to Milwaukee,” Zielinski said. “The only thing I can tell you for sure is that Milwaukee did the right thing. Otherwise, we would have continued to be a dumping ground for state sex offenders.”...
[In 2014] four aldermen proposed their own ordinance: sex offenders who met certain requirements couldn’t live within 2,000 feet of schools, day care centers, parks, recreational trails, playgrounds or areas where children are known to congregate. Any offender in violation could be fined $1,000 to $2,500 per day. The aldermen argued the ordinance was the city’s best hope of forcing state officials, who had largely ignored their concerns, to pass a statewide residency law. “Although this may be seen as a punitive measure, I’m hoping that this sends a shot across the bow to the ones who really control the whole system and methodology of how we place sex offenders (in) the state of Wisconsin,” then-Ald. Joe Davis Sr. said.
But officials from the state Department of Corrections and Milwaukee Police Department warned that rather than moving to the suburbs, many sex offenders would stay in the city and become homeless. In turn, they said, it would be difficult to track offenders and recidivism rates could rise. Then-police Inspector Carianne Yerkes told members of a council committee that she worried the city’s ordinance wouldn’t prod state leaders into action. “I don’t know how long we can wait for that, and I’m afraid of what will happen in between,” said Yerkes, who has since been promoted to assistant chief.
Ultimately, the council passed the ordinance, Mayor Tom Barrett signed it into law in July 2014, and the rules went into effect in October 2014. Two years later, the city is seeing the practical effects of the ordinance:
■ The percentage of homeless sex offenders in Milwaukee County has jumped from less than 1% in early 2014 to 9% in mid-2016, according to an analysis of Department of Corrections data. Most homeless offenders are still on GPS monitoring and have to check in weekly with the state, but they have no permanent residence.
■ Sex offenders haven’t moved out to the suburbs en masse, doing nothing to dispel the “dumping ground” perception. About 10.5% of the county’s offenders live in the suburbs now, compared with 11% in early 2014.
■ The city continues to add hundreds of new sex offenders, despite the new rules. Department of Corrections data shows that at least 380 Milwaukee sex offenders have either moved into the city or been added to the registry since early 2014. The city has about 100 more offenders today than it did in 2014....
The ordinance hasn’t forced sex offenders out of the city for two primary reasons: most sex offenders are exempt from the rules, and others have willfully violated them. Milwaukee Police Department data shows about three-quarters of offenders living in the city are exempt because they were grandfathered in, live with family or aren’t required to follow the ordinance because of the nature of their crimes. The Common Council wrote those exemptions into the ordinance.
Among the 620 offenders in the city who aren’t exempt, about 460 have city addresses, putting them in violation of the ordinance. The remaining 160 are homeless or don’t list addresses. Milwaukee police have issued tickets to most of the 460 offenders, generally fining them about $1,000 to $1,300 per incident. Dozens of other offenders have received warnings or notices of violation.
“When MPD discovers an offender in violation, enforcement action is taken,” the police department said in an email. But those citations — most of which were issued between December and June — haven’t been enough to force hundreds of offenders to leave the city. Several offenders have been issued three citations, yet they continue to reside in Milwaukee.
Tuesday, August 16, 2016
"Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism"
The title of this post is the title of this notable paper by J.J. Prescott now appearing on SSRN. Here is the abstract:
The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence that these laws work to reduce sex offender recidivism (despite years and years of effort), and some evidence (and plenty of expert sentiment) suggests that these laws may increase sex offender recidivism.
In this Article, I develop a more comprehensive economic model of criminal behavior — or, rather, I present a simple, but complete model — that clarifies that these laws have at best a theoretically ambiguous effect on recidivism levels. First, I argue that the conditions that must hold for these laws to increase the legal and physical costs of returning to sex crime are difficult to satisfy. There are simply too many necessary conditions, some of which are at odds with others. Second, I contend that even when these conditions hold, our intuitions mislead us in this domain by ignoring a critical aspect of criminal deterrence: to be deterred, potential offenders must have something to lose. I conclude that post-release laws are much more likely to succeed if they are combined with robust reintegration efforts to give previously convicted sex offenders a stake in society, and therefore, in eschewing future criminal activity.
August 16, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)
Saturday, August 13, 2016
"The Drug Court Paradigm"
The title of this post is the title of this notable new article by Jessica Eaglin now available via SSRN. Here is the abstract:
Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.
This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.
This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.
I am putting this article on my must-read list because the author is 100% right when noting that "few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts." Indeed, I have been surprised about how little active discourse about drug courts there has been in recent years in academic and policy circles.
August 13, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)
Friday, August 12, 2016
"Let’s Talk About Sex: Defining 'Sexually Oriented or Sexually Stimulating' Material in Sex Offender Contacts"
A helpful reader altered me to this intriguing student note authored by Ricardo Roybal. Here is how it gets started:
Sex offenders are perceived to be the “scourge of modern America, the irredeemable monsters that prey on the innocent.” As this quote indicates, sex offenders are painted by society with a single, rough brush. This view, facilitated by a handful of high-profile sexual assaults involving children in the early 1990’s, led to legislative action.
In New Mexico, the Sex Offender Registration and Notification Act (“SORNA”) requires individuals convicted of a sex crime to comply with various restrictions specified in “Sex Offender Supervision Behavioral Contracts.” Among the limitations in these sex offender contracts is a ban on viewing or possessing any “sexually oriented or sexually stimulating” materials.
In State of New Mexico v. Dinapoli, the New Mexico Court of Appeals addressed the constitutionality of this provision in a sex offender contract. In the case, the sex offender, Robert Dinapoli, was deemed to have violated this provision because he possessed three mainstream DVDs — the American and Swedish versions of The Girl with the Dragon Tattoo, and a third film titled I Spit on Your Grave. Dinapoli objected on the grounds that the he was deprived of notice due to the broad and vague structure of the violated term.
The Court of Appeals rejected this argument and accordingly ruled that Dinapoli was afforded proper notice and dismissed the contention that the condition was overly broad or vague.
This Note focuses on this issue and aims to resolve it. This Note argues that the provision prohibiting “sexually oriented or sexually stimulating” materials in Section 6(A) of the New Mexico sex offender contract is overbroad and impermissibly vague. As a result, this provision is prone to arbitrary and biased decision-making, and fails to provide proper notice to the offender as to what conduct it prohibits.
Thursday, August 11, 2016
Second Circuit panel rules that district court lacks ancillary jurisdiction to expunge a valid conviction
As noted in this new post at the Collateral Consequences Resource Center, which is headlined "Federal expungement order reversed on appeal," the Second Circuit today ruled on the federal government appeal of former US District Judge John Gleeson remarkable ruling in Doe v. US, 110 F. Supp. 3d 448 (EDNY May 21, 2015) (discussed here) ordering expungement of old federal fraud conviction. Here are excerpts from the majority opinion in Doe v. US, No. 15-1967 (2d Cir. Aug. 11, 2015) (available here):
We conclude that the District Court did not have jurisdiction over Doe’s motion pursuant to 18 U.S.C. § 3231 because Doe’s conviction was valid and the underlying criminal case had long since concluded....
Relying on Kokkonen, Doe argues that the District Court’s exercise of ancillary jurisdiction served to “vindicate its sentencing decree” issued in 2002. Appellee’s Br. 27. The District Court phrased the same point slightly differently by characterizing its original decree as having “sentenced [Doe] to five years of probation supervision, not to a lifetime of unemployment.” Doe, 110 F. Supp. 3d at 457.
We reject Doe’s argument. The District Court’s sentence had long ago concluded and its decrees long since expired by the time Doe filed her motion. Under those circumstances, expunging a record of conviction on equitable grounds is entirely unnecessary to “manage [a court’s] proceedings, vindicate its authority, [or] effectuate its decrees.” Kokkonen, 511 U.S. at 380. “Expungement of a criminal record solely on equitable grounds, such as to reward a defendant’s rehabilitation and commendable post‐conviction conduct, does not serve any of th[e] goals” identified in Kokkonen’s second prong. Sumner, 226 F.3d at 1014; see also United States v. Lucido, 612 F.3d 871, 875 (6th Cir. 2010) (holding that a district court lacked jurisdiction to consider a motion to expunge records of a valid indictment and later acquittal because “[t]hese criminal cases have long since been resolved, and there is nothing left to manage, vindicate or effectuate”).
Thursday, August 04, 2016
"A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels"
The title of this post is the title of this notable paper authored by Brian Murray and now available via SSRN. Here is the abbstract:
In the past decade, due to heightened interest in criminal law reform, several states have enacted specific laws attempting to expand the range of expungement remedies available to individuals with publicly available criminal records. This article evaluates these efforts.
It begins with a discussion of the pervasive availability of arrest and conviction records, both publicly and privately. It then surveys the myriad collateral consequences that enmesh individuals who have made contact with the criminal justice system and details how jurisdictions have responded with somewhat unambitious expungement regimes. It notes that while these remedies were crafted with good intentions, they were often limited by skepticism of the soundness of their legal basis.
The article proceeds to evaluate a few legislative efforts at the state level that are geared towards increasing relief, discussing the texts of the laws in depth and comparing them with previously existing remedies. The article also evaluates recent federal legislative efforts and efforts in the federal courts to allow for expungement at the federal level. The piece concludes by situating these recent reforms within a broader discussion about how to alleviate the effects and collateral consequences of criminal records.
Monday, August 01, 2016
Quickly responding to (nonexistant?) problem, NY Gov bars paroled sex offenders from playing Pokemon Go
As reported in this New York Daily News article, headlined "Cuomo orders Pokémon Go prohibition for sex offenders on parole," the chief executive of a state has decided he must chiefly concern himself with who plays with a new video game. Here are the details (with one seemingly important fact from the story highlighted):
For sex offenders in New York, it will be Pokémon No Go. Gov. Cuomo Sunday ordered that the state make it a condition of parole for sex offenders that they stay away from Pokémon Go and similar interactive games, the Daily News has learned.
The state Department of Corrections and Community Supervision is barring all registered sex offenders under supervision from downloading, accessing, or playing such Internet gaming activities, under the directive.
Roughly 3,000 predators currently on state parole will be immediately impacted, state officials said. The state will also be sending guidance to the counties around the state that supervise another 5,000 lower level convicted sex offenders urging them to adopt the new policy.
"Protecting New York's children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Cuomo said. "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children."
The Pokémon Go app sends players on a hunt to catch digital Pokémon characters. If a sex offender is caught playing the game in New York, it would be a violation of the terms of their parole and they could be returned to prison, a Cuomo aide said.
Cuomo also sent a letter to software developer Niantic Inc. to request assistance in keeping Pokémon Go out of the hands of sex predators. "The State has taken action to prohibit sex offenders from using this game, but we need your assistance to make certain that sex offenders will not continue to use Pokémon GO by technologically barring their use," Cuomo wrote in the letter. "Working together, we can ensure that this danger today does not escalate into a tragedy tomorrow."
The governor also directed the Department of Criminal Justice Services to provide Niantic with the most recent version of the state's sex offender registry in the hopes the company will use the list to keep people from having access to the app. The Department of Criminal Justice Services will also contact Apple and Google "to inform them of these public safety concerns and work with them to enhance user safety," Cuomo said.
The order and letter came two days after state Sens. Jeffrey Klein and Diane Savino released a report titled "Protecting Our Children: How Pokémon Go and Augmented Reality Games Expose Children To Sex Offenders." After sending staffers over a two-week period to more than 100 homes of level-2 and level-3 sex offenders in the city, the senators found that characters generated by the Pokémon Go app appeared 57% of the time. That figure rose to 73% when related items like PokeStops and Pokémon gyms are factored in, the report showed. The two senators called for passage of legislation that would keep young children and other players at least 100 feet away from a convicted sex offender's home.
Officials have also expressed concern that a feature of Pokémon Go called a "lure" can make it easier for sex predators to tempt potential victims to come to their homes. Savino on Friday said there's no evidence to any kids were sexually abused after being lured by the Pokémon app.
In light of the last line I have highlighted above, suppose New Yorkers should be grateful that state officials have been so quick to deal with the problem of "Poke Perves" even before such a problem even exists. Sigh.
Monday, July 25, 2016
"Does 'Ban the Box' Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden"
The title of this post is the title of this notable new paper authored by Jennifer Doleac and Benjamin Hansen now available via SSRN. Here is the abstract:
Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from conducting criminal background checks until late in the job application process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable. This would worsen employment outcomes for these already-disadvantaged groups.
In this paper, we use variation in the details and timing of state and local BTB policies to test BTB’s effects on employment for various demographic groups. We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men. These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.
Thursday, July 14, 2016
Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record
According to the latest headlines and alerts on my smart phone, the word today is that GOP Prez candidate Donald Trump is poised to select Indiana Gov Mike Pence as his running mate. As a supporter of sentencing reform, I am disappointed a bit that Newt Gingrich did not make the cut, as he has been a recent vocal and repeated supporter of the "Right on Crime" sentencing reform efforts. (That said, Newt often sounded like a member of the tough-and-tougher GOP crowd in the past, and thus I would not have felt confident that even a Newt pick would signal a Trumpian affinity for sentencing reform.)
Gov Pence's record on criminal justice reform is decidedly mixed, and these linked press stories about various aspects of his work as Indiana's chief executive document the basics:
From May 2013 here, "Indiana Gov. Mike Pence signs sentencing, expungement bills into law":
Indiana Gov. Mike Pence has signed bills to revamp the state's felony sentencing laws and give some offenders the ability to expunge their records. "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," Pence said in a statement.
The sentencing legislation — House Bill 1006 — is the product of three years of work by lawmakers, judges, prosecutors and others. It's the first wholesale overhaul of the criminal code since the 1970s. It will move Indiana's system of four felony classes to one that has six felony levels. It also requires offenders to serve 75 percent of their sentences instead of the 50 percent currently required....
Pence had expressed concerns about an earlier version of the bill, saying it was too soft on offenders convicted of drug crimes. But lawmakers made changes that appeased the governor. Pence said Monday that the bill will "reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses."
House Bill 1482 gives those Hoosiers previously convicted of crimes the opportunity to essentially have their records wiped clean — if they've had a sustained period without a new offense. The bill sets different standards for different crimes.
Pence the bill will strengthen their opportunities for gainful employment. Businesses will no longer be able to ask applicants if they've been convicted of felonies. Instead, they'll have to ask if they've been convicted of felonies that have not been expunged. The new law "will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens," Pence said.
From March 2016 here, "Pence reinstates mandatory minimum prison terms for some drug crimes":
Gov. Mike Pence is toughening his stance toward drug dealers ahead of a likely bruising re-election campaign where he'll have to answer for Indiana becoming the nation's methamphetamine capital on his watch. The Republican signed into law House Enrolled Act 1235 on Monday, reinstating a 10-year mandatory minimum prison term for a person convicted of dealing meth or heroin who has a prior conviction for cocaine, meth or heroin dealing.
"Drug-abuse problems are not unique to our state, but I'm determined to meet this challenge head-on," Pence said. "We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."
An analysis of drug-dealing convictions since criminal sentencing reform was enacted in 2014, conducted by the nonpartisan Legislative Services Agency, found just four of the 119 individuals convicted of meth or heroin dealing had a prior conviction and were sentenced to less than 10 years in prison — receiving on average 7.5 years.
More concerning for some lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes, is Pence reversing course on his past actions to eliminate mandatory minimums by now reducing the ability of judges to issue the appropriate sentence for each criminal and giving prosecutors the upper hand in plea bargaining with an accused.
Given this governing histry, I am inclined to call Gov Pence comparable to Prez candidate Trump (and also Prez candidate Clinton) in the arena of criminal justice reform: if you try hard enough, you can readily find a basis to be very encouraged or a basis to be very discouraged by his statements and record.
Alaska joins ever-growing list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":
The criminal justice reform bill makes a number of very positive changes. A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.
Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91. The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.
For the past decade, criminal justice policy has been developed without data or research. That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.
Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country. Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.
Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services. Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade. The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).
These reforms are working in other states:
• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.
• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.
• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.
• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.
All of these states reduced their prison populations and reinvested in crime-reduction strategies.
The current approach in Alaska is not working. It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver. More time in the shop with the same limited tools won’t fix the car. Senate Bill 91 provides more tools.
About 9 in 10 of our prisoners will eventually return to our communities. Our task is to ensure proper supervision and treatment to change criminal behavior. Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.
Monday, July 11, 2016
PBS widely premiering sex offender documentary "Prevert Park"
As detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:
Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction. It looks like your average trailer park, but this is the place 120 residents call home. Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.
There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years. But the film offers a mindset-challenging look at this deeply stigmatized category of criminals. According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”
The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.
A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children. Will says he was “fondled by a babysitter when I was 6 years old.” As an adult, he exposed himself to a young girl and spent several years in jail.
A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.” She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son. According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....
Pervert Park raises significant questions. Should America give these criminals a second chance? And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?
“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney. Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case. “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”
“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst. These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives. And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.
“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence? If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”
Wednesday, July 06, 2016
Deep dives into realities of sex offender registries two decades after they started to proliferate
Vox has these two lengthy new pieces looking at the realities of sex offender registries:
Here is an extended excerpt from the first of these pieces:
The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....
Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.
Yet the sex offender registry is still going strong.
It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.
Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.
Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.
This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.
Tuesday, July 05, 2016
Detailing how challenges go up for federal probation officers as the federal prison population does down
The Wall Street Journal has this interesting new article discussing one of many echo effects of a large number of federal prisoners being released early in recent years due to various federal sentencing developments. The article is headlined "Changes in Sentencing Policy Raise Pressure on Probation Officers: Wave of early inmate releases raises concerns over preventing relapses among high-risk population." Here is how it gets started:
Karrie Springstead tries not to stand directly in front of the ex-inmate’s apartment door as she knocks. The veteran probation officer doesn’t expect trouble, but she never knows who might be on the other side. “It’s the third party that makes me a little more leery,” says Ms. Springstead, 31 years old. “It’s the people you don’t know, and they don’t know me.”
Ms. Springstead is one of 5,500 federal probation officers who oversee roughly 180,000 people across the country. The current push for shorter prison sentences is putting more work on the force, federal officials say, and raising concerns that critical details might be missed that could prevent relapses among a high-risk population.
Overhauling the criminal-justice system, including shorter sentences, is a hot topic in Washington, with some Democrats and Republicans increasingly coalescing behind a view that incarceration times have gotten too long. Even before any major bills have passed, however, federal officials have begun chipping away at sentences. Since 2010, 14,100 people have been freed early because of changes in sentencing law and policies, according to the Administrative Office of the U.S. Courts, and the federal probation case load has increased 7% since 2010. In the same period, the budget of the U.S. Office of Probation and Pretrial Services Office rose 0.5%, to $902 million.
The proportion of federal ex-inmates whose probation has been revoked dropped to 27% in 2015 from 29% in 2010. That decline has been attributed in part to improved risk assessments that are more sophisticated than previous ones and include a wider array of factors, from an offender’s education levels to family makeup.
But probation officials say the drop is due chiefly to the fact there are fewer officers, relative to the number of ex-inmates, to spot violations, so more offenders are remaining free. “There is a tie between revocation rates going down and a shortage of officers in the community checking on people,” said Steve Skinner, chief of the federal probation office in Oklahoma City, where Ms. Springstead works....
A change in 2014 by the U.S. Sentencing Commission to the way drug sentences are calculated shows the potential impact. The federal probation office asked for a year to prepare for the change, and hired 388 new probation officers, though attrition cut the net gain to 150, said Matthew Rowland, who heads the office. As a result of the sentencing change, a service that usually gets about 1,130 new charges a week got about 5,000 in the space of a weekend around last Nov. 1. Another 26,000 will be released early in coming years due to the change, according to the U.S. Sentencing Commission.
Thursday, June 30, 2016
Split Iowa Supreme Court upholds state's broad felon disenfranchisement provisions
As reported in this local article, headlined "Iowa Supreme Court upholds ban on felons voting in Iowa," a divided state Supreme Court rejected a challenge to Iowa's felony disenfranchisement laws. Here is how the press report on the decision starts:
The Iowa Supreme Court ruled against an expansion of voting rights for convicted criminals on Thursday, finding that all felonies are "infamous crimes" resulting in disenfranchisement under the state constitution. The 4-3 decision upholds what critics say is one of the harshest felon disenfranchisement laws in the nation, and means the state will not see a significant shift in voter eligibility ahead of the 2016 election.
Iowa's top elections officer immediately cheered the ruling, while criminal justice reform advocates said they would begin exploring their options for constitutional and legislative reforms. "This ruling goes in line with 150 years of precedence and has been reaffirmed by the people of Iowa and their elected representatives on multiple occasions," Iowa Secretary of State Paul Pate said in a statement. Pate's office oversees elections in the state, and he was named as the defendant in the case.
The American Civil Liberties Union of Iowa, which argued the case before the court, had sought to limit disenfranchisement to a handful of felonies directly relating to elections and governance. If the court had upheld that view, thousands of Iowans with felony convictions could have had their voting rights restored ahead of this November's presidential election. "This is no way (to) run a democracy," ACLU attorney Rita Bettis said in a statement following the decision. The group now intends to draft a constitutional amendment allowing offenders to vote after completing their sentences.
The lengthy ruling from the Supreme Court of Iowa is available at this link, and the majority opinion authored by the court's Chief Justice gets started this way:
This appeal requires us to decide if the crime of delivery of a controlled substance is an “infamous crime” under the voter disqualification provision of the Iowa Constitution. The district court held the crime is an infamous crime, and a conviction thereof disqualifies persons from voting in Iowa. Following the analysis we have used in the past to interpret provisions of our constitution, we agree and affirm the judgment of the district court.
The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.
Among other interesting aspects of this ruling is the wide array of cites to recent legal scholarship appearing in both the majority opinion and the longest dissent. (I bring that fact up not only because it makes me pleased given how much time I give to reading and writing such scholarship, but also because it helps reinforce my belief that Judge Posner is way off base with some recent (and past) comments about the legal academy failing to work on projects of any interest and importance to the bench and the practicing bar.)
"The Power of Pell Grants for Prisoners"
The title of this post is the headline of this new New Yorker commentary authored by Clint Smith. Here are excerpts:
Last Thursday, the Obama Administration selected sixty-seven colleges and universities across twenty-seven states to participate in the Second Chance Pell Pilot Program, which aims to “create a fairer, more effective criminal justice system, reduce recidivism, and combat the impact of mass incarceration on communities.” The new initiative could make Pell Grants available to as many as twelve thousand people behind bars. Secretary of Education John B. King, Jr., made sure to address the aforementioned concerns around funding head on, stating that the resources allotted to the pilot program make up less than 0.1 per cent of the thirty-billion-dollar Pell Grants program, and will in no way cut into funding for current or future Pell Grant recipients who are not incarcerated.
As advocates of prison education might note, twelve thousand is a small proportion of the 2.3 million people currently in prison. But the executive action by the Obama Administration is a progressive step forward on correctional education, especially given that legislation like the Restoring Education and Learning (real) Act — which would eliminate the provision in the crime bill barring prisoners in state or federal institutions from Pell Grant eligibility — remains stalled in Congress. Social scientists have known for some time that prison-education programs are a cost-effective and successful means of reducing recidivism. A study by the rand Corporation in 2013 found that incarcerated individuals who participated in educational programs were forty-three per cent less likely to recidivate within three years than those who did not. It also found that correctional education increased the likelihood of obtaining employment once released, with those who participated in programming during their time behind bars thirteen per cent more likely to obtain a job than those who did not....
Being incarcerated does not mean being devoid of the capacity to learn, grow, and think, and it’s critical that prisons provide spaces where learning can be both cultivated and encouraged.
This is what makes the Obama Administration’s program so important. Pell Grants provide resources that assist colleges in building their capacity in prisons, by covering the cost of books, tuition, and fees. But, though certainly beneficial to those men and women who will receive the grants, there are limits to what the program offers. For example, to qualify, a person must be eligible for release within five years of enrolling, which doesn’t address the educational needs of those serving long-term or life sentences.
The benefits of prison education go beyond lowering recidivism rates and increasing post-release employment. It can also rekindle a sense of purpose and confidence. For Jackson, participating in the Boston University prison-education program, and moving closer to obtaining a bachelor’s degree, has fundamentally changed his sense of self — and increased the likelihood that he’ll stay out of prison if the parole board approves his release. The Second Chance Pell Pilot Program means that more people like Jackson will have an opportunity to take college-level classes, improving their chances of remaining out of prison and also of giving them back a sense of purpose that has otherwise been stripped away. Or, as Jackson said about his work, it’s “like you’re doing something with your life.”
Saturday, June 25, 2016
"Trauma Informed Juvenile Justice"
The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.
This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.
Tuesday, June 21, 2016
Bureau of Justice Statistics releases new detailed report on recidivism of federal offenders
This official press release reports on some of the interesting highlights of this interesting new report from the Bureau of Justice Statistics about recidivism rates and patterns for federal offenders. The report is formally titled "Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010." Here is the text of the BJS press release on the report:
Of the nearly 43,000 federal offenders who were placed on federal community supervision in fiscal year 2005, an estimated 43 percent were arrested at least once within five years of their placement, the Bureau of Justice Statistics (BJS) announced today. An estimated 18 percent of these offenders were arrested at least once within one year of placement on community supervision and 35 percent were arrested at least once within three years of placement.
An estimated 80 percent of offenders who were placed on federal community supervision in 2005 were male. More than a third (41 percent) were white and nearly a third (31 percent) were black. An estimated 28 percent were age 29 or younger and about 42 percent were age 40 or older.
The first arrest offense for federal offenders after placement on community supervision varied by federal and nonfederal offenses. Among federal offenses, public order offenses, such as probation violations, accounted for 90 percent of first arrests of federal offenders after placement on community supervision, compared to 33 percent of first arrests for nonfederal offenses.
In comparing federal and state prisoners placed on community supervision, almost half (47 percent) of federal prisoners were arrested within five years, compared to more than three-quarters (77 percent) of state prisoners. Nearly a third (32 percent) of federal prisoners returned to prison within five years of their release to community supervision, compared to more than half (59 percent) of the state prisoners.
Other findings include —
Nearly a quarter (23 percent) of federal offenders on community supervision were directly sentenced to probation, while more than three-quarters (77 percent) began a term of community supervision following release from prison.
An estimated 70 percent of federal offenders on community supervision had at least one prior nonfederal arrest, and more than a third (35 percent) had four or more prior nonfederal arrests.
Monday, June 20, 2016
"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"
The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:
“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.
To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.
Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.
June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Sunday, June 19, 2016
"Collateral Consequences and the Preventive State"
The title of this post is the title of this article by Sandra Mayson just posted to SSRN. Here is the abstract:
Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.
This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.
Sunday, June 05, 2016
Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process. The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:
Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin. The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing. The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.
Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.
Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders. They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.
Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs. The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?” Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.
Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision. “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.
Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools. Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.
Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women. COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.
The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”
June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Thursday, June 02, 2016
Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense
Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:
Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”).
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.” He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon. The government identified what it described as the “handful” that are “potentially relevant.” The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption. She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”
The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.” Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.” David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
Prior related post:
- Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
Wednesday, June 01, 2016
"Correctional Control: Incarceration and supervision by state"
The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):
Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.
Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.
Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population. We find that for every 100 people incarcerated in a state prison in that state:
- Maine has 1 person on parole.
- Florida has 4 people on parole.
- Arkansas has 117 people on parole.
- Pennsylvania has 198 people on parole.
June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Examining the high costs of expungement process in some jurisdictions
The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes. The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:
Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay. But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.
While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach. In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.
In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report. Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies. Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.
Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible. Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive. “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”
In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce. Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund. In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat. At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.
Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.
Monday, May 30, 2016
New Vera Institute report reviews trends in state sentencing and corrections
The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text:
Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.
Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to
create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;
reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and
support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.
Monday, May 23, 2016
"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"
The title of this post is the title of this notable new paper now available via SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.
The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.
ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:
[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.
Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.
In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.
We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.
When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.
We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
- The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
- White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”
Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)
May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Tuesday, May 17, 2016
Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections
A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment. Here are links to the opinions and the summary that appears at the start:
People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):
This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.
The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment. In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.
People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):
The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.
Sunday, May 15, 2016
Is it fair for me to worry that drug war distractions contribute to "a revolving door for violent offenders" in DC?
The question in the title of this post is prompted by this lengthy new Washington Post article headlined "How an accused rapist kept getting second chances from the D.C. justice system," which is the "first installment in a series that will examine issues related to repeat violent offenders in the District of Columbia." I am pleased to see the Post giving attention to how repeat violent offenders manage to avoid serious punishments, but I hope that the series will get around to exploring my enduring concern that repeat violent offenders can too often and too readily exploit cracks within any justice system overworked and overloaded from treating drug problems as primarily criminal justice concerns. These enduring concerns aside, here are excerpts from the Post's story that serve as an introduction to the troubling tale that follows:
The 40-year-old woman, described in court papers as 5 feet tall and 100 pounds, suffered fractures in her eye socket and cheekbone. The alleged perpetrator, 21-year-old Antwon Durrell Pitt, had an extensive criminal history, including eight arrests in four years and a robbery conviction. Three times, he was sentenced under laws designed to promote leniency and second chances for inexperienced adult offenders. In two of those cases, he was sentenced under the District’s Youth Rehabilitation Act, a 1980s-era law aimed at “deserving” offenders under the age of 22.
Pitt’s case shows that such laws, combined with lax enforcement by key federal agencies, can give many chances to violent offenders despite repeated criminal behavior and the failure to abide by terms of release, according to a Washington Post review of court records, transcripts and probation reports.
The D.C. criminal justice system relies on a mix of federal agencies and D.C. judges to swiftly intervene and communicate vital information to protect the public from violent offenders. In the crucial weeks before the rape, a D.C. Superior Court magistrate judge and two federal agencies — the Court Services and Offender Supervision Agency (CSOSA) and the U.S. Parole Commission — failed to work together to take Pitt off the streets.
Pitt’s behavior raised many red flags, indicating escalating risk. Just out of prison last summer after serving a robbery sentence, Pitt did not report for some of his court-ordered drug testing and anger management sessions. He did not keep in contact with his supervision officer. And in a final act of defiance, Pitt cut off the GPS monitoring bracelet affixed to his ankle and let the battery run dead. He was completely off the grid.
CSOSA, the federal agency charged with watching D.C. offenders released from prison, did not request a warrant for Pitt’s arrest for 15 days after losing contact with him. The Parole Commission waited a week after getting that request before forwarding it to law enforcement. And the magistrate judge denied a prosecutor’s request to keep Pitt behind bars, despite a troubling report from the Pretrial Services Agency. “No conditions or combination of conditions can reasonably assure the defendant’s appearance or safety to the community,” said the report that was given to magistrate William Nooter.
The District’s Youth Rehabilitation Act was passed in 1985 to give youthful adult offenders a chance to have their records wiped clean from public view if they successfully complete their sentences, even those who commit violent crimes, with the exception of murder and a second crime of violence while armed....
At a time when the Obama administration and Congress are working to ease “mandatory minimum” sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African Americans, D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets. The District, for example, has seen a near doubling in the percentage of homicide suspects with prior gun-related arrests. “Sometimes, we just scratch our heads,” D.C. police Chief Cathy L. Lanier said. “We feel like there’s a revolving door for violent offenders. It’s very frustrating for us because we see the victim, and we see the impact on the victim.”
Tuesday, May 10, 2016
Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release
A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:
Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.
Friday, May 06, 2016
Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences
A helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts. I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below. These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:
I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.
Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.
During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance. One also would have thought that ex-offenders were essentially indistinguishable from non-offenders. Further research revealed this to be far from the truth....
The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely. Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended. Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....
We can rest assured, then, that a substantial number of released prisoners will re-offend. Who are their victims likely to be? It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men. Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well. Those African-American men will then return to their communities, which are more likely to be predominantly African-American. It is therefore likely that the victims of those released early will also be disproportionately likely to be black. This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group. White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black. If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated. But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....
There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime. If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.
Monday, May 02, 2016
Digging deeply into Virginia's crowded prisons and parole paractices
A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state. The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:
Part One: Virginia Has Lowest Parole Rate in the Nation: It’s been more than 20 years since Virginia abolished parole, and over that time the prison population has grown to more than 30,000 people. Just over 10% of them committed crimes before the law changed, so they’re still eligible for parole, but few of them are getting out, and the state now spends more than a billion dollars a year on prisons and correctional programs.
Part Two: Secret Proceedings Offer Little Hope of Parole: Virginia abolished parole in 1995, but people who committed crimes before then — more than 3,300 of them — are still eligible, and a board of five people decides who gets out.
Part Three: Why the Parole Board Rarely Paroles: In a survey of 1,000 Virginians, 75% said the prison population is costing too much — nearly $28,000 per inmate per year. Two-thirds thought the correctional system should reinstate parole, allowing early release for those inmates who are unlikely to commit new crimes. Even people who considered themselves conservative supported that idea by a margin of two to one. Still, Republicans in the legislature oppose parole, and the board empowered to release people who were convicted before parole was abolished frees only a few inmates each year.
Part Four: Paring Virginia's Prison Population: Last year, Governor McAuliffe set up a commission to explore the possibility of reinstating parole — a system of early release for prisoners who follow the rules and are unlikely to commit new crimes. After months of hard work, the group decided not to make a recommendation. Republicans in the legislature had already made it clear they would not support parole. Instead, the commission issued a 50-page report on other ways to reduce its prison population.
Conclusion: Five Years in Prison for Pot: Lawmakers who oppose liberalizing Virginia’s marijuana laws claim no one goes to jail for possessing small amounts of the drug, but a second offense or selling pot does put people in prison. With four states now allowing businesses to profit from the sale of marijuana — and taxing those transactions, some Virginians now question the wisdom of spending nearly $28,000 a year to lock people up for using or even selling marijuana.
Saturday, April 30, 2016
Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation
The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision. Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:
Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”
“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.
The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.
Thursday, April 28, 2016
Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"
Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):
Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential. But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....
The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago. African-American women are more than twice as likely to be in prison than white women.
But women aren't the only ones affected when they are sent to prison. The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children. Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.
We can't go on like this. It is time we reform our broken criminal justice system. First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing. Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up. We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.
And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released. I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs.
Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes. Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.
And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society. Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison. "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough. In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....
Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer. Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions. We say we are a nation of second chances — and it's time that we act like it.
I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders. That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive." Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?
April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)
Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons. Here is a sampling:
From The Atlanic here, "The Racist Roots of Virginia's Felon Disenfranchisement: A century ago, the commonwealth's leaders weren't circumspect about their motives."
From the Chicago Tribune here, "Why felons should be allowed to vote"
From Fox News here, "Virginia's governor, Hillary Clinton and the felon vote"
From Huffington Post here, "Americans Don’t Think Ex-Offenders Should Lose Their Right To Vote: Millions aren’t allowed to vote, but Americans want that to change."
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
Wednesday, April 27, 2016
"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"
The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:
This paper examines the significant flaws in state occupational licensing criminal background check requirements. One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records. As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors. In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.
Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health. No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.
License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions. Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.
Tuesday, April 26, 2016
Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law
This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:
Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.
Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”
That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.
The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.
SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”
“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....
Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.
Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”
“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.
Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.
“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”
Virginia Gov explains his big decision to use his clemency power to restore franchise
I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons. Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:
We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.
The 1965 Voting Rights Act eliminated many of those barriers. However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole. Over the last two years, our administration has worked tirelessly to simplify the restoration process. We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.
We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.
While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship. [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.
This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury. It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society. And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.
Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences. I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term. Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again. And who have broken down in tears as I signed their restorations on “the best day of their lives.”
If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"
The title of this post is the title of this new programming publication from the US Department of Justice. Here is part of its "Overview":
Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons. Another 11.4 million individuals cycle through local jails. And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past. Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....
The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend. These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system. This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.
Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities. In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry. The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.
To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry. These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.
The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities. Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.
April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Monday, April 25, 2016
"A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities"
The title of this post is the title of this recently-released policy report from The Annie E. Casey Foundation. Here is how the report's introduction get started:
The saying is all too familiar: Do the crime, do the time. But in America’s age of mass incarceration, millions of children are suffering the consequences of their parents’ sentences and our nation’s tough-on-crime practices.
These children feel the absence of that adult — whether it is several nights in jail or years in prison — in myriad ways, even if they weren’t sharing a home. They feel it when their refrigerator is bare because their family has lost a source of income or child support. They feel it when they have to move, sometimes repeatedly, because their families can no longer afford the rent or mortgage. And they feel it when they hear the whispers in school, at church or in their neighborhood about where their mother or father has gone.
Incarceration breaks up families, the building blocks of our communities and nation. It creates an unstable environment for kids that can have lasting effects on their development and well-being. These challenges can reverberate and multiply in their often low-income neighborhoods, especially if they live in a community where a significant number of residents, particularly men, are in or returning from jail or prison. And different obstacles emerge once parents are released and try to assume their roles as caregivers, employees and neighbors.
This report recommends policies and practices that put the needs of children of incarcerated parents first. We call on correctional systems, communities and state and local public agencies to help stabilize families and preserve their connections during incarceration — and successfully move forward once parents come home.
Sunday, April 24, 2016
American Enterprise Institute leader explains why we need to reform "the status quo in criminal justice"
Arthur C. Brooks, president of the American Enterprise Institute (AEI), has this notable new commentary explaining the role his organization is playing in National Reentry Week and in broader criminal justice reform efforts. (For those who do not know, AEI is a public-policy group "committed to expanding liberty, increasing individual opportunity and strengthening free enterprisehe status quo in criminal justice," with GOP politicians like Dick Cheney and Peter Coors and many corporate titans on its Board of Trustees.) The piece is titled "Reforming the status quo in criminal justice," and here are excertps (with links and emphasis from the original):
On Monday morning, AEI is co-hosting a discussion on America’s criminal justice system with the White House and the Brennan Center for Justice. The event will kick off at 10:00 am EDT on Monday April 25 in the Eisenhower Executive Office Building, next door to the White House. You can livestream my introductory remarks and the entire event on the White House’s website, and our team will be sharing parts of it in real time on Twitter.
At first blush, this kind of event might seem a little unusual. A Democratic administration, a major university’s criminal justice center, and a free-enterprise-focused think-tank coming together to discuss mass incarceration? That kind of diverse collaboration is not exactly commonplace in Washington, D.C.
But we believe that collaboration and open discussion are possible across the political spectrum. We jump at opportunities to bring our principles into good-faith dialogue and debate with colleagues of all views on critical subjects. (For more on this subject, check out a recent interview I gave to the “TED Radio Hour” podcast.)
Data show that only about one-third of incarcerated Americans get to participate in any education, vocational, or pre-release programs while behind bars. One professor who studies our prison population estimates that roughly half of all people in prison are functionally illiterate. And partially as a result of these factors, roughly two-thirds of all parolees wind up back in prison within three years of their release.
To be sure, excessive spending and economic inefficiency are serious consequences of this inefficient system. But the heaviest costs that America bears for this human capital tragedy are not material. They are moral. When we talk about a person who comes out of prison barely able to read and utterly unprepared for citizenship, we are talking about a person stripped of his basic dignity. When we see a person who is asked to re-enter productive society but has no plausible job prospects, we are looking at someone whose human potential has been badly stunted....
Through action and inaction alike, our society has effectively decided that there are millions of our brothers and sisters, the incarcerated and the formerly incarcerated, whom we simply do not need. At worst, we view them as human liabilities we must coexist with and manage at minimal cost; at best, as people we can tolerate and try to help. But as dormant assets to be enlivened and empowered? Hardly ever.
If we committed ourselves and our society to the moral principle that we need to need everyone, how would criminal justice policy change? That’s a question we at AEI are dedicated to exploring. My colleagues’ fascinating work on this topic already speaks for itself, and the year ahead will see us continue expanding our work on inmate education and re-entry.
A few recent related posts:
- Economists explain "Why Mass Incarceration Doesn’t Pay"
- "Department of Justice to Launch Inaugural National Reentry Week"
- White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
Saturday, April 23, 2016
White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:
Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.
Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....
Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.
- Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
- Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
- Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.
Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.
- Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
- Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....
Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.
- Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
- Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
- CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
- We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
- At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
- Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.
Friday, April 22, 2016
"Department of Justice to Launch Inaugural National Reentry Week"
The title of this post is the title of this official US Department of Justice press release. Here are excerpts from the release and details on a few of the planned events of the week that I am especially interested in:
As part of the Obama Administration’s commitment to strengthening the criminal justice system, the Department of Justice designated the week of April 24-30, 2016, as National Reentry Week. Attorney General Loretta E. Lynch and U.S. Department of Housing and Urban Development Secretary Julián Castro will travel to Philadelphia on MONDAY, APRIL 25, 2016, to hold events as part of National Reentry Week with public housing advocates, legal services providers and community leaders where they will announce new efforts to improve outcomes for justice-involved individuals including youth.
Later in the week, the Attorney General will visit a Federal Bureau of Prisons (BOP) facility in Talladega, Alabama, to highlight reentry programs in prison. Similarly, Deputy Attorney General Sally Q. Yates will visit a federal women’s prison in Texas and will later hold a media availability at Santa Maria Hostel, a specialized residential substance abuse, mental health and trauma facility. Acting Director Thomas Kane of the Bureau of Prisons will accompany both Attorney General Lynch and Deputy Attorney General Yates on their visits....
The Obama Administration has taken major steps to make our criminal justice system fairer, more efficient and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities. Removing barriers to successful reentry helps formerly incarcerated individuals compete for jobs, attain stable housing, and support their families. An important part of that commitment is preparing those who have paid their debt to society for substantive opportunities beyond the prison gates, and addressing collateral consequences to successful reentry that too many returning citizens encounter.
Leadership from across the Administration are traveling during National Reentry Week in support of these many events and are encouraging federal partners and grantees to work closely with stakeholders like federal defenders, legal aid providers and other partners across the country to increase the impact of this effort. National Reentry Week events are being planned in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. U.S. Attorney’s Offices alone are hosting over 200 events and BOP facilities are holding over 370 events....
• On Monday, April 25, 2016, the White House will hold an event with the Brennan Center on the costs of incarceration.
• On Monday, April 25, 2016, Deputy Attorney General Sally Q. Yates will deliver remarks before a screening of “Pull of Gravity” a documentary that follows returning inmates as they encounter reentry obstacles, hosted by the Justice Department as part of National Reentry Week. Assistant Attorney General Leslie R. Caldwell of the Criminal Division will also participate....
• On Wednesday, April 27, 2016, the White House will host the Fair Chance Opportunities Champions of Change event in South Court Auditorium. Attorney General Loretta E. Lynch will deliver remarks and Deputy Attorney General Sally Q. Yates will moderate a panel at the event....
• On Thursday, April 28, 2016, the head of the Civil Rights Division, Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division will deliver remarks at a reentry event at Mickey Leland Transitional Housing Facility, sponsored by the U.S. Attorney’s Office for the District of Columbia....
Wednesday, March 30, 2016
Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law
As reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:
A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.
The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.
The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.
“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.
The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.
The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....
Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.
Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”
International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.
Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”
March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)
Thursday, March 24, 2016
"To change the world, start with prisons"
The title of this post is the headline of this notable FoxNews commentary authored by Christian Colson. Here are excerpts:
One Easter weekend, I accompanied my father, Charles Colson, to a prison in South Carolina. We held a worship service on Death Row, and about 20 men came out of their cells to sing songs and listen to my dad give a message about the resurrection of Jesus.
My father, whose books on Christian life and thought have sold more than 5 million copies, could have spent Easter weekend in more influential pulpits. He could have commanded an audience of thousands of Christians who were well-resourced and well-connected, rather than men in prison jumpsuits. But instead, every Easter for decades following his release from prison in 1975 for a Watergate-related crime until his death in 2012, he chose to go back behind bars to celebrate with the incarcerated. My father understood that if we want to change the world, we must start behind bars.
The criminal justice system may not seem like the place to initiate cultural renewal, but no place could be better. When our nation’s 2.2 million prisoners are held in conditions that do little to help address the roots of criminal behavior, they remain likely to continue in a criminal lifestyle after they are released.
Prisoners might seem like improbable standard bearers for cultural transformation, but my dad believed wholeheartedly that whenever prisoners are transformed, they will transform the culture of their prisons and society at large....
Prisons are full of untapped potential. Under the right conditions, many people — like my father — can pay their debt to society, prepare for a new future and make the most of their second chance. A variety of prison programs that address the roots of criminal behavior through education, mentoring, substance-abuse treatment and more have been shown to reduce recidivism.
Legislation based on restorative values can support this goal. The Sentencing Reform and Corrections Act, now making its way through Congress, would require the Federal Bureau of Prisons to implement and incentivize programming to reduce rates of re-offense. This is good news not just for prisoners but for everyone affected by crime and incarceration. When recidivism rates go down, more children grow up seeing their parents outside of a prison waiting room. There are fewer victims. Communities have a chance to flourish as they benefit from the contributions of members who are successfully reintegrating.
At the first Easter, mourners gathered at the tomb of a man who had been executed with criminals. There seemed to be no future for his followers, a small group of poorly educated misfits with no worldly power or influence. And yet, the nascent Christian movement transformed the culture of the Roman Empire and the entire modern history of the world.
When my dad spent “Resurrection Sunday” behind bars with prisoners, including those condemned to die, he often invoked that first Easter, where the hope of the Gospel emerged from a sealed tomb that was supposed to be as secure as any prison.... As Easter reminds us, the change the world most needs sometimes comes from unexpected places.
Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?
The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments. Here are details on how Utah is engaged in an alternative sanctions experiment:
States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime. An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.
They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.
The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”
The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.
Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.
The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.
Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....
Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.
Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”
Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”
The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.
Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.
The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.
State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”